Citations
- 375 F.3d 1341
Full opinion text
GAJARSA, Circuit Judge.
Swift-Eckrich, Inc. (d/b/a ConAgra Refrigerated Foods) (“ConAgra”) appeals the judgment of the United States District Court for the Western District of Oklahoma following a jury verdict, granting the claims of Unitherm Food Systems, Inc. (“Unitherm”) and of Jennie-0 Foods, Inc. (“Jennie-O”) (collectively, “plaintiffs”) that ConAgra was liable for attempted monopolization and for tortious interference with prospective economic advantage, and that same court’s earlier partial summary judgment finding U.S. Patent No. 5,952,027 (“the '027 Patent”) invalid and unenforceable under 35 U.S.C. § 102(b) and dismissing ConAgra’s counterclaim for infringement. Unitherm Food Systems, Inc. & Jennie-O Foods, Inc., v. Swift-Eckrich, Inc., Case No. CIV-01-347-C (W.D.Okla, March 27, 2003).
The district court construed the disputed claim terms in the '027 Patent correctly, and properly found the '027 Patent invalid and unenforceable for reasons of both prior use and prior sale under 35 U.S.C. § 102(b). The district court was also correct, under Oklahoma law, in allowing the jury to decide the issue of tortious interference and in accepting the jury’s findings on both liability and damages. The district court erred, however, in allowing the jury to decide Unitherm’s antitrust claims despite the total absence of economic evidence capable of sustaining those claims. We therefore affirm-in-part, vacate-in-part, and remand to the district court for further proceedings consistent with this opinion.
BACKGROUND
A. The '0%7 Patent
On May 11, 1998, a ConAgra engineer named Prem Singh filed a patent application for “A Method for Browning Precooked Whole Muscle Meat Products” with the United States Patent and Trademark Office (“PTO”). That application became the '027 Patent, which the PTO issued to Singh on September 14, 1999. Singh assigned the patent to ConAgra.
In early 2000, ConAgra wrote to several companies who sell equipment and/or processes for preparing and browning precooked meats. ConAgra attached a copy of the '027 Patent to that letter, which included the explicit warning: “Others in the industry may approach your company regarding this patent, and we would appreciate it if you would inform them that we intend to aggressively protect all of our rights under this patent.”
Unitherm, which describes itself as “a manufacturer and supplier of equipment and processes used in the food industry,” did not receive one of ConAgra’s letters. Unitherm, however, believed — and asserts as the basis of this suit — that its President, David Howard, had conceived the process claimed in the '027 Patent and reduced it to practice as the “Unitherm process” no later than September 1993.
In July 2000, ConAgra sent out another round of letters, this set to its direct competitors in the pre-cooked meats business. ConAgra attached both a copy of the patent and a blank license to this letter, and announced that it was “making the '027 Patent, and corresponding patents that may issue available for license at a royalty rate of 10