Atlas Powder Company v. Ireco Incorporated

190 F.3d 1342 (Fed. Cir. 1999)

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Nature of the Case

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Facts

Explosions require both fuel and oxidizers. If the oxidizer rapidly reacts with the fuel, it will produce expanding gases and heat - an explosion. The most widely used and economical composite explosive is ammonium nitrate and fuel oil (ANFO). ANFO is usually 94% by weight of ammonium nitrate (AN), the oxidizer, with 6% by weight of fuel oil (FO). But AN may include porous prills, dense prills, Stengel flakes, or crystalline AN. Wet conditions dissolve the AN and make the explosive unusable in damp settings. ANFO is a relatively weak explosive because air occupies considerable space in the mixture decreasing the amount of explosive material per unit of volume. The oxidizer is dissolved into water and then dispersed the new solution is dispersed in oil. The oil makes the oxidizer resistant to moisture, and the density of explosive material in the mixture is increased making the potential explosion more powerful. The emulsion itself is will detonate easily if gassing agents or microballoons are added throughout the mixture. The gassing agents or microballoons provide tiny gas or air bubbles throughout the mixture. Upon detonation, the gas pockets compress and heat up, thereby igniting the fuel around them. The tiny gas or air bubbles act as 'hot spots' to propagate the explosion. The Clay patent and its reissue both claim composite explosives made from the combination of an ANFO blasting composition and an unsensitized water-in-oil emulsion. Both patents claim essentially the same blasting composition. Atlas was the exclusive licensee under the Clay patent. Atlas sued D alleging infringement. Dr. Robert Clay, the inventor, filed a reissue petition with PTO. The district court denied Atlas' motion to stay and conducted a bench trial on the issues of validity and infringement of the Clay patent in October 1986. Dr. Clay then requested suspension of prosecution of the reissue application by the PTO in February 1987. After waiting several years for a decision from the district court, Dr. Clay requested that the PTO reinstate the reissue proceedings in 1990. In January 1992, the Clay reissue patent was issued upon surrender of the original patent. The district court rendered its findings and judgment regarding the validity and infringement of the Clay patent. The district court found claims 1, 2, 3, 10, 12, 13, and 14 of the Clay patent invalid as anticipated by either one of two prior art references, Egly or Butterworth. They disclose blasting compositions containing a water-in-oil emulsion and ANFO with ingredients identical to those of the Clay patents in overlapping amounts. The Clay patent claims an additional element to the recipe that is arguably not present in the prior art compositions. This is 'sufficient aeration . . . entrapped to enhance sensitivity to a substantial degree.' The trial court ruled that 'sufficient aeration' was an inherent element in the prior art blasting compositions within the overlapping ranges. The district court also found that none of the accused products infringed any of the asserted claims. The decision specifically reserved further modification based on the effect of the reissue patent for phase two of the case. On September 22, 1993, the district court granted P's motion to intervene in the lawsuit, and eventually, P was given the sole right to control and direct the litigation on the two patents. After the reissue, a second bench trial was held. Despite the PTO's consideration of the Egly and Butterworth references during the prosecution of the reissue, the district court concluded that D had overcome the Clay reissue patent's presumption of validity by clear and convincing evidence. P appealed.