Full opinion text
OPINION SUE L. ROBINSON, Chief Judge. I. INTRODUCTION Plaintiff Pechiney Rhenalu (“Pechiney”) filed this action against defendant Alcoa, Inc. (“Alcoa”) on May 12, 1999, seeking a declaratory judgment that its 2024A aluminum alloy product (“2024A alloy”) does not infringe Alcoa’s United States Patent No. 5,213,639 (the “ ’639 patent”) and that the ’639 patent is invalid, as well as seeking damages for Alcoa’s alleged tortious interference with Pechiney’s prospective business relations. (D.I.l) On February 29, 2000, Alcoa filed a counterclaim asserting that the 2024A alloy infringes the ’639 patent. (D.I.174) Pechiney filed an amended complaint in March 2000 adding a claim of inequitable conduct. (D.I.175) The parties later stipulated that they “withdraw with prejudice their pending requests for monetary relief, and further agree that no monetary relief (including damages) will be sought in this litigation.” (D.1.245) Following discovery, Alcoa offered Pe-chiney a covenant not to sue for infringement of the process, product-by-process, and certain product claims of the ’639 patent, consequently, these claims were dismissed from the case. (D.1.366) On December 22, 2000, the court held that claims 81 and 82 were invalid as to this action due to a typographical error. (D.I.385) From January 8, 2001 through January 18, 2001, the parties tried the issues of validity and infringement to a jury, and the issue of inequitable conduct to the court. During the trial, Alcoa offered Pe-chiney a covenant not to sue on several additional product claims, which were also dismissed. (D.I.410) At the close of trial, Alcoa was asserting infringement of sixty product claims of the ’639 patent. On January 18, 2001, the jury returned a verdict that the asserted claims are infringed by the 2024A alloy, not invalid as anticipated under the on-sale bar of 35 U.S.C. § 102(b), and not invalid as obvious under 35 U.S.C. § 103(a). (D.I.417) On March 29, 2001, the court entered judgment in favor of Alcoa and against Pechi-ney based on the jury’s verdict. (D.I.455) On September 28, 2001, following briefing and oral argument on post-trial motions, the court vacated the judgment based on the jury’s verdict pursuant to Tegal Corp. v. Tokyo Electron Am., Inc., 257 F.3d 1331 (Fed.Cir.2001), cert. denied, - U.S. -, 122 S.Ct. 1297, 152 L.Ed.2d 209 (2002), and ordered the parties to file proposed findings of fact and conclusions of law. (D.I.480) The court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1338(a), 2201 and 2202. The following are the court’s findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). II. FINDINGS OF FACT A. The Parties 1. Pechiney is a corporation organized and existing under the laws of France and having its principal place of business in Paris, France. Pechiney is a producer of aluminum and aluminum products, including aerospace alloys, which it sells in numerous countries, including the United States. (D.I. 424 at 1814). 2. Alcoa is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania and having its principal place of business in Pittsburgh, Pennsylvania. Alcoa is the world’s largest commercial producer of aluminum and aluminum alloys for aerospace applications, which it sells throughout the United States and the world. (Id. at 1814-15). B. The Field of the Invention 3. Aluminum alloy products have long been used as the primary building material for commercial aircraft because of their strength and damage tolerance in relation to weight. (Id. at 1815). 4. Strength refers to the stress an alloy is able to withstand without breaking. (D.I. 418 at 151-52). 5. Damage tolerance refers to the ability of an alloy to resist failure due to the presence of flaws, cracks or other damage for a specified period of usage. (D.I. 423 at 1339) Fracture toughness and fatigue crack growth rate are the damage tolerance properties of an alloy. (D.I. 418 at 154-61). 6. Fracture toughness is the measurement of an alloy’s ability to resist the extension of a crack, often measured in terms of the stress intensity factor (K) at which applying progressively greater stress to a structure that contains a preexisting crack causes the onset of rapid catastrophic propagation of that crack. (DX 188, col. 9, Ins. 55-58; D.I. 418 at 154) The fracture toughness values reported in the ’639 patent are referred to as Kc or Kapp values and measured in units of ksi in. (DX 188, cols. 10-11) Kc values are slightly higher than Kapp values for the same material because Kapp is based on initial crack strength and final failure stress. (D.I. 418 at 157-58). 7. Fatigue cracks in an airplane fuselage result from cycles of stressing and relaxing, such as the repeated loading and unloading that might occur as a wing moves up and down or a fuselage swells with pressurization and contracts with depressurization. (DX 188, col. 11, Ins. 55-60; D.I. 418 at 153) Fatigue crack growth rate is the rate of crack extension caused by these cycles, measured in terms of average crack extension per cycle (da/dN). (DX 188, col. 11, Ins. 56-67; D.I. 418 at 160-61) “ K” refers to the difference between the maximum and- minimum loads (in ksi in), and the “R ratio” refers to the ratio of minimum to maximum load. (D.I. 418 at 162) A “T-L” crack is one that is oriented in the longitudinal direction of the airplane fuselage, and an “L-T” crack is one that is oriented wing to wing across the top of the fuselage. {Id. at 158-160). 8.Damage tolerance in aluminum alloy products is impaired by the presence of undissolved particles, which facilitate crack growth and thereby reduce fracture toughness and increase an alloy’s fatigue crack growth rate. Iron (Fe) and Silicon (Si) particles are insoluble in aluminum, and can be reduced or minimized only by using a high-purity base aluminum material with smaller quantities of these impurities. (PX 585A; D.I. 421 at 813-17; D.I. 423 at 1342) Copper (Cu), Magnesium (Mg) and Manganese (Mn) are soluble in aluminum, but only up to a certain point. These particles may be reduced by controlling composition of the alloy so that the particles are limited to amounts that can be dissolved in the aluminum during the production process. {Id.) The soluble particles may also be reduced by using thermal treatments to dissolve them in the aluminum as much as possible. High-temperature heat treatments are desirable for this purpose because solubility limits are higher at higher temperatures. (PX 585A; D.I. 423 at 1346-47). 9. The typical production process for aluminum alloy products involves several steps. First, the aluminum elements are melted in a furnace and cast into solid ingots which, for aircraft applications, are typically 20 feet long, 14-16 inches thick, and 20,000 pounds in weight. {Id. at 365-67) Next, the ingot is heated in a furnace and, if desired, a layer of cladding is applied. {Id. at 369) Then, the heated ingot is “hot-rolled” to reduce its thickness. {Id. at 370, 380-81) Next, the material is subjected to a solution heat treatment, during which a high temperature is applied for a short time to move the elements within the material to their most beneficial positions. {Id. at 371-72) Finally, the material is “quenched” or rapidly cooled to lock the elements in those positions. {Id. at 372). 10. Aluminum alloy products are formed into either “sheet” or “plate.” Sheet products have a maximum thickness of 1/4 inches, whereas plate products have a maximum thickness of 5/8 inches. (DX 188, col. 6, Ins. 55-58, col. 10, Ins. 5-40) Airplane fuselage is made of aluminum sheet. (D.I. 418 at 212). 11. The Aluminum Association in Washington, D.C. has developed an International Alloy Designation System to designate the allowable range of composition of various common aluminum alloys. (D.I. 424 at 1815-16) All “2XXX” series alloys are comprised of wrought aluminum alloys in which the major alloying ingredient is copper. (Id.) The “2X24” or “2024-type” alloys are those with the principal alloying elements being copper, magnesium and manganese, and the Aluminum Association designation has set upper and lower percentage limits for each of these elements. (Id.) Iron and silicon are also present as impurities, and the Aluminum Association designation has set an upper percentage limit for each. (Id.). 12. For at least fifty years, the fuselage skin of many commercial aircraft has been manufactured with clad 2024-T3 alloys. (D.I. 424 at 1815-16; D.I. 418 at 170; D.I. 423 at 1339) “T3” refers to the heat treatment of the alloy. (D.I. 418 at 164). C. Development of Alcoa’s 2524 Alloy 1. Boeing’s Request for a New Alloy 13. Boeing is the only manufacturer of large commercial jet liners in the United States. (Id. at 183). 14. In late 1988, Boeing asked Alcoa to develop an improved aluminum alloy for use as the fuselage skin on the forthcoming new design 777 aircraft. (D.I. 424 at 1816; D.I. 418 at 205; DX 28) Boeing was looking for a material with improved fracture toughness and fatigue crack growth resistance to increase safety and reduce inspections and repair costs. The material had to be as strong and formable as 2024-T3, and resistant to corrosion. (DX 28; DX 35; DX 46; D.I. 418 at 208-10, 216, 222-23) Weight savings was also a concern for Boeing. (PX 2319). 15. Alcoa undertook to develop a new aluminum alloy to try to satisfy Boeing’s request. (D.I. 424 at 1816) Jocelyn Petit, an Alcoa metallurgist and a named inventor of the ’639 patent, was assigned to be initial project leader for the effort. (D.I. 418 at 204). 16. Ms. Petit developed a table of various candidate materials and properties from which Boeing could choose their desired combination of characteristics. (DX 29; D.I. 418 at 210-14) Boeing chose the “2XXX Goal 1” combination of properties, which had a 30% to 50% slower fatigue crack growth rate and a 20% to 30% higher fracture toughness compared to 2024, with equivalent strength. (DX 28; DX 35; D.I. 418 at 209-10, 219; D.I. 424 at 1780-81) To manufacture 2XXX Goal 1, Ms. Petit predicted that some combination of higher purity base metal, controlled Cu and Mg levels, and controlled thermal treatment (especially preheat, reheat and solution heat treatment) would be required. (PX 351 at 028333) She recognized that there was a trade-off between strength and damage tolerance properties which required a balancing act so that improving one would not degrade the other, but felt that Alcoa had a “good probability of technical success in producing an alloy with 2XXX Goal 1 properties.” (Id.; D.I. 418 at 226-27). 2. Jocelyn Petit’s May 1989 Report 17. In a May 1989 report to her colleagues, Ms. Petit stated that significant improvements in toughness could be made by one or more of the following approaches: improved base metal purity, controlled Cu and Mg levels, improved thermal practices, modification of dispersoid size and distribution, use of a coherent dispersoid former in place on Mn, refinement of grain size and cold work recovery processes. (DX 35 at 053172) She further reported that [a] new high toughness 2XXX alloy would serve a need for a better fuselage skin material which could potentially be commercialized and implemented within 3-10 years with only a moderate cost impact on the aircraft manufacturer. (Id. at 053173) 18. Ms'. Petit consulted prior work by Dr. James Staley, a senior Alcoa metallurgist, including a 1975 paper on 2124 sheet and March 1989 internal notes on the effect of microstructural features on toughness. (DX 35; D.I. 419 at 276-78)- Ms. Petit acknowledged data that indicated that “reduced levels of Fe and Si would significantly improve the toughness of 2024-T3 sheet.” (DX 35 at 053174) She also noted: Sparsely soluble constituent is also present in the 2024-T3 sheet. Much of the composition box for the 2024 alloy contains Cu and Mg in excess of the levels soluble with current preheat, reheat and solution heat treatment processes. This has the advantage of maximizing strength by assuring that Cu and Mg levels up to the solubility limit are in solution and will be available for precipitation strengthening. However, this does lead to retention of coarse S and phase particles in the microstruc-ture and reduction of toughness. Alloy 2124 for high toughness plate typically gets higher temperature, longer time preheat and reheat practices than does 2024. The preheat for 2024 calls for a 4r-hour soak at 870°F while the practice for 2124 calls for 30 hours at 910°F. Use of the more extensive 2124 practices could more thoroughly dissolve S and phases and improve toughness. An ideal high toughness 2XXX alloy would have lower amounts of both insoluble and sparsely soluble constituent, yet still retain Cu and Mg in levels high enough to achieve strengths equal to current 2024-T3. One scenario by which this could be achieved would be to select an alloy with lower maximum Fe and Si and with restricted Mg and Cu ranges. Restricted Cu and Mg operating ranges should be enabled by Daven- ' port’s cast to target procedures. This alloy would then be preheated under optimized conditions similar to those being developed by [Dr. Dhruba Chakra-barti, a senior Alcoa metallurgist] to minimize both furnace time and the amount of coarse second phase for 2124. (Id.) 19. Ms. Petit concluded: [A] 2XXX alloy and processing route could be developed that would have significantly higher toughness than current typical 2024-T8 sheet. The recommended approaches with a high probability of success of significant toughness improvement with minimal development time are: • use higher purity base metal (lower Fe and Si); • select Cu and Mg ranges and thermal treatments to maintain maximum levels of Cu and Mg in solution but minimize the levels of and S phase constituent. (Id. at 053176; D.I. 419 at 289-90) 20. In May 1989, Ms. Petit also obtained samples of 2124 sheet material that Alcoa had produced in 1985, which she submitted for testing. (DX 35; D.I. 419 at 290-92) The test results, received from an outside laboratory on June 2, 1989, reflected that the 2124 sheet had a Kc fracture toughness above 150 ksi in and a Kapp fracture toughness above 80 ksi in. (PX 303; D.I. 419 at 295-97; D.I. 424 at 1714-15). 3. Alcoa’s Rifle Shot Trial 21. On the same day that she received the 2124 sheet test results, Ms. Petit recommended a “rifle shot” test at Alcoa’s Davenport, Iowa plant (“Davenport”) to produce a new sheet material to meet Boeing’s request for a higher-toughness fuselage skin. (PX 267) In a memorandum to P.H. McConnaughey, manager at Davenport, Ms. Petit wrote: At a projected cost of 1.7 times 2024-T3 Speculair, Boeing’s preliminary assessment was that they would use such a material. [Peter Wright, Alcoa’s sales representative to Boeing,] has stated that Boeing claims the probability of use of such a material on the 767-X would be high if design allowables were generated by 11/90. I have recently reviewed the technical alternatives (letter of 89-05-15) and I believe that we have a high probability of technical success. If Boeing’s formal response supports their interest in near term implementation and Alcoa elects to attempt to meet their need, my preliminary recommendations are as follows: — In the second half of 1989, take a rifle shot approach in a trial at Davenport. I strongly believe that ATC and Davenport could jointly come up with a proposed modified alloy composition and process that would show a significant improvement in toughness compared to standard 2024-T3 Speculair. The proposed practice would be designed to achieve the best toughness improvement at the least cost to plant productivity. At best, our material would meet or exceed the goals and we could make additional lots in 1990 for design allow-ables. At worst, the material would be only 10-15% tougher and would not meet the Boeing window but the time spent and R & D costs would have been relatively small. (Id. at 047099). 22.The inventors characterized the rifle shot trial as such because it was a onetime “shot in the dark” attempt to develop an alloy which might be acceptable for Boeing’s short-term needs with respect to the 777 aircraft. (PX 277 at 051145; DX 55 at 044537). 23. In a July 7, 1989 memorandum to her colleagues, Ms. Petit stated that she and Robert Westerlund, Davenport’s chief metallurgist and a named inventor of the ’639 patent, discussed how to conduct a near term, best effort plant trial, in the event that was elected. There should be one extra high Cu/Mg/2124 ingot left from the preheat trial that could be used. We would preheat it with a standard 2024 practice, but reheat it with a higher temperature practice (i.e., temperatures like a 2124 practice but with a shorter soak time). This was our best compromise based on what we thought would improve toughness with minimal extra thermal practice time. (DX 82; D.I. 419 at 308-10) Alcoa’s 2124 practice used the “417 Process,” which contained a high-temperature (910°F) reheat for 30 hours. (D.I. 419 at 309, 520-23; D.I. 423 at 1511-12) In a telex to Ms. Petit on July 18, 1989, Mr. Westerlund stated that in discussing development with Boeing, we should treat all information [as] proprietary since there will be nothing patentable. This way, we may be able to keep it from the Japanese (for a while). (PX 277). 24. Mr. McConnaughey responded that Davenport was willing to support her proposal, using experimental ingots left from a 2124 plate preheat trial and “revised thermal preheat practices.” (PX 269; D.I. 418 at 230) The ingots were referred to as “CU 82” production ingots, and contained a high percentage (4.2%) of copper, outside Alcoa’s production composition range for then-existing 2124 and 2324 plate alloys. (D.I. 419 at 261-63, 305). 25: In a July 25, 1989 letter to Boeing, Mr. Wright wrote: In an effort to meet the requirement of design allowables by 1990 November for the 767-X airplane, Alcoa proposes to take a “rifle shot” approach in a plant trial at Davenport during 2H89. The goal will be to match the strength and corrosion resistance of 2024-T3 but improve the toughness by 20-30%. If we are successful, process optimization and an allowables program could be conducted during 1990. We request that Boeing’s contribution to this effort be to run a wide panel toughness test. If we are unsuccessful, 'we do not expect to do any short term tweaking as a part of the goal verification phase of development. Rather, we would defer to a longer, more methodical and comprehensive fuselage alloy development program (PX 358). 26. In an August 14, 1989 memorandum to her colleagues, Ms. Petit outlined the plans for the rifle shot as follows: The approach we plan to use to improve toughness and high K fatigue crack growth resistance is by reducing the amount of both soluble and insoluble constituent present in the final T3 product. This will be done by using higher purity metal, by keeping Cu and Mg content at moderate levels compared to conventional 2024, and by using improved thermal practices. The trial will consist of three ingots. One ingot will be a 2024 standard composition and two ingots will be CU82 with high side Cu (4.2 Cu, 1.4 Mg). The CU82 alloy is of the 2124 type. All ingots will be processed as alelad. The 2024 ingot will be processed by standard thermal and rolling practices as a control. For the CU82 ingots, one will be preheated 30 hours at 910° and one preheated 4 hours at 870° (standard 2024 practice). All lots will get the standard 2024 reheat. We estimated that if the trial is initiated now, samples would be available by 1989 November. In late 1989 and early 1990, these samples would be evaluated at ATC for fatigue, toughness, formability and corrosion resistance. Fatigue and toughness tests (48" wide) will be conducted by Boeing on the experimental log. By 1990 January, we should have an indication of whether the improvements are sufficient to be of further interest to Boeing. At that time, a decision will need to be made as to whether to continue the short term work in 1990 to define the composition and process bounds and to generate design allow-ables. A more detailed time schedule will be generated after production of the trial lots gets underway at Davenport. (DX 54 at 044512-13) Thus, Ms. Petit focused on the preheat portion of the experiment, considered to be the “critical parameter” for achieving the combination of properties sought by Boeing, despite the capacity constraints at Davenport. (D.I. 418 at 227-28, 232-33; D.I. 419 at 261-63, 348-49; DX 54 at 044512). 27. Soon thereafter, Mr. Westerlund sent a memorandum to Mr. Sam Shelby at Davenport identifying the parameters for the rifle shot test, characterizing the approach as using “concepts proven on 2124 and 2324 plate and applying] them to sheet.” (DX 55 at 044537) He also noted the following: If this trial is successful and Boeing decides they would like to include the new alloy on the 767-X, a significant effort remains. First, we would need to determine the sensitivity of properties to composition, preheat and reheat. Second, we would need to run design allowable material (-10 lots). The schedule will be roughly as follows: Trial I August — October, 1989 Evaluation of Trial I by Boeing November — December, 1989 Trial II— Optimize composition and practices January — March, 1990 Trial III— Design allowable material schedule April — June 1990 Based on this schedule, we will be tight for the 767-X, since Boeing would have extensive testing before their November, 1990, material selection deadline, although the 767-X program seems to be slipping. (Id. at 044537-38). 28. In August 1989, Alcoa metallurgists at Davenport conducted the rifle shot trial using two CU 82 ingots to produce two lots of test alloy, and a third ingot of the standard 2024 alloy as a control lot. (DX 54; D.I. 419 at 312-13) Pursuant to Ms. Petit and Mr. Westerlund’s specifications, one test lot was given a high-temperature preheat at 910°F for 30 hours, and the other was given a preheat at 870°F for 4 hours (the 2024 standard preheat). (DX 54; D.I. 419 at 319-22) The control lot was also given the 2024 standard preheat. (Id.) All three lots were to receive Alcoa’s standard 2024 reheat, which is a “heat to roll” practice occurring between the first and second hot rollings, in which the material is placed in the furnace just long enough so that it would be sufficiently hot for the second roll. (DX 54; D.I. 419 at 322-23, 351) Although the furnace is set to a specific temperature (910°F) for the 2024 reheat, the material typically does not reach that temperature. (D.I. 419 at 380-81). 29. In an internal memo dated September 8, 1989, Mr. Wright outlined the minutes of a meeting with Boeing representatives. (PX 274) Mr. Wright reported that Boeing will do 60" wide Kapp test for better validity with this increased toughness material. Samples for Boeing will be available by November. Boeing needs to define the amounts of test material that will be required. The timetable for this material relative to 767-X is very tight, but Bob Wester-lund thinks that the Process Verification Step can be abbreviated because of its similarity to 2024-T3 sheet. Boeing’s go/no go decision on allowables is due January 1990 and allowables material should ship by the end of May, 1990. (Id. at A028348). 30. In December 1989, Ms. Petit and Edward Colvin, an Alcoa metallurgist and a named inventor of the ’639 patent, received the initial results of the rifle shot trial from Mr. Westerlund. (PX 414) Although the overall properties were better than anticipated, the results indicated that the first lot (given the high-temperature preheat) had a lower toughness than the second lot (given the lower preheat). (D.I. 419 at 264-65, 349-52, 381) The inventors were surprised that the preheat did not have an effect on the characteristics of the material. (Id. at 265; PX 73 at 012611) As Ms. Petit stated at trial: On the one hand we had a really good product, but we had a product that we didn’t understand why it worked so good, so we didn’t know how to be able to introduce it. So at that point, we started to dig into the samples, do more analysis to better understand how they really were processed and to sort out why they were created with such good properties. (D.I. 419 at 266). 31. Mr. Westerlund, Mr. Colvin and named inventor Paul Magnusen analyzed the test results to determine why the first lot had a lower toughness. (Id.) Initially, they theorized that the test results were switched. After a microstructural analysis of the two lots, however, they learned that the first lot contained larger particles than the second lot. (Id. at 382-86) Upon review of the furnace records, they discovered that the second lot inadvertently was left in the furnace for over a day during the standard 2024 “heat to roll” step, so the metal actually reached the furnace temperature. (Id. at 386-87) Thus, the second lot received a long, high-temperature reheat step. 32. Mr. Colvin consulted Dr. Chakra-barti, the “resident expert” at Davenport who was performing 2124 reheat and preheat experiments at that time. (Id. at 388-89) Dr. Chakrabarti expressed doubts about using only a reheat step to improve damage tolerance properties. (Id.) Previously, Alcoa attempted to develop improved damage tolerance 2124 plate products using a high-temperature reheating step and no preheat, and was unsuccessful. (Id at 389-90). 33. The inventors decided to perform mierostructural experiments to test the properties of the second lot, which was initially called “C188.” (Id. at 390; D.I. 418 at 205; D.I. 424 at 1816). 4.Alcoa’s Sales of C188 Samples to Boeing 34. In December 1989, soon after receiving the rifle shot results, Alcoa sold samples of C188 to Boeing, who conducted experiments to test the alloy’s suitability as aircraft fuselage skin. (PX 362) Sales orders from Alcoa to Boeing document several additional “T & E” shipments of C188 samples through mid-1991. (PX 2325; PX 2327; PX 2338; PX 2344; PX 148; PX 398; DX 120) The sales orders contain Boeing’s name and shipping address, a description of the material, quantity weight per pound, price and shipping date, and are designated “XBMS” (experimental Boeing material specification). (Id.; D.I. 421 at 972-73) The samples were shipped to Boeing testing facilities in small quantities of four to ten pieces. (D.I. 421 at 969-70; D.I. 424 at 1646) Terms and conditions not expressed in the sales orders were governed by a standard “overriding agreement” negotiated by Alcoa and Boeing in the 1970s. (PX 2325; D.I. 421 at 929-30). 5. Boeing’s Wide-Panel Fracture Toughness Tests 35. In January 1990, Boeing conducted fracture toughness tests on 48- and 60-inch panels of C188. (D.I. 424 at 1631; D.I. 419 at 479) The test results reflected that C188 had a high level of fracture toughness and may be suitable for use on an airplane. (D.I. 419 at 480). 6. Peter Wright’s January 29, 1990 Letter to Boeing 36. In a letter dated January 29, 1990 entitled, “Design Allowables for Sheet and Plate Products,” Mr. Wright wrote the following to Boeing: We are on the threshold of commencing with a design allowables program for the referenced material in support of the 777 Program. This is to now advise Alcoa’s position regarding funding of that effort as follows: Alcoa will supply design allowable information per Table 1 attached for ten (10) lots of material as follows: — Boeing pays $100,000 for delivery of design allowable data, due upon delivery of design allowable data from Alcoa. — Design allowables will be provided free of charge if a three year production supply contract is signed. Three years begins on date of first production shipment. • — ■ A $50,000 cancellation charge will be in effect after go-ahead from Boeing for design allowables if Boeing subsequently cancels program. — T & E material to be shipped to Boeing will be sold at $12.00/lb. — Design allowable data provided by Alcoa is considered to be proprietary data for use by Boeing and Alcoa only. — Alcoa will offer a one year exclusive agreement if a three year production contract is signed. Alcoa will not provide design allowable data to any other customer until one year after the date of delivery of that data to Boeing. This aspect is void if the 777 program is not formally launched by four months after delivery of design allowables. Please advise how you wish to proceed. (PX 363). 7. Alcoa’s ATC Experiment 37.During March and April of 1990, Ms. Petit and Mr. Westerlund performed microstructural testing on C188 by evaluating the effects of different preheating and reheating thermal treatments on the alloy. (D.I. 419 at 390-91; DX 186 at 053019) They sought to develop a thermo-mechanical process for an upcoming trial in which composition was the variable factor, and to test the extent of cladding diffusion during a high-temperature reheat operation. (DX 186 at 053019-20) Ms. Petit and Mr. Westerlund discovered that they could reduce the size of particles within the alloy by using a high-temperature reheat practice and no preheat practice. (D.I. 419 at 392; DX 186 at 053023) They did not perform any damage tolerance testing on C188 at this time. (D.I. 419 at 391). 8. The Parent Applications 38. Based on the results of the rifle shot trial and ATC experiment, Ms. Petit, Mr. Colvin and Mr. Westerlund filed two patent applications in August 1990 (the “parent applications”) entitled, “Damage Tolerant Aluminum Alloy Clad Sheet for Aircraft Skin” (U.S. Patent Application No. 572,625) and “Damage Tolerant Aluminum Alloy Sheet for Aircraft Skin” (U.S. Patent Application No. 572,626). (DX 640; DX 641). 39. The parent applications describe the invention as relating to aluminum alloys suitable for use in aircraft applications and more particularly, [relating] to an improved aluminum alloy and processing therefor having improved resistance to fatigue crack growth and fracture toughness and suited to use as aircraft skin. (DX 640 at 245146; DX 641 at 245299) As an example of the invention, the parent applications describe the composition, processing and properties of the clad alloy manufactured during the rifle shot trial. (DX 640 at 245149-59; DX 641 at 245302-11). 40. Alcoa submitted several prior art references with the parent applications, including United States Patent Nos. 4,294,-625 (Boeing’s “Hyatt patent”), 3,726,725, 3,826,688, 4,294,625 and 4,336,075. (DX 640 at 245198-201; DX 641 at 245350-53). 41. In an Office Action dated August 22, 1991, the patent examiner rejected all of the process claims as anticipated by United States Patent No. 4,816,087 (the “Cho patent”), which teaches a high-temperature reheating step in making aluminum-lithium alloys. (DX 640 at 245207-14; DX 641 at 245359-65) The patent examiner rejected all of the claims (product and process) as obvious from the Cho patent in light of the Hyatt patent, which claims 2324 plate. (Id,.). 42. In a February 21, 1992 response, the applicants amended the claims and distinguished the Cho patent because it described an alloy composition and reheating temperature outside the amended ranges. (DX 640 at 245219-66; DX 641 at 245370^401) Regarding the obviousness rejection based on the Cho patent in light of the Hyatt patent, the applicants argued: [T]he rejection asserted in the Office Action has not adequately explained why it would be obvious for someone to combine Cho’s Al-Li alloy duplex structure processing with Hyatt’s, apparently conventional structure in an Al-Cu-Mg alloy. The alloys are different! The mere fact that both references seek to improve their respective different alloys by different thermal mechanical treatment alone does not suggest any combination. Any such combination of necessity requires picking this feature from one reference and combining it with that feature from the second reference with no suggestion within either reference to do so, a practice that is not appropriate in framing an obviousness rejection. What reason is shown in Cho, who says his product has toughness, to look to Hyatt’s different process for a different alloy? Would Hyatt’s process achieve Cho’s desired duplex structure? Similarly why would Hyatt look to Cho who is talking about a different alloy? Thus, what would one find if one took Hyatt’s disclosure and tried to use Cho’s processing (ignoring for a moment that the person involved wasn’t concerned with duplex structure)? Would that person heat to 980° as Cho recommends? It is again pointed out that the Applicants’ present method claims are limited to 945°F in the reheat step and that differs substantially from Cho’s teachings. Accordingly it is respectfully submitted that there is no proper basis in either Hyatt or Cho to combine the two references. It is further submitted that any such combination would point away from the Applicants’ present claims unless the combination is somehow arrived at using the Applicants’ specification as a road map, a procedure which has been condemned by the Court of Appeals for the Federal Circuit. (DX 640 at 245257-58; DX 641 at 245398-99) (emphasis omitted). 43.The patent examiner ultimately allowed the parent applications, but Alcoa later abandoned them after the inventors performed additional work on C188. (DX 640 at 245281-82, 245285; DX 641 at 245420-21, 245424; D.I. 423 at 1483-84). 9. Alcoa’s Plant Verification Trial 44. During the summer of 1990, Ms. Petit and Mr. Westerlund conducted the plant verification trial at Davenport, which addressed composition variation that would reasonably be expected during normal production, the effect of low temperature hold after the high temperature reheat soak, and solution heat treatment using- the vertical heat treater rather than the 86 inch continuous temper line. (DX 186 at 053025) They also performed tensile strength, fracture toughness and fatigue crack growth rate testing. (Id. at 053026-29). 45. Ms. Petit and Mr.' Westerlund’s evaluation of the plant verification trial continued into 1991. (Id. at 053019; D.I. 419 at 392-93) In a January 1993 report, Mr. Colvin detailed the following conclusions drawn from the plant verification trial and the ATC experiment: 1. ATC and plant experiments show the damage-tolerant properties of C188 can [be] achieved using a relatively short high-temperature soak at the slab reheat stage of fabrication. No long time, high temperature presoak is needed; in fact, practices of this type may result in the formation of large particles that detrimentally impact damage tolerance. 2. There is room for variation in Cu and Mg content to achieve required properties. The proposed composition box for C188 appears to be appropriate but the ultimate tensile strength of material at the low Cu and low Mg corner falls right at the specified minimum. An ingot with near maximum Cu and Mg gave very good damage-tolerant properties. 3. Slight increases in Mn content increase strength. There was a slight decrease in toughness associated with the strength increase but fatigue crack growth resistance was not adversely af- ' fected. ■ 4. The experiments showed that, after the reheat, time at temperatures significantly below the solvus must be minimized because soluble particles grow rapidly due to the large amount of excess solute and rapid diffusion at these temperatures. These particles reduce fracture toughness and resistance to fatigue crack propagation. 5.' Volume fraction of and S particles controls grain size in C188 when other factors are held constant. This probably results from a PSN mechanism. 6. Cu diffusion to the surface of alelad sheet during the reheat operation does not appear to be a problem. The lot that received a 24 hour reheat exhibited no more diffusion than the other lots. (DX 186 at 053031). 10. The “Partners Through the Mil-lenium” Proposal 46. In a memo dated June 26, 1990 to his colleagues, Mr. Wright noted that there is a “connection between new alloy pricing and the placement of several packages” of existing non-C188 alloys. (PX 376 at 003029) He described “an analysis we’ve done to explore the value to Boeing of reducing our new alloy premiums” and recommended that Alcoa reduce the price it set for C188- (Id.) In connection with a price reduction, Mr. Wright hoped to secure the extension of other contracts Alcoa had with Boeing. (Id. at 003032). 47. In September 1990, pursuant to Mr. Wright’s recommendations, Alcoa made a presentation -to Boeing entitled, “Partners Through the Millenium” (the “Millenium proposal”). (PX 378) The Mil-lenium proposal had four basic parts: (1) a request for a commitment by Boeing to maintain Alcoa’s share of business for a larger number of airplanes, together with a commitment by Alcoa to expand its production facilities; (2) an extension of the Mill Finish Sheet Contract, including upward price revisions for Alcoa’s products; (3) an extension of the Wing Plate Contract, also with upward price adjustments; and (4) a reduction in new alloy pricing, including a 1.25 multiplier for C188. (Id. at 003053-72). 48. Specifically, the Millenium proposal provided for the lower C188 multiplier during the four-year rollout plan for Boeing’s 767-X airplane (1994 to 1997). (Id. at 003072) Thus, it provided for the new lower price during commercial production of C188. (D.I. 421 at 1001) The Millenium proposal estimated that the quantity of C188 that Alcoa would sell to Boeing during that four-year period would be 6.86 million pounds, at a total cost of $51.45 million. (Id.) It stated that this would provide a cost savings to Boeing of $10.29 million compared to the previous multiplier. (Id.). 49. The Millenium proposal also stated that its four parts are “interdependent” and that the deal “depends on acceptance of all four parts.” (Id. at 003043) The final page of the proposal asked for either Boeing’s response by November 1, 1990 or that Boeing “[a]ssign P.O. Number now in this space_” (Id. at 003083). 11. Boeing’s Barrel Tests 50. During February 1991, Boeing conducted “barrel tests” on C188 samples purchased from Alcoa to measure fatigue crack growth rate and fracture toughness. (D.I. 419 at 480-81; D.I. 418 at 181-83; D.I. 422 at 1180; D.I. 424 at 1633) The tests involved shaping 60-inch-wide panels of the alloy into tube-like airplane fuselage and subjecting them to tests as if they were flying. (D.I. 419 at 480-81; PX 448 at 009184-85). 51. In March 1991, Boeing reported to Alcoa the barrel test results, which confirmed that C188 had very high fracture toughness and resistance to fatigue growth as compared to the incumbent 2024. (D.I. 419 at 481; DX 117) Mr. Dan Goodyear, an Alcoa application engineer that communicated with Boeing, summarized the results for the inventors: C188 dearly illustrated the superior toughness over 2024. Boeing earlier has said in using C188 that a 3-4% weight savings could be realized by reducing the frame gage. In summary, C188 will provide not only a premium over 2024 but also additional volume. The Japanese subcontractors who would buy from domestic aluminum producers now have to purchase Alcoa produced C188. Rudy Shad, 777 structures manager, stated that the C188 alloy was one of the success stories for the 777 aircraft. This unique success story is due to many people who worked and are working as a team to accomplish a common goal in less than a 2-yr. span. Some of these individuals are Wes Wells, Bob Wester-lund, Jocelyn Petit, Ed Colvin and Pete Wright. The C188 alloy program is not complete however. Davenport in its effort to meet the 777 window of opportunity has combined several steps which include commercial development and validation of C188. The material for alloy allowable generation is now being produced. The program will continue to require a diligent, watchful eye to assure continuing success. (DX 117 at 009020). 12. Alcoa’s Design Allowables Testing 52.The inventors began the design al-lowables phase of development in August 1991, and testing continued in 1992. (DX 186 at 053031) Design allowables testing is one of the final components of the development stage; it confirms the characteristics of the product and processes for manufacturers to use when designing the airplane. (D.I. 419 at 394; D.I. 424 at 1627-28; D.I. 421 at 974-75) During this phase, the inventors first developed a guaranteeable fatigue crack growth rate. (D.I. 419 at 492-94, 457-60, 534) In October 1991, Alcoa forwarded initial test results to Boeing. (D.I. 421 at 975-83; D.I. 424 at 1629; DX 705). 53. The design allowables phase was completed approximately nine months behind schedule. (D.I. 424 at 1624) Alcoa spent about $3 million on the entire C188 development effort, which Ms. Petit stated took three years to complete. (D.I. 419 at 342-43, 404). 13. Boeing’s Round Robin Tests 54. In November 1991, Boeing conducted “round robin” tests of fatigue crack growth rate values to be certain that C188 was superior to 2024 when tempered for use as a dome-shaped aft pressure bulkhead. (DX 150; D.I. 419 at 490-92) According to an Alcoa Quarterly Status Report, this “new fatigue information [was] incorporated into the revised patent application ... [which] ... caused filing to be delayed until eai-ly 1992.” (DX 159) The round robin tests were completed by the end of 1991. (D.I. 419 at 492-93). 14. The Continuation-in-Part Application 55. On March 6, 1992, the inventors filed a continuation-in-part (“CIP”) application with the PTO, which incorporated the plant verification trial, design allow-ables results and Boeing’s development efforts. (D.I. 419 at 404, 492-94; D.I. 159 at 024329) As compared to the parent applications, the CIP application contained nine additional figures, Kapp values (the parent applications expressed only Kc values), guaranteeable fatigue crack growth rate values, different testing procedures, different strength levels, and increased manganese in composition. (DX 188; D.I. 419 at 400-04, 494-97) The application also added Mr. Magnusen as an inventor, since he developed the guaranteeable fatigue crack growth rate properties in early 1992. (D.I. 419 at 475-77, 493-94; DX 159 at 024329). 56. Throughout the prosecution of the parent applications and the CIP application, the applicants did not disclose Alcoa’s 417 Process used with 2124 plate products, the composition of the 2124 alloy, Dr. Sta-ley’s publication on 2124 or the results on toughness tests performed on 2124 sheet shortly before the rifle shot trial. (D.I. 419 at 509, 528; D.I. 423 at 1482) The applicants also did not disclose a reheating step that they previously used to make 2024 fuselage during which “the furnace temperatures were set at 910F so the metal got considerably hotter than necessary for the rolling operation.” (PX 73 at 12599; D.I. 423 at 1316-17). 57. The CIP application was prosecuted by Carl Lippert, Alcoa’s attorney, who testified that he spoke to the inventors about the importance of disclosing all material art to the Patent Office, discussed and reviewed each submission with them, and tried to make sure that the application was correct. (D.I. 425 at 2073-98) Ms. Petit also testified that she discussed the application with the other inventors and “was not aware of anything that had been left out.” (D.I. 419 at 534). 58. In October 1992, the patent examiner issued a Notice of Allowability for claims 1 through 232 of the ’639 patent, and stated that [t]he prior art search has not produced any references which teach, disclose, or suggest applicants’ claims to a thermo-mechanical process for making Al-Cu-Mg alloy stock material. These high-copper, no-lithium A1 alloys utilize a reheat step before hot working and solution heat treating stages. (DX 642 at 245085). 15. Commercial Production 59. The commercial phase of the C188 project began in March/April 1992 when Alcoa began shipping material to Boeing’s Japanese subcontractors. (D.I. 424 at 1625, 1646; D.I. 421 at 979-80; DX 155; DX 161) Lot release testing, where Boeing directs that certain tests be put in the specification of the commercial material, began in May 1992. (D.I. 424 at 1652). 60. In January 1996, the Aluminum Association granted Alcoa’s request for the international alloy designation “2524” for C188. {Id. at 1817). 61. Boeing uses 2524 on its 777 aircraft. (D.I. 418 at 164) Alcoa also sells 2524 for use on Bombardier’s Global Express business jet, Airbus’ new A340 derivative, and the Embraer 170, a regional jet that carries 70 people. (D.I. 424 at 1653) By the end of 2000, Alcoa sold 17 million pounds of 2524 production material to Boeing, 1.2 million pounds to Bombardier, 400,000 pounds to Airbus, and 185,000 pounds to Embraer. {Id. at 1653-55). D. The ’639 Patent 62. On May 25, 1993, the ’639 patent, entitled, “Damage Tolerant Aluminum Alloy Products Useful for Aircraft Applications Such as Skin,” issued to Alcoa as assignee. (DX 188) Ms. Petit, Mr. Wester-lund, Mr. Colvin and Mr. Magnusen are listed as the named inventors. {Id. at 1). 63. The ’639 patent discloses an aluminum alloy composition with reduced impurities to minimize insoluble particles and controlled levels of alloying elements combined with a manufacturing process that includes an intermediate high-temperature reheating step to minimize undissolved soluble particles. {Id., cols. 3-4; col. 5, Ins. 44-49) This alloy has an “improved resistance to fatigue crack growth and fracture toughness and [is] suited to use as aircraft skin.” {Id., col. 1, Ins. 16-18) The damage tolerance and strength properties of the improved alloy are “guaranteeable.” Those guaranteeable properties “translate! ] to improved safety for passengers and crew and weight savings in the structure which allows for improved fuel economy, longer flight range, greater payload capacity or a combination of these.” {Id., Ins. 28-32). 64. The patent contains 232 claims, consisting of 142 product claims, 89 process claims and 1 product-by-process claim. {Id., cols. 22^42) The product claims (70-103, 125-232) claim various aluminum products within the same compositional ranges and having different combinations of strength, fracture toughness and/or resistance to fatigue crack growth, or a 5% improvement over “2024 alloy” in those two damage tolerance properties. The process claims (1-69, 104-123) claim steps to manufacture aluminum alloy products with varying but similar 2024-type compositions, including an intermediate reheating step between steps of hot rolling. The product-by-process claim (124) claims products produced by methods described in certain of the process claims. (Id.). 65. The asserted claims recite either an “aluminum alloy sheet product,” an “aluminum alloy sheet or plate product,” or an “aluminum alloy product.” Each product must be formable and corrosion resistant, and its damage tolerance properties must be guaranteeable. Some claims are limited to clad products, whereas others encompass both clad and bare products. Thirty-eight of the asserted claims recite a particular aircraft application, such as “aircraft skin.” (DX 188; D.I. 385) The asserted claims may be divided into five categories based on their properties: (1) claims reciting a “clad product” having certain fracture toughness “and” fatigue crack growth rate properties (80, 141, 216, 225); (2) claims reciting a “product” having certain fracture toughness “and” fatigue crack growth rate properties (75, 138, 149,159); (3) claims reciting a “clad product” having certain fracture toughness “or” fatigue crack growth rate properties (78, 86, 91, 95, 99, 103, 139, 142, 150, 153, 160-61, 164, 218, 221, 223, 226, 229); (4) claims reciting a “product” having certain fracture toughness “or” fatigue crack growth rate properties (72-73, 87, 89, 93, 97, 101, 136, 143-47, 151-52, 154-57, 162-63, 165-66, 214, 219-20, 222, 227-28, 230); and (5) claims reciting a “product” having a minimum fracture toughness Kapp of 80 ksi in or more (claims 192-95). 66. The tightest compositional limits recited by the asserted claims are: 4.0-4.5% Cu, 1.2-1.5% Mg, 0.4-0.7% Mn, maximum 0.15% Fe and maximum 0.12% Si. The minimum Kc value is 140 ksi in, the minimum Kapp value is 80 ksi in, and the minimum transverse yield strength is 40 ksi. The asserted claims also provide for a fatigue crack growth rate not greater than that shown at one or more levels in Figures 8 and 9 of the specification. (DX 188). E. Pechiney’s 2024A Alloy 67. In 1996, Airbus, a consortium of European aircraft manufacturers, asked Pechiney to develop an aluminum alloy to compete with Alcoa’s 2524 alloy for potential use as fuselage skin on the Airbus A340-500/600 aircraft. (D.I. 424 at 1817) The alloy that Pechiney developed in response to this request received a “2024A” designation from the Aluminum Association. (Id.). 68. In July 1997, Pechiney submitted to Airbus a Qualification Report concerning the two products it had produced and characterized, a thin-gauge clad 2024A product and a thicker, bare 2024A product. (PX 2387; D.I. 422 at 1094) The Qualification Report identifies the average chemical composition of 2024A as 4.061% Cu, 1.303% Mg, 0.412% Mn, 0.066% Fe and .038% Si. (PX 2387 at 176909) The internal operating limits of Pechiney’s “2024-15” composition, which is used to make 2024A, identify the target composition for 2024-15 as 4.05% Cu, 1.32% Mg, and 0.4% Mn with a maximum of .09% Fe and .08% Si. (DX 524 at 322075; D.I. 420 at 688-89). 69. The Qualification Report also indicates that 2024A is formable and resistant to corrosion. (PX 2387 at 176911, 176932; D.I. 420 at 634; D.I. 422 at 1137-38). 70. In early 1998, Airbus qualified the two products for use on its A340-500/600 aircraft. (PX 1773; D.I. 424 at 1817-18; D.I. 420 at 633) In June 1998, Airbus issued an individual product specification for 2024A products on the basis of the Qualification Report. (PX 2212; D.I. 422 at 1105-06). 71. On November 10, 1997, Boeing requested that several aluminum alloy companies, including Peehiney, propose prices for various aluminum alloy products. (D.I. 424 at 1818) On December 23, 1997, Pechi-ney sent a proposal to Boeing in which it indicated that between 1.5 and 2.5 million pounds of 2024A alloy would be available for purchase each year, with delivery to start in 1999. Peehiney also quoted shipping charges for delivery to the United States. (Id. at 1818-19; DX 405). 72. Robert Macé, Pechiney’s Director of Research, testified that 2024A “matches” the composition and properties covered by the asserted claims of the ’689 patent. (D.I. 420 at 620; D.I. 423 at 1300) Guy-Michel Raynaud, a Peehiney senior metallurgist, and Professor James C. Williams, Alcoa’s metallurgical engineering expert, also confirmed that the composition of 2024A falls within the asserted claims. (D.I. 422 at 1136-39, 1156-57; D.I. 420 at 69<D95). 73. Professor Richard W. Hertzberg, Alcoa’s materials testing expert, conducted tests on samples of 2024A to confirm that the alloy fell within the properties of the asserted claims. Professor Hertzberg performed fifteen tests for yield strength, twelve tests for fatigue crack growth rate and nine tests for fracture toughness. (D.I. 420 at 741, 748, 758) Based on the results of his testing and the Qualification Report, Professor Hertzberg concluded that the yield strength, fatigue crack growth rate and fracture toughness of 2024A were guaranteeable values that fell within the properties of most of the asserted claims. (Id. at 741-66). 74. On September 29, 1999, Peehiney made a slide presentation to Airbus, during which Peehiney admitted that 2024A is “in the scope of’ the ’639 patent, but that the validity of the patent is “questionable.” (DX 508 at 317407; D.I. 420 at 627-28). F. Prior Art 1. The Staley Reference 75. Dr. Staley authored a paper entitled, “Microstructure and Toughness of High-Strength Aluminum Alloys,” which was published by the American Society for Testing and Materials in 1976. (PX 585A) The paper sought “to illustrate the relationship between certain microstructural features and the toughness of wrought, high-strength aluminum alloys and to present examples of alloys developed to have high fracture toughness.” (Id. at 043973) Dr. Staley focused on 2XXX and 7XXX alloys. (PX585A). 76. The Staley reference teaches that an alloy’s base purity can be increased by removing iron and silicon from its composition, and strength can be increased by refining the size of soluble constituent particles by thermal mechanical treatments. (Id.; D.I. 423 at 1350) The paper states: Thermal mechanical treatments prior to solution heat treatment can also increase toughness by modifying the size, distribution, and volume fraction of the partially soluble constituent particles. For example, decreasing the size of the Al2 CuMg particles in high-purity 2124 sheet from a range of about 10 to 20 g,m to a range of about 5 to 10 p,m by thermal mechanical treatments increased tear resistance (Fig.3) and decreasing the volume fraction of the Al2 CuMg particles in 7050 plate increased notch toughness (Fig.4). (PX 585A at 043975-76) “Fig. 3” contains a graph depicting the composition of the 2124 sheet material (4.1% Cu, 1.5% Mg, 0.6% Mn, .04% Si, .04% Fe), and “estimated” Kc fracture toughness data points. (Id. at 043977; D.I. 423 at 1350-51). 77.Dr. Staley made the following conclusions: In summary, the effects of soluble and insoluble constituents, dispersoids, and hardening precipitates on toughness of high-strength aluminum alloys are fairly well established. The following guidelines are offered to increase toughness by modifying these particles: 1. Minimize the volume fraction of insoluble constituents by increasing base purity. 2. Refine the size of soluble constituent particles by thermal-mechanical treatments. 3. Decrease the number of disper-soids by adjustments in chemistry or by thermal-mechanical treatments. 4. Quench as rapidly as possible. 5. Do not overage 2XXX alloy products. 6. Minimize cold work of 7XXX alloys before aging. 7. Where low residual stress is required, quench as rapidly as possible and mechanically stress relieve rather than quench slowly. 8. Age a lower-solute alloy to peak strength rather than overage a higher-solute alloy. 9. Reduce magnesium in 7XXX alloys to lowest level consistent with desired strength. 10. Where rapid quenching cannot be attained, as in plate, adjust practices to promote the lowest degree of recrystallization. (PX 585A at 043993-95). 78. The Staley reference does not address Kapp values, fatigue crack growth rate, clad products or guaranteeability, nor does it show Kc testing. (Id. at 043977; D.I. 423 at 1441). 2.The Truckner Reference 79. In 1976, Alcoa published a report on behalf of the Air Force Materials Laboratory entitled, “Effects of Microstructure on Fatigue Crack Growth High-Strength Aluminum Alloys.” (PX 596) The report describes a study conducted by Dr. Staley and fellow Alcoa metallurgists Drs. W.G. Truckner, Robert J. Bucci and A.B. Thakker “to provide guidance for development of optimum metallurgical structures to retard fatigue crack growth in high-strength aluminum alloys, yet maintaining essential mechanical and physical properties.” (Id. at 1) The study examined 2XXX and 7XXX alloys. (Id.). 80. The authors concluded the following: 1. Strengthening precipitate had the largest effect on fatigue crack propagation rate at K levels above about 4 ksi in. 2. Amounts of the major alloying elements had the largest effect on fatigue crack propagation rate at K levels below about 3 ksi in. 3. Increasing dislocation density as modified by stretching 2XXX alloys after quenching had a lesser but statistically significant effect on increasing fatigue crack propagation rate. 4. Insoluble constituent particles had little effect and dispersoid particles had no effect on fatigue crack propagation rate at K levels much below about 15 ksi in for both 2XXX and 7XXX alloys. 5. Grain size from 5 to 65,000 grains per mm3 had no effect on crack growth rate in peak and overaged 7XXX alloys. (Id. at 9). 81. The Truckner reference contains no Kapp data or guaranteeable Kc data. (PX 596; D.I. 424 at 1696-98,1742). 3. The Bucci Reference 82. In 1979, Dr. Bucci authored an article entitled, “Selecting Aluminum Alloys to Resist Failure by Fracture Mechanisms” to “provide useful information and guidelines to engineers seeking to minimize fracture-type failure in aluminum structures through better application of materials knowledge and optimum alloy choice.” (PX 654 at 237955). 83. The article discusses how to achieve “eontrolled-toughness, high strength alloys” such as 2124-T3 and T8-type sheet and plate. (Id. at 237961; D.I. 423 at 1369-70) Specifically, Dr. Bucci states: Alloy 2124 was the first 2XXX alloy developed for high fracture toughness. The principal contribution to high toughness was increased purity (low iron and silicon) which minimizes formation of relatively large insoluble constituents (> 1 m) that crack first and initiate void growth.... Biggest gains in fracture toughness of 2XXX alloys by process control have been to the precipitation hardened T8 tempers which are widely used in applications requiring good resistance to exfoliation corrosion and SCC [stress corrosion cracking].... Controls on production processes for high toughness alloys 2124 and 7475 do not decrease fatigue and SCC resistance below that of their respective 2024 and 7075 counterparts at comparable tempers. In fact, the improved toughness has been shown to increase fatigue crack growth resistance at high crack growth rates. (PX 654 at 237962-64). Controls on alloy processing and heat treatment are key to assurance of high resistance to SCC without appreciable loss in other mechanical properties. Artificial aging 2XXX alloys to precipitation hardened T8 tempers provides relatively high resistance to exfoliation, SCC, and superior elevated temperature characteristics with modest strength increase over their naturally aged counterparts. In recent years, significant progress has been made in improving fracture toughness of 2XXX alloys in T8 tempers. Alloy 2124-T851 (also known as Alcoa 417 Process 2024-T851) has had over 13 yr of experience in military aircraft with no record of SCC problems. (Id. at 237970). With 2XXX alloys more corrosion resistant, precipitation hardened T8-type tempers provide a better combination of strength and fatigue resistance at high endurances than naturally aged T3 and T4 tempers. However, artificial aging of 2XXX alloys is accompanied by loss in toughness with resultant decrease in fatigue crack growth resistance at intermediate and high stress intensities. Interaction of a clad protective system with fatigue strength of alloys 2024-T3 and 7075-T6 in air and sea water environments are shown in Fig. 27. In sea water, benefits of the cladding are readily apparent. In air the cladding appreciably lowers fatigue resistance. (Id. at 237980-81). Other Alcoa works were able to establish statistically significant effects of alloy microstructure and composition on fatigue crack growth resistance of high strength aluminum alloys.... Good fatigue crack growth resistance of 2XXX alloys show high correlation with increasing toughness and/or decreasing strength. (Id. at 237981-82). 84. The Bucci reference does not contain any Kapp data, nor does it contain any guaranteeable Kc data. (PX 654; D.I. 424 at 1742). 4. The Neshpor Reference 85. In 1983, Soviet scientists G.S. Neshpor, V.V. Teleshov and A.A. Armya-gov conducted a study entitled, “Effect of Chemical Composition and Heat Treatment on the Characteristics of the Structural Strength of Plates of Alloy D16,” the results of which were published in English the following year. (PX 2289; D.I. 423 at 1376-77) Alloy D16 is the Russian equivalent of the 2024 alloy. (Id. at 1376). 86. The fracture toughness values in the Neshpor re