Atlas Powder Co. v. E.I. du Pont De Nemours & Co.

Atlas Powder Co. v. E.I. du Pont De Nemours & Co.

Opinion

 [***409]   [*1571]  BALDWIN, Circuit Judge.

This is an appeal by E.I. du Pont De Nemours & Co. and its customer Alamo Explosives Co., Inc. (collectively, "Du Pont"). The appeal is from a final judgment of the United States District Court for the Northern District of Texas holding product claims 1-5, 7, 12-14, and 16-17 of U.S. Patent No. 3,447,978 ( '978 patent), issued to Harold Bluhm on June 3, 1969 and assigned to the Atlas Powder Co. ("Atlas"), not invalid under [**2]  35 U.S.C. §§ 102, 103, and 112, not fraudulently procured, and infringed. We affirm.

Background 

The district court opinion, reported at 588 F. Supp. 1455, 221 U.S.P.Q. (BNA) 426 (1983), contains a detailed description of the facts, familiarity of which is presumed herein.

Briefly, the '978 patent relates to blasting agents, i.e., chemical mixtures that are relatively insensitive to normal modes of detonation but can be made to detonate with a high strength explosive primer. By the mid-1960's, blasting agents consisted of two major types: "ANFO" and "water-containing".

An "ANFO" blasting agent comprised a mixture of particulate ammonium nitrate, usually in the form of small round aggregates known as "prills", and fuel oil (e.g., diesel fuel). They were widely used in mining and construction because of their low cost, ease of handling, and ability to be mixed at the blast site rather than prepackaged at the plant. However, to work properly they could be used only in "dry" holes (without water) because water desensitized the mixture, rendering it nondetonable.

A "water-containing" blasting agent, which was water resistant, generally comprised a slurry of particulate [**3]  ammonium nitrate (or other oxidizing salt), a solid or liquid fuel, at least 5 percent water, and, as a sensitizer to increase explosive power, either a high explosive such as TNT or a chemical [***410]  such as nitric acid. Often, a gelling agent was added, particularly in the chemical sensitized slurries, to prevent the separation of sensitizers from slurry by  [*1572]  forming a gel (a colloid in which the disperse phase has combined with the continuous phase to produce a viscous, jelly-like product). The use of sensitizers in water-containing blasting agents made preparation and handling more difficult and dangerous and, hence, more costly.

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