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August 7, 1995

C&F PACKING CO., INC., Plaintiff,
IBP, INC. and PIZZA HUT, INC., Defendants.

The opinion of the court was delivered by: MARTIN C. ASHMAN


 This case is presently before the Court on Defendants', IBP, Inc. ("IBP") and Pizza Hut, Inc. ("Pizza Hut"), motion for summary judgment and Plaintiff's, C&F Packing Co., Inc. ("C&F"), motion to strike Defendants' reply briefs and response to C&F's 12(N) Statement. C&F filed its original complaint on March 17, 1993 against IBP, and subsequently filed a nine-count second amended complaint on May 14, 1993 against IBP and Pizza Hut seeking injunctive relief in addition to compensatory and punitive damages. At issue in this motion is Count V wherein C&F alleges that IBP infringed on C&F's Patent No. 4,800,094 entitled, "METHOD FOR PROCESSING A COOKED FOOD PRODUCT" ("'094 patent") Specifically, C&F alleges that IBP made and sold meat products in the United States using a process that practices the inventions claimed in the '094 patent. Additionally, in Count V, C&F alleges that Pizza Hut induced and aided this infringement. *fn1" The pending motions were fully briefed on November 30, 1994 and December 8, 1994, respectively; this case was reassigned to this Court on February 17, 1995 and oral argument took place on May 12, 1995.


 The relevant and undisputed facts follow: *fn2"

 C&F is assignee of the '094 patent, which was issued on January 24, 1989. *fn3" The '094 patent is directed to an "apparatus and method for processing a cooked food product and producing a plurality of cooked food product portions." As the '094 patent specification discusses, there are several patented devices relating to the extrusion and formation of food product portions from raw or frozen food mixtures. These processes and devices have been found to be slow and expensive. Further, the '094 patent specification identifies a recognized market for precooked food products of predetermined size which are readily usable in preparing specific food products (i.e., serving portions of meat or cheese for pizza toppings).

 The '094 patent states that the "present invention has reduced or eliminated the problems associated with devices and processes heretofore known." ('094 patent, Col. 1, lns. 67-68) This invention, as described in the specification, details a step by step method for producing a cooked food product which, when processed through an extrusion apparatus, can be divided into a plurality of cooked food portions having a predetermined weight.

 According to the specification's description of the invention, an emulsion is first formed from a combination of ingredients (i.e., food product, seasonings and liquid). This emulsion is then put into a mold and subsequently heated for the specific time at the specific temperature required to cook the food product. When cooked, the food product is cooled to a temperature between 35degree - 40degree F. to form a cooked food product loaf. This loaf is then placed in an extrusion apparatus wherein the loaf is forced at selectively variable pressures through an extrusion plate and subsequently extruded to form a plurality of elongated continuous lengths of cooked food product. Immediately on the other side of the extrusion plate these lengths of cooked food product are cut by a reciprocating blade whose rate of reciprocation, when coupled with the rate of extrusion, determines the thickness of cooked food product portions. These portions are then finally frozen for shipment. The result is a "unique, cost-effective, time saving method and apparatus" for processing a plurality of different shapes and sizes of cooked food products with very close weight tolerances which have the appearance of being hand formed. ('094 patent, Col. 1, lns. 59-64).

 The patent specification presents several embodiments of the invention which provide for the formulation of cooked food product portions having a variety of shapes, "including, but not limited to, randomly shaped portions, uniformly shaped portions and the like; and which may take on a hand formed appearance." ('094 patent, Col. 8, lns. 35-41). The specification further provides for variable adjustment of certain operational parameters to vary the thickness and weight of these portions. The specification expressly asserts that "no limitation with respect to the specific apparatus illustrated herein is intended or should be inferred." ('094 patent, Col. 8, lns. 48-51).

 The '094 patent specification concludes with some 25 claims of which five are classified as independent claims relating to the production of precooked food products: Claim Nos. 1, 7, 11, 20 and 25. Each of these claims sets forth a "method" for producing a precooked food product as above described and details an extrusion process wherein the food product is "extruded" or "forced" or "compressed" through an "extrusion plate" or "plurality of restrictive orifices" to form "a plurality of irregularly shaped continuous lengths of [cooked product or cooked emulsion]" or "lengths of irregularly shaped precooked sausage product". The final step in each claim is the "continuous," or "simultaneous," "dividing," or "cutting," of "said lengths" into "randomly shaped irregular" "portions" or "pieces." *fn4" (See '094 patent, Cols. 8-12).

 C&F produced precooked sausage pizza toppings and supplied them to Pizza Hut. However, in 1993 Pizza Hut terminated C&F's contract as a supplier.

 IBP is a Delaware corporation with corporate headquarters in Dakota City, Nebraska which operated a service center in Illinois and supplies meat products to a variety of customers throughout Illinois. IBP supplies meat products to Pizza Hut including precooked sausage pizza toppings. From November 1990 to January 26, 1994, IBP engaged in commercial production of precooked Italian sausage pizza topping. This process included the creation of "chubbs" comprised of raw meat and other ingredients stuffed into a sausage casing. The chubbs were then cooked, chilled, removed from the casing and halved. Subsequently, the chubbs were inserted into an extrusion apparatus wherein a hydrolic ram forced the chubbs through a dicing plate comprised of six columns and five rows of orifices shaped like equilateral triangles with rounded edges. The chubbs were thereby extruded into thirty separate continuous lengths of precooked sausage which were immediately cut by one wing of a three wing blade into individual Italian sausage pizza topping pieces. For the extrusion process, IBP used a Holac dicer with specially made extrusion plates.


 The claims at issue in this suit are Claims 1, 7 and 20-22. (C&F Response, p. 16). Claim 1 is the first independent claim contained in the '094 patent and reads as follows:

A method for forming, cooking and processing a meat or poultry containing food product comprising the steps of:
reducing the size of the food product by grinding, chopping, milling or comminuting said product to create a formable mass;
forming a defined product loaf from said formable mass;
cooking said product loaf through the application of heat;
positioning the cooked product loaf in an extrusion location on one side of an extrusion plate;
compressing at least a portion of said cooked product loaf to thereby extrude the cooked product loaf through said extrusion plate to form a plurality of irregularly shaped continuous lengths of cooked product; and
dividing said lengths of cooked product into a plurality of cooked product portions which have a handformed, randomly shaped irregular appearance and have a predetermined weight.

 Claim 7 is the second independent claim contained in the '094 patent and provides as follows:

A method for producing a plurality of pre-cooked meat product portions comprising the steps of:
forming a meat-containing emulsion from a meat product [sic]
placing said emulsion into a container having a defined shape;
cooking said emulsion in the container to thereby produce a cooked product loaf;
positioning said cooked product loaf in an extrusion location on one side of an extrusion plate;
maintaining force on said cooked product loaf such that said cooked product loaf is compressed and moved toward said extrusion plate;
extruding said cooked product loaf through said extrusion plate forming a plurality of elongated irregularly shaped continuous lengths of cooked product; and

 Claim 20 is the fourth independent claim contained in the '094 patent and states as follows:

A method for making a precooked sausage product suitable for use as a pizza topping comprising the steps of:
preparing an emulsion containing at least meat or poultry;
mixing a seasoning into said emulsion;
stuffing said emulsion into a sausage casing at a pressure sufficient to fill said casing and form a loaf of predetermined shape;
applying heat to the loaf for a time at a temperature sufficient to cook it;
cooling the cooked loaf;
removing the sausage casing from the cooked loaf;
forcing the cooked loaf by application of compressive forces through a plurality of restrictive orifices to form lengths of irregularly shaped precooked sausage product; and
simultaneously cutting said lengths of extruded precooked sausage product to form a plurality of randomly shaped irregular precooked sausage ...

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