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SAES GETTERS, S.P.A. v. ERGENICS

June 16, 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

 I. INTRODUCTION

 This matter comes before the undersigned on plaintiff's application for a preliminary injunction prohibiting defendant Ergenics, Inc. from infringing United States Patent Number 4,312,669 (the "Boffito patent"). The parties have consented to have plaintiff's application heard and decided by the undersigned. An Order referring these proceedings to the undersigned was issued by the Honorable Harold A. Ackerman. An evidentiary hearing was held on March 17 and March 18, 1992; oral argument was heard on June 1, 1992.

 II. PROCEDURAL BACKGROUND

 This action was commenced by plaintiff Saes Getters, S.p.A. ("Saes") on February 17, 1989. The original Complaint alleged that defendant Ergenics, Inc. ("Ergenics") infringed U.S. Patent Number 3,926,832 (the "Barosi patent"). Saes subseguently amended its Complaint to allege that Ergenics also infringed the Boffito patent through its marketing of products called HY STOR 402 and HY STOR 402C. On April 9, 1990, following an evidentiary hearing, Judge Ackerman issued a preliminary injunction prohibiting Ergenics from infringing the Barosi patent. See 15 U.S.P.Q. 2d. 1212 (D.N.J. 1990). On July 30, 1990, Judge Ackerman issued a similar preliminary injunction against Ergenics's infringement of the Boffito patent through the marketing of HY STOR 402 and HY STOR 402C. See 17 U.S.P.Q. 2d. 1581 (D.N.J. 1990). In each case, Judge Ackerman concluded that, while Ergenics did not literally infringe Saes's patents, infringement could be found under the doctrine of equivalents.

 Thereafter, Ergenics began marketing a new product, HY STOR 405. Saes further amended its Complaint to allege that HY STOR 405 infringed the Boffito patent. Saes then moved for a preliminary injunction to enjoin Ergenics from marketing this product and for partial summary judgment upholding the validity of the Boffito patent. In an Opinion and Order issued this same date, the Court has granted Saes's motion for partial summary judgment.

 The Boffito patent is a process patent. It covers a "gettering" process, which is a process used to maintain a vacuum in various products, such as cathode ray tubes. Specifically, the Boffito patent encompasses a gettering process capable of sorbing water, water vapor, and other gases at low temperatures and at low pressures, without the release of hydrogen. A particular advantage of this process is that the getter can be activated at temperatures lower than those used in prior processes. As conceded by Dr. Gary Sandrock, Ergenics's expert, the Boffito patent is the "first commercially successful metal getter, nonevaporable getter, that could be activated at low temperature." Deposition of Dr. Gary Sandrock at 36.

 Claims 1 and 3 of the patent are representative of the patent's claims. *fn2"

 Claim 1 of the patent specifies the composition of the getter metal to be used in the process and calls for 45-75 percent by weight zirconium, 20-50 percent by weight vanadium, and 5-35 percent by weight iron. Id. P 7. Specifically, claim 1 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 non-evaporable 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.

 See Plaintiff's Bench Book of Exhibits ("Plaintiff's Exhibit"), Exhibit A at col. 7 (emphasis added).

 Similarly, claim 3 of the patent states:

 We claim:

 1. A process for the sorption of gas from closed vessels comprising the steps of:

 (A) introducing into the vessel a non-evaporable 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 [iron] lies ...


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