Atlas Powder Company v. E.I. Du Pont De Nemours & Company

750 F.2d 1569 (1984)

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Nature of the Case

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Facts

The '978 patent relates to blasting agents, i.e., chemical mixtures that are relatively insensitive to normal modes of detonation but can be made to detonate with a high strength explosive primer. By the mid-1960s, blasting agents consisted of two major types: 'ANFO' and 'water-containing.' ANFO is a mixture of particulate ammonium nitrate, usually in the form of small round aggregates known as 'prills', and diesel fuel. They could be used only in dry holes (without water) because water desensitized the mixture, rendering it nondetonable. A 'water-containing' blasting agent is a slurry of particulate ammonium nitrate, a solid or liquid fuel, at least 5 percent water, and, as a sensitizer to increase explosive power, either a high explosive such as TNT or a chemical such as nitric acid. A gelling agent was added to prevent the separation of sensitizers from slurry. Preparation and handling were both difficult and dangerous. Atlas' (P) slurry blasting gell was called Aquanite. It was highly caustic to skin and clothing and tended to separate out of the product even in the presence of a gelling agent. Aquanite was 'hypergolic', i.e., it ignited wood, coal and various chemicals upon contact, which was suspected of causing the blasting agent to detonate prematurely. P assigned Harold Bluhm to investigate stabilizing its Aquanite gel. Bluhm succeeded and formulated an intimately mixed water-in-oil, water-resistant emulsion blasting agent which resulted in the '978 patent. D formed a team to study the feasibility of an emulsion blasting agent. The team succeeded in making a water-in-oil emulsion blasting agent which D began making and selling in August 1978. P sued for infringement in December 1979. D asserted the invalidity of the '978 patent under sections 102(a), 103, and 112, 'fraud' on the Patent and Trademark Office (PTO), and noninfringement. The court held that: (1) the claimed invention was not anticipated by the prior art; (2) the claimed invention would not have been obvious in view of the prior art; (3) the claims were not invalid for the patent's failure to comply with the 'best mode', enablement, and 'overclaiming' requirements of § 112; (4) the patent was not procured by 'fraud' on the PTO; and (5) D's products infringed the claims under the doctrine of equivalence. D appealed.