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Oil-Dri Corporation of America v. Nestle Purina Petcare Co.

United States District Court, N.D. Illinois, Eastern Division

March 31, 2017

OIL-DRI CORP. OF AMERICA, Plaintiff/Counter-Defendant,
v.
NESTLE PURINA PETCARE CO., Defendant/Counter-Plaintiff.

          MEMORANUM OPINION AND ORDER

          AMY J. ST. EVE, District Court Judge

         Defendant Nestle Purina Petcare Co. (“Purina”) has moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff Oil-Dri Corporation of America's (“Oil-Dri”) patent-infringement action to the extent that it relies on certain claims in U.S. Patent No. 5, 975, 019 ('019 Patent) that include the limitation of an “organic clumping agent.” (R. 81 at 1.)[1]For the following reasons, the Court grants Purina's motion without prejudice.

         BACKGROUND[2]

         I. The Patent-in-Suit

         The '019 Patent, entitled “Clumping Animal Litter, ” was filed on August 19, 1997. (R. 77-1, '019 Patent, 1.) The Abstract of the patent describes “[a] clumping animal litter utilizing the interparticle interaction of a swelling clay, such as sodium bentonite, in combination with a non-swelling clay material.” (Id.) Additionally, the patent's abstract discloses that “[p]referably, sixty percent (60%) by weight, or less, composition of sodium bentonite is used after the judicious selection of particle size distribution such that the mean particle size of the non-swelling clay material is greater than the mean particle size of the sodium bentonite.” The abstract further indicates that “an organic clumping agent, such as pregelatinized corn starch can be combined with the sodium bentonite/clay mixture to enhance clumping properties.” (Id.)

         The '019 Patent has three independent claims. Claim 1 is:

A clumping animal litter comprising:
a. a particulate non-swelling clay having a predetermined mean particle size no greater than about 4 millimeters; and b. a particulate swelling clay having a predetermined mean particle size no greater than about 2 millimeters, wherein the mean particle size of the non-swelling clay material is greater than the mean particle size of the swelling clay.

(Id. at col. 9:37-46.) Claim 21 is:

A clumping animal litter comprising:
a. a particulate non-swelling clay material in the amount of at most about 60 percent by weight of the animal litter, the material having a predetermined mean particle size;
b. a particulate swelling clay in the amount of at least about 40 percent by weight of the animal litter, the material having a predetermined mean particle size, and wherein the mean particle size of the non-swelling clay material is greater than the mean particle size of the swelling clay;
c. an organic clumping agent in an amount within the range of about 0.25 percent by weight to about 6 percent by weight of the animal litter; and d. wherein the ratio of the mean particle size of the non-swelling clay material to the mean particle size of the ...

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