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

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

February 26, 2018

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

          MEMORANDUM OPINION AND ORDER

          AMY J. ST. EVE United States District Court Judge.

         On December 8, 2017, Plaintiff Oil-Dri Corp. of America (“Oil-Dri”) served its Final Infringement Contentions pursuant to Northern District of Illinois Local Patent Rules (“LPR”) 3.1 and 3.3 and the Court's November 15, 2017 Amended Scheduling Order. Before the Court is Defendant Nestlé Purina Petcare Co.'s (“Purina”) motion to strike Oil-Dri's Final Infringement Contentions for failing to comply with the LPR and the Court's Amended Scheduling Order. For the following reasons, the Court, in its discretion, grants in part and denies in part Purina's motion to strike. The Court grants Oil-Dri leave to amend its Final Infringement Contentions as to the direct infringement contentions discussed in detail below. Oil-Dri's Amended Final Infringement Contentions are due on or before March 5, 2018.

         FACTUAL BACKGROUND

         Oil-Dri brings the present infringement lawsuit in regard to U.S. Patent No. 5, 975, 019 (‘019 Patent), entitled “Clumping Animal Litter, ” filed on August 19, 1997 and issued on November 2, 1999. (R. 77-1, ‘019 Patent; R. 77, Am. Compl. ¶ 6.) In particular, Oil-Dri alleges that some of Purina's “Tidy Cats” clumping cat litters infringe the ‘019 Patent, including, Instant Action, Dual Power, 24/7 Performance, 4-in-1 Strength, Glade® Tough Odor Solutions, Breathe Easy, Small Spaces, Occasional Cleaning, Active Spaces, Crystals Blend, Power Blend, Fall Frolic, Spring Breeze, Summer Twist, Coastal Grove, Mountain Escape, and Secret Garden (“Accused Products” or “Accused Instrumentalities”). (Am. Compl. ¶¶ 7, 8; R. 2-19, Ex. A, Final Infringement Contentions a-b, at 1-2.)

         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.” In addition, the 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 '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; Am. Compl. ¶ 9.) 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 swelling clay is within the range of more than about 1:1 to about 4:1.

(Id. at col. 10:32-49.) Last, Claim 30 is:

A method for making a clumping animal litter comprising the steps of:
a. combining a particulate non-swelling clay material with a suitable particulate swelling clay to form a composition wherein the mean particle size of the particulate non-swelling clay is greater than the mean ...

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