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SAES GETTERS S.P.A. v. ERGENICS

June 15, 1992

SAES GETTERS S.P.A., Plaintiff,
v.
ERGENICS, INC., Defendant.


CHESLER


The opinion of the court was delivered by: STANLEY R. CHESLER

STANLEY R. CHESLER, U.S. MAGISTRATE JUDGE

 This matter comes before the Court on defendant's application for leave to amend the Final Pretrial Order to contest the validity of U.S. Patent Number 4,312,669 (hereinafter referred to as the "Boffito patent") and on plaintiff's cross-motion for summary judgment on the issue of validity. The parties have consented to have the undersigned hear and dispose of these and related motions. An Order referring these applications to the undersigned has been issued by the Honorable Harold A. Ackerman, U.S. District Judge. For the reasons set forth below, plaintiff's motion for summary judgment will be granted; defendant's motions are denied as moot.

 INTRODUCTION

 This action was commenced on February 17, 1989 by Saes Getters S.P.A. ("Saes") with the filing of a Complaint alleging that defendant Ergenics, Inc. ("Ergenics") had been infringing United States Patent No. 3,926,832 (the "Barosi patent"). On November 30, 1989, plaintiff amended the Complaint to assert that Ergenics had also infringed the Boffito patent. Subsequently, the Court issued a preliminary injunction enjoining Ergenics from infringing the Boffito patent through its sales of HY-STOR 402 and HY-STOR 402(C). See Saes Getters S.P.A. v. Ergenics Inc., 17 U.S.P.Q. 2d 1581 (D.N.J. 1990). *fn1" At the same time, the Court rejected defendant's motion for summary judgment based upon the asserted invalidity of the Boffito patent.

 The Boffito patent was issued in 1982 to cover a process for "gettering" gas using a combination of Zirconium, Vanadium, and Iron. Getters are used for such commercial purposes as maintaining a vacuum inside electron tubes. Getters do this by converting gases inside a container into solids, which then fall to the surface of the container. The conversion from gas to solid is conducted through a chemical reaction between the "getter" and the gas. As Judge Ackerman noted: "This function provides an explanation for the name of the device since the device is used to 'get' the gases inside the electron tube." 15 U.S.P.Q. 2d at 1213.

 The gettering process claimed in the Boffito patent permits water and water vapor to be "sorbed" at relatively low temperatures without releasing hydrogen and allows relatively low temperature "activation" of the getter. *fn3" Claims one and three of the Boffito patent are representative of the patent's claims.

 Claim one of the patent states:

 
We claim:
 
1. A process for the sorption of gas from a closed vessel comprising the steps of:
 
(A) introducing into the vessel a nonevaporable ternary gettering alloy whose composition in weight percent when plotted on a ternary composition diagram in weight percent Zr. [zirconium] weight percent V [vanadium] and weight percent Fe [iron] lies within a polygon having as its corners the points defined by:
 
a -- 75% Zr - 20% V - 5% Fe
 
b -- 45% Zr - 20% V - 35% Fe
 
c -- 45% Zr - 50% V - 5% Fe
 
(B) evacuating the vessel to a pressure of less than 10 (-2) torr
 
(C) activating the gettering alloy by heating the ternary alloy to a temperature of greater than 700 degrees C, and
 
(D) reducing the temperature to a value between 400 degrees and 25 degrees C.

 Plaintiff's Exhibit B. *fn4" Similarly, claim 3 of the patent states:

 
We claim:
 
1. A process for the sorption of gas from a closed vessel comprising the steps of:
 
(A) introducing into the vessel a nonevaporable ternary gettering alloy whose composition in weight percent when plotted on a ternary composition diagram in weight percent Zr. [zirconium] weight percent V [vanadium and weight percent Fe [iron] lies within a polygon having as its corners the points defined by:
 
a -- 75% Zr - 20% V - 5% Fe
 
b -- 45% Zr - 20% V - 35% Fe
 
c -- 45% Zr - 50% V - 5% Fe
 
(B) evacuating the vessel to a pressure of less than 10 (-2) torr
 
(C) activating the gettering alloy by heating the ternary alloy to a temperature of not greater than 450 degrees C for a time ...

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