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Arco won summary judgment in multidistrict litigation contesting the device and process used by companies remediating coal dust. Arco proved its case by showing that its chemical processing byproduct was inorganic, a main component of the dependent claim in the patent. In the multidistrict patent case, In Re: Manchak Patent Litigation, plaintiff Frank Manchak Jr. alleged that 12 companies had infringed on his ’003 patent before its June 7, 1994, expiration. The claims concerning the “Method of Transforming Sludge into Ecologically Acceptable Solid Material,” were consolidated in June 1998. In the case before District Judge Roderick McKelvie, who left the bench at the beginning of this month, three companies, Atlantic Richfield Co. (ARCO), District of Columbia Water and Sewer Authority (DCWASA) and Agronomics Management Group Inc. (AMG) filed for summary judgment. McKelvie granted summary judgment to Arco but denied DCWASA’s and AMG’s motions. Manchak accused Arco of infringing on his patent at its Anaconda, Mont., and Sand Springs, Okla., coal plants. According to the opinion, the Anaconda Mining Co. was a copper smelting facility from 1884 to 1980. The site was declared a Superfund site, and the EPA called for the cleanup of flue dust, which is a byproduct of copper smelting that contains high levels of heavy metal contaminants like cadmium, lead and arsenic. Arco hired ITEX Environmental Services Inc. to manage the remeditation. Manchak claimed that Arco’s Archon homogenizer used the same process as his to remediate the contaminants. THE PATENT CLAIM The ’003 patent protects a device and process that remediates “aqueous organic solutions containing sludge” by mixing them with calcium oxide, also referred to as lime in the patent. Mixing the sludge with calcium oxide at a predetermined rate produces an exothermic reaction and decreases the acidity of the solution to a pH of at least 12.1 As a result, the water in the sludge is converted to steam and the bacteria and viruses present are deactivated. The transformed sludge thereby becomes a “solid, friable and substantially odor free reaction product” that can be used for agriculture or disposed in landfills. A homogenizer was not an original component of Arco’s remediation process but was added to decrease the affect the flue dust had on the main equipment. It was similar to Manchak’s device in that water and lime were added to the flue dust and mixed with blade-like paddles. It differed, though, Arco said, in that the flue dust was inorganic and not sludge, and its by product was a slurry not a friable solid. Manchak removed his claim against the Oklahoma plant after summary judgment briefing in this case and also limited his claims against Arco to the homogenizer and not the entire process. One related action and a separate defense of the patent aided Arco in its defense. The previous litigation defined several key processes and terms that differentiated Arco’s homogenizer from Manchak’s. Early in the consolidated litigation, Manchak was asked to select one company to proceed against. He chose Sevenson. In that case, most ambiguous terms were defined and clarified, including: • Aqueous organic material containing sludge • Substantially insoluble compounds • A solid, friable, and substantially odor free reaction product • Initiated pH of at least 12 • Bacteria and virus initially present in said sludge are deactivated • Elongated confined space withdrawing said steam from said confined space • Major portion of said sludge is of marine origin. It also defined organic, friable, elongated confined space and withdrawing said steam from the elongated confined space. In Sevenson, the company was found to have infringed on independent Claim 1 and dependent Claims 2, 13, and 14 of the Manchak patent. However, on appeal, the Federal Circuit reversed the definition of “elongated confined space,” stating that in addition to confining the reaction product the space must also contain steam. This change in definition reversed the Sevenson decision because its device allowed steam to escape. Also in defense of his patent against the Fryklind patent, Manchak was forced to define the qualities of sludge. The sludge, as identified in Manchak’s patent, would have “a water content of not over 75 percent by weight.” These terms were relevant to determining if Arco’s flue dust met the criteria of the material that Manchak’s homogenizer was designed for. The flue dust, according to former Arco employee Barton Dent Richardson, was comprised of sandy soil, of which 5 to 10 percent was wet sand and about 1 to 2 percent was dry ash. The flue dust was labeled by Irfan Torr, a chemical engineer and former ITEX Environmental employee, as inorganic. He said any organic materials would have been burned, volatized or decomposed in the smelting process. In this case, Arco contested the previously determined definition of “organic,” from the Sevenson litigation. The objection led to the limiting of Claim 1 of the Manchak patent to “organic” sludges this also provided that the “identical processing of entirely inorganic material would not infringe claim 1 either literally or under the doctrine of equivalents.” Paul E. Crawford, James D. Heisman and Francis Di Giovanni of Wilmington, Del.’s Connolly Bove Lodge & Hutz represented Arco. They presented five bases why Arco’s homogenizer did not infringe on Manchak’s patent but the court granted summary judgment after the company proved its first argument: the sludge was inorganic. MAKING THE CASE Experts from Arco testified that the majority of its material, flue dust, was inorganic. It could not, however, say with certainty that its dust was 100 percent inorganic because some soil and clay were also processed with the material. Arco argued that clay is inorganic because it does not contain carbon. And that the soil had such a miniscule amount of organic material that it didn’t impact the process. A test of the soil near the flue dust piles showed that less than 1 percent and typically 0.3 percent of the material was organic. Following the Federal Circuit’s decision in CFMT Inc. v. Steag Microtech Inc., that if a function is performed to a trivial extent, then there is no infringement, the court concluded that Arco’s flue dust would be considered inorganic. McKelvie wrote that the “inclusion of a trivial quantity of organic material in the surrounding soil is merely an unintended byproduct in the Archon process. Given the trivial quantity of organic material and the speculative nature of the evidence that it was ever processed in the Archon units, the court concludes that no reasonable jury could find that Arco has infringed the ’003 patents either literally or under the doctrine of equivalents. The court did not rule on the other issues presented by Arco because they were moot after its material did not satisfy claim 1 of Manchak’s patent — that material be organic. McKelvie denied summary judgment to DCWASA and AMG. He found that DCWASA’s reaction products reasonably could be concluded as meeting Manchak’s friable limitation and be odor free, as well as its device might limit the steam to a “confined space” as in Manchak’s patent. McKelvie found that the questions of whether AMG’s process confined steam and removed it still existed. He also said some testimony indicated that AMG’s byproduct might be “friable.” Edward M. McNally of Wilmington, Del.-based Morris James Hitchens & Williams; Stephen D. Raber, Robert A. Van Kirk, Edward J. Bennett and Brian J. Buckelew of Williams & Connolly of Washington, D.C., represented plaintiff Manchak. Marcia H. Sundeen and Carl P. Bretscher of Pennie & Edmonds of Washington, D.C., represented the District of Columbia Water and Sewer Authority. Brian W. Erikson and Eric A. Zukoski of Quilling Sleander Cummiskery & Lownds of Dallas represented AMG.

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