Unilever PLC v. Procter & Gamble Inc.
T-2534-85
Muldoon J.
9/2/93
102 pp.
Patent for fabric softener expiring in 1994-Plaintiffs seeking declaration patent valid, damages and injunction for defendants' alleged patent infringement-Defendants counterclaim, seeking declaration patent invalid and impeachment of patent-Obiter: reform much needed in field of non-mechanical patents' litigation as judges unschooled in arcane subject (chemistry) at difficulty to know which of various "scientific verities" plausible-Materially same contentions as herein settled in United States District Court for New Jersey, by final consent order-Issue whether issue estoppel per rem judicatam preventing defendants from now attacking validity of patent-Res judicata not applicable: (1) pragmatic settlement not settling issue of patent infringement, nor validity of patent; (2) agreement limiting application thereof to "territory of the United States"; (3) extrinsic, oral evidence establishing agreement confirmed and expressly limited to U.S. patents and to territory of United States; nothing settled worldwide-Defendants therefore no more estopped than plaintiffs from alleging infringement-No estoppel by acquiescence-Delay, alone, not barring plaintiff, nor bespeaking acquiescence-Presumption of validity-On balance of probability, defendants failed to demonstrate invalidity-Defendants' attacks on patent for lack of inventiveness, novelty, utility, lack of conflict proceedings, or for obviousness, ambiguity and anticipation failed- No covetous claiming (claiming more than inventor truly invended or described in patent): Burton Parsons Chemicals, Inc. v. Hewlett-Packard (Canada) Ltd., [1976] 1 S.C.R. 555 and Monsanto Company v. Commissioner of Patents, [1979] 2 S.C.R. 1108-Supreme Court's recommendation in Burton Parsons to avoid being too technical, picky or too astute in invalidating patents, heeded-Infringement established: defendants infringed patent by means of employing distributing agent, sorbitan monstearate, SMS, mixed with fabric softening agent coated on backing strip or sheet of substance of those in their product "Bounce", in all formulations made or marketed in Canada-Plaintiffs awarded royalties on all sales of Canadian-made "Bounce", with pre-judgment interest on unliquidated claim from date of filing of statement of claim or earlier date as evidence discloses-No permanent injunction awarded (fact patent expiring in 1994 taken into consideration)-Party-and-party costs awarded plaintiffs.