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ECOLOCHEM, INC. v. MOBILE WATER TECH. CO.

June 30, 1988

ECOLOCHEM, INC., Plaintiff,
v.
MOBILE WATER TECHNOLOGY CO.,* Defendant


J. Smith Henley, United States District Judge.


The opinion of the court was delivered by: HENLEY

J. SMITH HENLEY, UNITED STATES DISTRICT JUDGE.

 This is an action brought by Ecolochem, Inc., a Virginia corporation, against Memphis Mobile Water Technology Co., an Arkansas corporation, to recover for Mobile Water's alleged infringement of Ecolochem's United States Patent No. 4,556,492 ('492 Patent). 35 U.S.C. § 271. Mobile Water stipulated that it has infringed several claims of the '492 Patent if it is valid. Mobile Water has asserted as its defense to Ecolochem's action that the '492 Patent is invalid. This court has original jurisdiction of this action pursuant to 28 U.S.C. § 1338(a). Further, this court also has jurisdiction pursuant to 28 U.S.C. § 1332(a) as the parties are diverse and the amount in controversy exceeds $ 10,000.00.

 At the parties' request, the court has ordered separate trials on the issues of Mobile Water's defense of invalidity and damages. See Fed. R. Civ. P. 42(b). The issue of invalidity has tried to the court, *fn1" and this memorandum incorporates the court's findings of fact and conclusions of law. Fed. R. Civ. P. 52.

 I. THE INVENTION.

 In the day-to-day operation of the power plant the feedwater is typically deoxygenated by a deaerating feedwater heater. This device, however, requires the use of steam which must be drawn off the system. Consequently, when the plant is initially starting up, or is restarting after a shutdown for maintenance, some other method of deoxygenating the feedwater is necessary. Ecolochem's process, which is the subject of the '492 Patent, was introduced to meet this need.

 The '492 Patent is a combination of several well known processes. The first step is the addition of hydrazine (N[2]H[4]) to the water to be deoxygenated. The hydrazine reacts with the dissolved oxygen to yield water and nitrogen gas. Because this reaction does not proceed quickly at low temperatures, the '492 Patent includes a second step of passing the water and hydrazine through a bed of activated carbon. The activated carbon catalyzes the hydrazine-oxygen reaction allowing it to proceed quickly at low temperatures. This two-step process was well known in the literature. See Houghton & Cuerdon, The Use of Active Carbon with Hydrazine in the Treatment of Boiler Feed Water, International Water Conference, Bournemouth, England pp. 54-58 (1957) (Def. Ex. 16) (throughout the record the parties refer to these first two steps of the '492 Patent as the Houghton process).

 The inventors of the '492 Patent, Ecolochem employees, analyzed the effluent from the Houghton process and determined that impurities were introduced by the process. Further analysis revealed a variety of ionic contaminants which the inventors concluded leached from the activated carbon. *fn3" Ecolochem experimented with a mixed bed ion exchange resin *fn4" downstream from the Houghton process in an effort to remove the ionic contaminants. The addition of the mixed bed resin achieved the desired result of removing the ionic contaminants. Ecolochem then tested the process on a larger commercial scale and decided to implement the process for commercial use. The entire apparatus was designed to be installed on a semi tractor-trailer so the process would be mobile and could be transported between cities as Ecolochem's deoxygenation services were needed. *fn5"

 Ecolochem first used the process commercially in the summer of 1983, under a secrecy agreement, at Southern California Edison's San Onofre nuclear generating facility. Southern California Edison was very pleased with the quality of water supplied by Ecolochem's process, and it proved to be both commercially feasible and profitable.

 On December 16, 1983, the inventors filed a patent application on the deoxygenation process. After being initially rejected, the '492 Patent was awarded on December 1, 1985.

 Mobile Water has commercially marketed a deoxygenation process which it admits infringes claims one through six, eight, nine, fifteen and sixteen of the '492 Patent. Ecolochem commenced this suit to enjoin the infringement and recover damages for past infringement. Mobile Water defends its activity alleging the '492 Patent is invalid on the basis of anticipation and obviousness.

 II. THE VALIDITY OF THE '492 PATENT.

 Ecolochem enjoys a presumption of validity in its patent. 35 U.S.C. § 282. The burden of proving invalidity rests on the challenger, Mobile Water, and that burden is one of clear and convincing evidence. Id.; Medtronic, Inc. v. Intermedics, Inc., 799 F.2d 734, 741, 230 U.S.P.Q. (BNA) 641 (Fed. Cir. 1986), cert. denied, 479 U.S. 1033, 107 S. Ct. 882, 93 L. Ed. 2d 836 (1987). In determining whether the challenger has met its burden, it is not the duty of this court to assume the role of "Super Patent Examiner" and determine whether the judge personally thinks the invention should or should not have been patented. Markey, On Simplifying Patent Trials, 116 F.R.D. 369, 375-76 (1987). Rather, it is the court's obligation to determine whether Mobile Water has carried its burden of clear and convincing proof of invalidity either by anticipation or obviousness.

 A. ANTICIPATION. A patent is invalid if "the invention was . . . described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent. . . ." 35 U.S.C. § 102(a). Appearance in a prior publication is termed anticipation. "Anticipation requires the disclosure in a single prior art reference of each element of the claim under consideration." W. L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1554, 220 U.S.P.Q. (BNA) 303 (Fed. Cir. 1983), cert. denied, 469 U.S. 851, 83 L. Ed. 2d 107, 105 S. Ct. 172 (1984). Mobile Water points to three prior art references as being anticipatory. The court will discuss each seriatim.

 1. The Martinola Article. In an article aimed at promoting a deoxygenation process utilizing hydrogen gas and palladium as a catalyst, deoxygenation with hydrazine was discussed in a section devoted to cost comparison of three methods of deoxygenation. Martinola, et al., "Saving Energy by Catalytic Reduction of Oxygen in Feedwater" in Proceedings 41st International Water Conference, Engineering Society of Western Pennsylvania, 77-83 (1980) (Def. Ex. No. 45). The Martinola article states, "When applying activated carbon as a catalyst in the removal of oxygen with hydrazine at ambient temperatures it has to be taken into account ...


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