Full opinion text
TABLE OF CONTENTS I. BACKGROUND OF THIS LITIGATION A. Steelmaking prior to the tests at Linz, Austria, in 1949 B. The tests at Linz and their results C. The history of the U. S. patent application D. - The patent in suit (Suess, et al., No. 2,800,631) E. The licensing structure of the patent in suit F. The history of defendant’s operations G. The issues in this case II.- THE QUESTION OF VALIDITY A. Anticipation (1) The Schwarz patent (2) The Miles patent (3) The Potts patent (4) Conclusion B. Nonobviousness (1) The prior art and the invention by the patentees (2) The meaning of “the avoidance of deep penetration” (3) Nonobviousness of the invention (4) Nonobviousness of the claims (5) Conclusion C. Inventorship (1) The teachings of Dr. Durrer and Dr. Hellbruegge and the patentees (2) The disclosures of Dr. Durrer and Dr. Hellbruegge to the pat-entees (3) Comparison of the tests at Ger-lafingen, Switzerland, and Linz, Austria (4) Statements by Dr. Durrer and Dr. Hellbruegge inconsistent with inventorship (5) Conclusion D. Compliance of the specification with § 112 E. Compliance of the claims with § 112 (1) The claims do not measure the invention (2) The claims are not supported by the specification (a) The avoidance of “material agitation of the bath by the oxygen stream” (b) Chemical reactions “producing a circulatory movement in the molten metal” (c) Blowing “below the surface” (3) The claims cover prior art (4) Conclusion on claims under § 112 III. CONCLUSION OPINION FREEMAN, District Judge. This is an action for infringement of patent No. 2,800,631 involving a process of making steel by jetting high purity oxygen downwardly onto a bath of molten pig iron. The patent was issued July 23, 1957, to four Austrian steelmakers, Drs. Theodor Eduard Suess, Herbert Trenkler, Hubert Hauttmann and Rudolf Rinesch, as joint inventors, on the basis of experimentation with the use of pure oxygen in steelmaking dating back to June of 1949. At that time, all four men were employed by plaintiff Vereinigte Oesterreichische Eisen-und Stahlwerke Aktiengesellschaft (hereinafter called “VOEST”), a steel company owned by the Austrian Government having its main factory at Linz, Austria. VOEST is presently owner of the patent in suit and all rights pertaining thereto, by virtue of assignment from the patentees. Other plaintiffs in this litigation are Brassert Oxygen Technik AQ-, (hereinafter called “BOT”), a Swiss corporation which is the exclusive world-wide licensing firm for the patent in suit; and Henry J. Kaiser Company (hereinafter called “Kaiser”), a Nevada corporation which is the exclusive licensing agent in the United States for the patent. Defendant in this case is McLouth Steel Corporation (hereinafter called “McLouth”), a Michigan corporation having a place of business at Trenton, Michigan, where a steel plant is located, whose operations are alleged to infringe the patent in suit. The oxygen steelmaking process at issue in this litigation has demonstrated in recent years undoubted advantages over older methods of steelmaking, including reduction of capital and operating costs, increase of production rates, and improvement in quality of the steel produced. Therefore, perfection of the process has resulted in its large-scale adoption in the United States and throughout the world. Defendant Mc-Louth has admitted that the new oxygen steelmaking process is ‘“a revolutionary method of making high quality steel.” (PX96A; R. 1107, 1310.) Additionally, the process has been characterized by the President of Jones & Laughlin Steel Company as “the only major technological breakthrough at the ingot level in the steel industry since before the turn of the century.” (PX92-7; R. 1233-1234.) Basically, plaintiffs contend that the four patentees were joint inventors of this oxygen steelmaking process at Linz, Austria, in June of 1949, and that the process is the subject matter of the patent in suit, allegedly infringed by Mc-Louth. Defendant denies these contentions and also asserts a defense of patent misuse. I. BACKGROUND OF THIS LITIGATION A brief discussion of the background of this litigation may serve to clarify the issues and also to provide a general perspective for the more detailed analysis of each issue to follow. A. Steelmaking prior to the tests at Linz, Austria, in 1949 Steel is simply iron containing a very small percentage of other elements such as carbon, phosphorus, manganese, silicon and sulphur. Iron is found in nature in oxide forms, mixed with impurities. Thus the process of steel-making involves reduction of iron oxide to pure iron and the removal of impurities to acceptable levels for the quality of steel desired. The blast furnace, an invention probably of Chinese origin and introduced in Europe in the sixteenth century, performs the function of reducing iron ore to relatively pure iron, but fails to separate other elements from the iron sufficiently to produce steel. In fact, the iron produced by the blast furnace, known as pig iron, acquires roughly four per cent carbon as a result of the blast furnace operation as residue from coke used in the operation to reduce iron oxide. (R. 210.) Therefore, further refining of the molten pig iron produced by the blast furnace is required to make steel. The purpose of such refining is to lower the carbon, silicon, phosphorus, manganese and sulphur content of the pig iron to desirable levels, preferably without adding any significant amounts of oxygen or nitrogen to the final steel as a result of the refining process. For example, excessive amounts of carbon, phosphorus and nitrogen cause the steel to be too brittle for many purposes. Too much sulphur has the same effect and also tends to cause surface defects in the steel produced. (R. 233-235.) On the other hand, steel with a too low manganese content will not roll or forge properly. (R. 227-228.) In the process of refining pig iron, the elements of carbon, silicon, manganese and phosphorus combine with oxygen to form oxides which go into a slag layer on top of the metal bath or into the air in the form of carbon monoxide and carbon dioxide. Essentially, the problem of steelmaking is to control the refining process so as to remove sufficient amounts of all the impurities, although the various reactions do not necessarily occur at the same time. The refining of pig iron into steel may be accomplished by any of several processes. The oldest of these, the Bessemer process, was developed in the 1850’s and involves blowing air into a molten bath of pig iron from below through tuyeres in the bottom of a converter. The original Bessemer process, which used a so-called acid refractory lined with material containing silica, an acidic oxide, has proved unsatisfactory in several respects. In the first place, phosphorus is not removed, because the basic slag required for phosphorus removal cannot be used with an acid refractory. Thus the acid Bessemer process can only be used to refine pig iron which already contains a sufficiently low phosphorus content. The relative rarity of such pig iron places a serious restriction on the usefulness of the acid Bessemer process. Further, sulphur is not removed in the acid Bessemer process for the same reason. Additionally, the blowing of air into the bath causes an objectionable amount of nitrogen from the air to remain in the steel. Attempts to solve the nitrogen problem in the 1940’s by blowing pure oxygen instead of air through the bottom were unsuccessful because the greater heat of chemical reactions caused by pure oxygen immediately resulted in severe refractory damage. The Thomas process, also known as the basic Bessemer process, was originated in 1879. This process requires the use of a basic lining, which permits the use of a basic slag capable of removing phosphorus and sulphur from the pig iron. However, the process makes steel which is unsatisfactory for many purposes because of an excessive nitrogen content in the steel produced. In the Thomas process, a so-called afterblow is required to remove phosphorus from the metal bath, since almost no phosphorus is removed during the main blow when the removal of carbon, silicon and manganese takes place. Phosphorus removal requires iron oxide in the slag, but in the Thomas process, insufficient iron oxide forms in the slag to remove phosphorus until the time of the afterblow. The principal method for refining pig iron into steel since the 1880’s has been the open hearth process, which involves heating large quantities of pig iron in a furnace by means of fuel oil blown onto the surface of the bath. The open hearth process successfully removes objectionable amounts of carbon, silicon, phosphorus, manganese and sulphur from the pig iron without at the same time injecting excessive nitrogen or oxygen into the steel produced. In 1953, approximately 89% of the steel produced in the United States came from open hearth furnaces. (R. 5890.) Although the steel produced by the open hearth process is of excellent quality, the process has the disadvantages of high capital and operating costs as well as" a relatively slow rate of production, an average heat requiring eight to ten hours (R. 276-276-A) as compared to a blow of roughly eighteen minutes in a Thomas operation. (R. 246.) Another process which has been used in the last sixty years for steelmaking is the electric furnace, which makes use of an arc between electrodes to heat the metal charge. The electric furnace process is generally not used for low carbon steel because of the high cost of this type of operation. The process has been used primarily for making specialty steels. It should be noted that various attempts were made from the 1880’s on to make steel successfully by blowing air from above onto the surface of a bath of molten pig iron, usually from tuyeres located in the converter wall above the surface of the bath. The work of Robert, Deemer and Brassert was significant in this regard (DX 61), but there is no evidence that such attempts led to any practical results in commercial steelmak-ing. In 1928, the invention of the Linde-Fraenkl process of producing pure oxygen cheaply in large tonnage quantities created the possibility of. the use of pure oxygen in the commercial refining of pig iron into steel. (R. 5068.) Starting in the 1930’s, at least limited experimentation was carried on in Europe by men including Herman Brassert, Dr. Carl Schwarz and Dr. Robert Durrer using oxygen in the refinement of steel. (R. 5074, 5084, 5085.) Such experimentation led to the application by Schwarz in 1939 for a German patent on a new process of blowing oxygen from above a bath of molten pig iron deeply into the bath “in the manner of a solid body.” (DX 61, Schwarz.) The patent was issued in 1943, but there is no evidence that Schwarz’ work led to any practical results in commercial operations. (R. 5085). In the 1940’s, especially after World War II, pure oxygen apparently became more readily available at low cost, and experimentation with oxygen in steelmaking increased in intensity. In 1946, a Belgian patent was issued to John Miles on a process involving blowing oyxgen from above into a bath of molten pig iron, preferably at an angle between 35° to 70°, so as to agitate the bath by the oxygen jet. (DX 61, Miles.) Again, there is no evidence that Miles’ work led to practical results in commercial operations (R. 5085), and in fact there is admittedly no evidence that steel with satisfactory phosphorus and sulphur content was made commercially by anyone in the 1940’s using a pure oxygen blowing process (R. 13,484-13,486), despite extensive experimentation by a number of men in several countries of Europe. Such experimentation included a series of tests conducted in Gerla-fingen, Switzerland, by Dr. Durrer-and Dr. Heinrich Hellbruegge in 1948 and the spring of 1949,- blowing pure oxygen downward into a bath of molten pig iron, using an' afterblow to remove phosphorus after carbon had been removed in the main blow. (DX 61; R. 4915.) These tests produced steel satisfactory for some purposes, despite apparent refractory damage and an objectionably high phosphorus content in the steel produced. (R. 11,929.) B. The tests at Linz and their results Drs. Suess and Trenkler, employees of plaintiff VOEST in Linz, Austria, learned of the work at Gerlafingen, and Dr. Trenkler visited Gerlafingen in May of 1949 to find out more about the tests and their degree of success. VOEST at this time was contemplating reconstruction and expansion of steelmaking facilities damaged in World War II (R. 2222), and was therefore naturally interested in using successful new methods of steel-making which would not require the high capital expenditures necessary for contraction of open hearth operations. In June of 1949, Drs. Suess, Trenkler, Hauttmann and Rinesch began their own tests at Linz using oxygen in a converter, initially following the instructions of Drs. Durrer and Hellbruegge to blow vertically from above deeply into the bath. (R. 2659-2660; DX 11B.) The results in terms of phosphorus removal and refractory damage were initially worse than those achieved at Gerlafingen. However, in further June tests in which the impact pressure of the oxygen jet against the bath surface was reduced by a change in nozzle and an increase in lance height, the results showed satisfactory phosphorus removal without even the need for an afterblow, and also an absence of refractory damage. (See infra II. C(3).) Thus a satisfactory oxygen blowing process was achieved for the first time in June, 1949. Tests continued well into 1950 on a larger scale as preparation for commercial operations, which were put into production at Linz in November of 1952. (PX 342, p. 12.) The VOEST plant at Linz was the first commercial operation using the vertical oxygen blowing process perfected in the earlier Linz tests. According to plaintiffs, more than 75% of all new steelmaking facilities constructed since 1954, or now in the planning stage, use the Linz process. (PX 342, p. 13.) Sixteen steel companies in the United States alone have either begun or planned facilities using the oxygen blowing process. (PX 104, p. 3.) In other parts of the world, sixty-four companies in twenty-three countries have installed the new oxygen steelmaking process or are now doing so. (PX 104.) C. The history of the U. S. patent application Dr. Suess, one of the VOEST employees responsible for the successful tests at Linz, filed patent applications with the Austrian Patent Office as early as January 31, 1950. (PX 2C.) He subsequently filed patent applications in his own name in other countries throughout the world. The original U. S. patent application was filed by Dr. Suess alone on January 16, 1951. (PX 2B.) The original U. S. application contained 12 claims, directed to a ratio of bath depth to surface area favorable to circulation as the gist of the invention. These claims were four times rejected by the Patent Office, and the original application was finally abandoned in June of 1956 by failure to file a brief with the Board of Appeals in opposition to the Patent Office rejections. Meanwhile, litigation between Dr. Suess and VOEST in Austria and Germany over the ownership of patent rights for the Linz process had been settled in October, 1955, with the result that VOEST became the owner of Dr. Suess’ rights in the United States application and also his other applications and patents throughout the world. (DX 93B, p. 68; PX 3C.) On November 16, 1955, a continuation-in-part application was filed by Dr. Suess in the United States Patent Office, containing a more detailed specification than the original application and also 15 new claims, the first four of which were directed to the avoidance'of deep' penetration of the bath by the oxygen stream as the gist of the invention. (PX 2A.) All the new claims were rejected by the Patent Office on June 14, 1956, as unpat-entable over prior art. On December 7, 1956, in response to the Patent Office rejection of claims, the first ten claims were cancelled and the remaining five claims were resubmitted along with a new claim. On June 11, 1957, the pending six claims were can-celled by the applicant without waiting for Patent Office action, and two new claims were submitted. In May of 1956, after the death of Dr. Suess on March 4, 1956, Drs. Hauttmann, Trenkler and Rinesch had requested to be and were joined as inventors in the United States applications. Two of these men, Drs. Rinesch and Hauttmann, filed affidavits with the Patent Office on June li, 1957, in support of the two new claims filed at the same time. No amendments to the specification were made at this time. The letter accompanying the new claims and the affidavits stated: “The new claims are presented in view of information recently made available and which indicates that the instant application discloses a fundamentally different approach to the refining of pig iron or crude iron by means of substantially pure oxygen than was suggested heretofore.” (PX 2A, p. 74.) A single amendment was made on June 18, 1957, to one of the new claims following a conference with the Patent Office Examiner. The patent application was allowed on June 27, 1957, roughly six and one half years after the original application had been filed, and only 16 days after the two new claims were filed. The patent was issued July 23, 1957. D. The patent in suit (Suess et al., No. 2,800,631) (PX1) The general subject matter of the patent in suit is described at col. 3, lines 16 to 27 of the specification: “The process of the invention generally comprises refining the molten metal in a converter type or other suitable vessel with a high purity oxygen jet impinging vertically or approximately vertically on the melt surface substantially at the central portion thereof by means of a blast nozzle or other suitable jet producing means under controlled conditions, hereinafter defined, to supply to the molten metal the required amount of oxygen for completion of refining within a predetermined time, and to produce auto-genous heat sufficient to insure completion of the refining and adequate temperature in the refined charge for subsequent handling.” The specification then discusses general features of the process and gives a range of operating conditions at col. 3, line 37, to col. 4, line 5: “According to the process of the invention, the high purity oxygen jet is blown vertically, or approximately vertically upon the central portion of the surface of a bath of the molten metal, the jet having a diameter and static pressure at the point of origin, that is, at the blast nozzle or other jet producing means, and the point of origin (blast nozzle) being spaced from the bath surface, such that direct contact of the oxygen jet and the molten metal is established and maintained throughout the refining period without deep penetration of the molten metal bath by the jet. In so operating, the area of jet impingement is controlled to produce a relatively confined zone of direct oxygen to molten metal contact with respect to the total surface area of the bath. It has been determined in application of the present invention to the refining of predominantly molten pig iron charges by means of high purity oxygen, that the jet blown onto the surface of the molten iron, as above described, under a relatively low static pressure at the point of origin, for example, at the overhung blast nozzle, of from 5 to 25 atmospheres (about 75 to 375 pounds per square inch), preferably at about 8 to 12 atmospheres (about 115-175 pounds per square inch), with the jet diameter at the point of origin or blast nozzle being about 1 millimeter (V25 inch) per ton óf charge, and with the point of origin or blast nozzle spaced from the bath surface from at least 150 millimeters (about 6 inches) up to about 2000 millimeters (about 80 inches), produces a sufficiently high reaction velocity of the oxygen with the bath constituents to insure the development of autogenous heat at a rate sufficient to provide the heat required for completion of the refining in a minimum of time, consistent with controlled temperature and control and development of other necessary and required process conditions, such as fluid slag, avoidance of over-oxidation (undue loss of iron to the slag), and avoidance of slopping. The process conducted under these conditions avoids a deep penetration of the oxygen gas into the molten bath which seriously impairs refractory life at the bottom of the refining vessel. In addition, the impingement area of the high purity oxygen on the central portion of the bath isolates the refractory walls of the refining vessel from the extremely high temperatures which are developed by the direct reaction of the oxygen and the molten metal.” The specification discusses the movement of the bath during the major part of the blow at col. 4, line 26, to col. 5, line 5: “Although it is not intended to limit the present invention to any specific theory of action or mechanism, it is believed that application of the oxygen jet substantially vertically or approximately vertically upon the central portion of the bath surface brings about a flow in the molten metal from the ' center of the surface of the bath downwardly and then along the bottom of the refining vessel, and upwardly at the sides of the vessel to the surface of the bath, so that portions of the unrefined metal are continuously presented to a localized center of direct oxygen reaction with the bath metal, while reacted or oxidized portions of the bath move away from this reaction center. This apparent circulation of the molten material is facilitated by shaping of the bottom of the device in its refractory lining in a uniformly curved design, preferably hemispherical or similar shape, so as to offer the minimum of resistance to the circulation. “Due to the very high affinity of oxygen for iron, initial contact of the high purity oxygen jet with the molten metal bath causes a rapid combination of oxygen and iron to form FeO in the confined central reaction zone. This is demonstrated by ignition of the oxygen and the propagation of a visible flame within the first minute of blowing. This reaction, together with oxidation of impurity elements, such as silicon and manganese, develops extremely high temperatures in the zone of direct oxygen contact with the molten metal which approach the boiling point of iron, as demonstrated by the evolution of a fume containing iron oxide and manganese oxide. A portion of the iron oxide goes to the slag with the other oxidized elements and a portion diffuses into the bath under the influence of the bath circulation, so that within the first three minutes of the blowing vigorous carbon combustion is initiated due to the high temperatures developed by these reactions. The ensuing reaction of carbon with the FeO and directly with the oxygen gas in the confined direct oxidation zone causes rapid formation of carbon monoxide and the formation of this CO causes a strong boil or agitation of the bath, which augments the bath circulation to continuously present unrefined metal to the oxygen gas reaction zone and to create a slag-metal emulsion. The oxygen jet thus contacts the emulsion of bath and slag components which presents a larger reaction surface and causes the refining reactions to progress rapidly although the oxygen jet does not penetrate deeply into the molten metal bath and is confined to an impingement area at the central portion of the bath surface. This vigorous boiling action is opposed by the pressure of the oxygen jet only in the area of impingement, and outside of this area it represents primarily endothermic reduction of FeO by carbon to form the evolved carbon monoxide, which reaction thus effectively encompasses the zone of direct oxygen reaction at which the highest temperatures prevail affording a maximum measure of protection to the refractory lining of the refining vessel.” The specification also teaches that an early fluid slag is obtained which promotes satisfactory removal of phosphorus and other impurities. Specifically, the patent states at col. 5, lines 60 to 72; col. 6, lines 5 to 25: “As above mentioned, it is a characteristic of the process of the invention that in the confined zone of direct oxygen reaction at the surface of the molten metal bath, the oxidation products of the impurities in the pig iron, such as silicon and manganese, as well as the oxidized iron form an early fluid slag which is always very rich in oxides, that is, highly oxidizing. With the formation of the slag-metal emulsion, the iron oxide reacts with the carbon present in the bath, primarily outside of the direct oxygen-metal reaction zone, and since such slag-metal reactions are endothermic, the molten bath is maintained cooler in the vicinity of the walls of the refining vessel or converter. * * * “This formation of an early highly oxidizing fluid slag is of particular value in basic refining when the process is applied to pig iron of analyses used in ordinary open-hearth practice, which would not be amenable to refining by either the acid Bessemer process due to the phosphorus content, or the basic Thomas process due to the lack of sufficient phosphorus. With the rapid heating of the slag cover and metal bath, the proper amounts of lime or lime supplying substance, such as limestone, may be added at the beginning of the blow and during the blow to insure formation and maintenance of a slag of sufficient basicity. Thus, the early fluid, basic and highly oxidizing slag formed provides an accelerated rate of phosphorus and sul-phur removal from the bath, leaving the finished steel very low in both elements. With normal open-hearth pig irons having phosphorus contents ranging from about 0.1-0.35%, and even higher, e. g., 0.85% P, and with correct lime additions, final phosphorus contents not higher than about 0.025% and as low as 0.010% are obtained by the time the carbon end point is reached with only a single slagging operation.” With reference to conditions prevailing near the end of the blow, the specification states at col. 6, lines 62 to 74: “The vigorous boil, above mentioned, continues up to the carbon end point, and together with the induced circulation of the bath metal toward and away from the central zone of direct oxygen reaction, effectively counteracts any tendency to overoxidation of the bath. When the flame dies and carbon combustion is completed, the bath becomes relatively quiet and intimate contact between slag and metal bath ceases. The turbulence of the bath and slag due to the oxygen stream impinging from directly above is insufficient to cause continuance of oxygen-metal reactions. As a result, steels blown by the process of the invention do not suffer from the deteriorating effects of high oxygen (FeO) contents.” The specification then gives specific details of an exemplary commercial practice of the process, admittedly (Defendant’s main brief, pp. 156, 170) based on experience at the VOEST plant in Linz, Austria, at col. 8, line 72, to col. 9, line 24: “In actual practice, based on experience in operation of 30 ton converters, oxygen feed rates may be maintained such that depending upon pig iron analysis, amount of scrap addition and desired finished steel analysis, the refining to usual carbon end points on the order of 0.05% C is completed in from about 15 to about 30 minutes, preferably 18 to 22 minutes. Flow rates of from about 4000 to 8000 cubic meters of oxygen per hour are representative of the oxygen input under thése conditions. “In such exemplary commercial practice with 30 ton converters charged to 35 to 36 tons, oxygen pressures at the blast nozzle of about 8 to 10 atmospheres and oxygen jet or blast nozzle diameters of from 27.5 to 35 millimeters (1.1 to 1.4 inches) with nozzle spacings varying from 25 to 50 inches (about 650 to 1250 millimeters have been used, the preferred spacing being from 30 to 40 inches (about 750 to 1000 millimeters). In general, it may be stated that as the oxygen pressure and nozzle diameter are increased, the nozzle spacing is also increased, for example, as the capacity of the refining vessel and total charge is increased. Under these conditions, deep penetration of the molten metal bath is avoided, while the necessary displacement of the slag cover to maintain direct oxygen to molten metal contact is insured. However, in the unusual circumstances of an abnormally stiff slag cover, the blow may be initiated using mechanical means for penetrating the slag cover to establish oxygen to metal contact.” The specification continues with typical illustrations in col. 9 of the chemical composition of steels produced from various types of pig iron according to the process of the specification; also in col. 10 with “a detailed description of a typical operation of the process.” The patent concludes with two claims reading as follows at col. 12, lines 10 to 33: “1. Method of refining molten impure iron in the presence of a slag in a vessel having a refractory lining by blowing with oxygen, which comprises discharging a stream of oxygen vertically downwardly through the slag layer onto and below the surface of the bath at the central portion thereof, to an extent to avoid material agitation of the bath by the oxygen stream, the contact of the oxygen with the bath resulting in reaction of the oxygen with a portion of the iron and with the oxidizable impurities of the bath in a localized reaction zone spaced a substantial distance from the refractory lining, the reactions in said zone resulting in refining of the iron and gas evolution and in the production of high temperature in the reaction zone away from the refractory lining, said reaction producing a circulatory movement in the molten metal, which circulatory movement brings those portions of the molten metal bath which are remote from the reaction zone into the reaction zone whereby those portions are subjected to said reaction with minimum injury to the refractory lining. “2. The gaseous oxygen process set forth in claim 1 in which the oxygen is blown into said vessel under pressure in a range between five and about twenty-five atmospheres above normal atmospheric pressure.” E. The licensing structure of the patent in suit In the early 1950’s, VOEST and several other European steel companies were concerned with the use of oxygen in steelmaking and held or sought patents on various inventions relating thereto. According to plaintiffs: “In order to resolve any conflicting claims which might have arisen as between VOEST and OAM, on the one hand, and the Brassert group, on the other hand, and in order to achieve the best and widest possible utilization of the various inventions relating to this new process throughout the world, the exploiting firm of BOT was formed.” (Plaintiffs’ main brief, p. 446.) On May 9,1952, VOEST and Oesterreieh-isch-Alpine Montagesellschaft (OAM) another Austrian steel company, entered into an agreement with BOT under which BOT was to have the exclusive right to exploit commercially the various inventions owned by the parties. (PX 4B.) Thus BOT obtained the right to exploit any patents VOEST. might acquire on the oxygen blowing process developed at Linz in 1949. BOT also acquired exclusive licensing rights in the Schwarz, Miles and Mannesmann patents in 1952. (PX 9B, 91 and 9E.) In effect, BOT became the exclusive licensing agent all over the world for a so-called pool of patent rights relating to the use of oxygen in steelmaking. On May 20, 1954, BOT and Kaiser entered into an agreement by which Kaiser became, in effect, the exclusive licensing agent for BOT in the United States, with the right to sue for patent infringement. (PX 5B.) Pursuant to this agreement, Kaiser has since given package license agreements to a number of steelmakers in this country. (PX 7B, 7C, 7D, 7E, 7K, 7M, 92-8.) Thus, when the patent' in suit was granted to VOEST in 1957, BOT and therefore Kaiser acquired the exclusive right to grant licenses under the patent in the United States, and to sue for infringement as in the instant case. F. The history of defendant’s operations In 1953, defendant McLouth desired to expand its steelmaking facilities and was, therefore, receptive to new methods which might produce steel of the desired high quality at lower cost than open hearth operations. McLouth learned of the new process being used at Linz, and therefore sent one of its officers, Mr. Lindberg, to Linz to observe the new process. McLouth also got further information about the Linz process from Kaiser, and on November 12, 1954, Mc-Louth and Kaiser entered into an agreement for Kaiser to give know-how, engineering knowledge and consultation services concerning the process to Me-Louth at a cost of $100,000. (PX 37K.) As a result, McLouth, without further experimentation of its own (R. 3507), constructed its OP-1 steelmaking shop consisting of three vessels or converters, the design of the operation being copied from the one at Linz. (R. 1283-1288, 3513-3516, 3525-3529, 3540-3541, 3573-3580, 3447-3451, 3490-3491, 3507-3508.) The OP-1 shop commenced commercial operations on December 19, 1954. In 1955, Dr. Rinesch, later a patentee of the patent in suit, visited the, McLouth operation at Trenton and gave constructive advice as to the workings of the operation. McLouth’s . decision “to integrate the Austrian process into its steelmaking operations” (PX 98D) resulted in substantial savings and improvements in production. In the OP-1 operation, capital costs of construction were estimated to be $10.00 per annual ton (R. 3458-3463), as compared with capital costs of $30.00 to $45.00 per annual ton for an open hearth shop in 1953 (R. 3459), and operating cost savings on the OP-1 shop were about $3.00 per ton. (PX 98D.) Further, Mr. Lyle J. Johnson, McLouth’s Vice-President of Engineering, testified that in 1953 the average production per hour in the OP-1 shop was 60 to 65 tons (R. 3468-3469), as compared with an average production of 21 to 25 tons per hour in an open hearth operation. (R. 3467-3468.) McLouth admits that, by the oxygen process, steel is made “in one-fourth the usual open hearth time.” (PX 98C.) McLouth interpreted the know-how agreement with Kaiser as a license to use the Linz process. However, Kaiser interpreted the agreement as giving Mc-Louth merely an option to take a license, and therefore eventually brought suit against McLouth for patent infringement on July 19, 1957, four days before the patent in suit was issued. On August 29, 1958, the complaint was amended to allege infringement of the patent in suit. McLouth continued to manufacture steel successfully in the OP-1 shop, and also expanded its operations with the construction of two vessels in another shop, known as OP-2, in 1958, and adding a third vessel to the OP-2 shop in 1960. The issue whether the know-how agreement of November, 1954, constituted a license agreement or merely an option to take a license was raised by cross motions for summary judgment, resolved by this Court in favor of Kaiser. 175 F.Supp. 743 (D.C.Mich.1959.) The Court’s holding was affirmed on an interlocutory appeal by an opinion of the Sixth Circuit Court of Appeals, dated March 28, 1960 (277 F.2d 458). The appellate court’s affirmance that the November, 1954, agreement did not give McLouth a license under the patent in suit set the stage for a trial on infringement of the Suess, et al. patent. Naturally, the interlocutory appeal necessitated some delay in bringing the suit for infringement to trial. G. The issues in this case McLouth has raised the standard defenses in a patent case of invalidity and noninfringement. More specifically, with regard to validity, McLouth has contended that the patent in suit is anticipated by prior art, in particular, the Schwarz and Miles patents; also that the process of the patent was obvious to a person skilled in the art at the time the invention was made; and, further, that plaintiffs did not themselves invent the process, having learned the process from Dr. Durrer and Dr. Hellbruegge of Gerlafingen, Switzerland. McLouth further contends that neither the specification nor claims of the patent comply with the requirements of 35 U.S.C. § 112 relating to definiteness. Defendant denies infringing the process as stated in the claims of the patent, although it does not contest the allegation that it is using the process disclosed by the specification. The basis for this position is Mc-Louth’s contention that the claims are not supported by the specification. Additionally, McLouth asserts that the patent is unenforceable because of an alleged antitrust violation and consequent patent misuse arising out of the licensing structure and practices of the so-called patent pool controlled by plaintiff BOT. In essence, defendant contends that the accumulation of a large number of patents in the hands of plaintiffs, Kaiser in the United States, and BOT in Europe and the rest of the world, partly as the result of grant-back provisions in licenses by plaintiffs, constitutes an antitrust violation. II. THE QUESTION OF VALIDITY With respect to validity, it must first be noted that according to 35 U.S.C. § 282: “A patent shall be presumed valid. * * * The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting it.” Thus the burden of proof is upon McLouth in this case to establish the invalidity of the Suess patent in suit, No. 2,800,631. In this connection, the Sixth Circuit Court of Appeals has commented on the weight of such a burden as follows: “ * * * one otherwise an infringer who assails the validity of a patent fair upon its face bears a heavy burden of persuasion, and fails unless his evidence has more than a dubious preponderance.” Williams Mfg. Co. v. United Shoe Mach. Corp., 121 F.2d 273, 277 (CA 6, 1941), quoting from Radio Corporation of America v. Radio Engineering Laboratories, Inc., 293 U.S. 1, 8, 55 S.Ct. 928, 79 L.Ed. 163 (1934). A. Anticipation 35 U.S.C. § 102 provides in pertinent part: “A person shall be entitled to a patent unless— (a) the invention was * * * patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or (b) the invention was patented or described in a printed publication in this or a foreign country * * * more than one year prior to the date of the application for patent in the United States, * * *.” According to the pretrial order in this case, McLouth relies on three foreign patents as anticipation of the patent in suit or as showing the state of the art: the Schwarz German patent No. 735,196 dated July 3, 1943; the Miles Belgian patent No. 468,316 dated March 1, 1947; and the Potts British patent No. 623,881 dated May 24, 1949. However, in the opening statement and also in the final briefs and arguments, Mc-Louth relied only on the Schwarz and Miles patents as pertinent prior art, ignoring the Potts patent almost entirely. (R. 143-144; defendant’s main brief, p. 212; reply brief, p. 27.) For example, when asked by the court on final arguments : “Do you concede that the Schwarz and Miles patent would be the most pertinent prior art?”, counsel for defendant replied: “Certainly the most pertinent patents, yes, your Honor, very much. They are the ones on which we primarily rely. There is a lot of other prior art, to some of which peripheral attention was given and which is interesting from one point or another; but these are the two patents upon which so far as the patented art is concerned Mc-Louth relies.” (R. 13,707.) Therefore, the first issue before the court on validity is primarily whether the patent in suit was anticipated by the Schwarz or the Miles patent. With regard to what must be proven to establish anticipation by prior art as a defense under § 102, the law is clear. Initially, it must be noted that further statutory language in § 103 makes clear that an invention must be “identically disclosed or described” in a prior art reference for the defense of anticipation to arise under § 102. Further: “In order to anticipate an invention, it is necessary that all of the elements of the invention or their equivalents be found in one single description or structure, where they do substantially the same work in substantially the same way.” Aluminum Co. of America v. Sperry Products, Inc., 285 F.2d 911, 917 (CA 6, 1960). Even more significantly in this particular case: “ ‘A foreign patent is to be measured as anticipatory, not by what might have been made out of it, but by what is clearly and definitely expressed in it. An American patent is not anticipated by a prior foreign patent, unless the latter exhibits the invention in such full, clear, and exact terms as to enable any person skilled in the art to practice it without the necessity of 'making experiments.’ ” Aluminum Co. of America v. Sperry Products, Inc., supra, at 922. Accord, Allied Wheel Products v. Rude, 206 F.2d 752, 759 (CA 6, 1953). Thus the issue of anticipation before the court, precisely stated, is whether McLouth has carried its heavy burden of showing that either of the Schwarz or Miles foreign patents alone identically disclosed the invention of the patent in suit in such full, clear and exact terms as to enable persons skilled in the art to practice the invention without making any further experiments. (1) The Schwarz patent The Schwarz German patent (DX 61, Schwarz) teaches and claims a process of refining pig iron into steel by directing a jet of oxygen-enriched air or pure oxygen “onto the surface of the bath with such a high kinetic energy that it is capable of penetrating in the manner of a solid body deep into the bath by the use of extremely high velocities lying preferably above the speed of sound.” (DX 61, Schwarz, p. 2.) The teachings of the patent are stated in general language, and the patent does not teach specific operating conditions, such as an acceptable range of oxygen blowing pressures, flow rates, lance heights, bath depths and widths or nozzle diameters. Neither does the patent specify whether the oxygen jet is to be directed vertically downward against the bath or at an angle less than a right angle. No exemplary conditions are given. According to Dr. John Chipman, a professor emeritus of metallurgy and former head of the department of metallurgy at Massachusetts Institute of Technology, who testified for plaintiffs, the Schwarz patent does not teach a practical operating process. (R. 1019.) Defendant McLouth argues to the contrary, relying on testimony of Dr. Richard A. Flinn, a professor of metallurgical engineering at the University of Michigan, who testified for defendant. However, Dr. Flinn admitted that the Schwarz patent, unlike the patent in suit, does not teach specific operating conditions. (R. 8158-8160, 8184-8188.) Dr. Flinn also testified that the Suess patent in suit does not teach a practical operating process, except for the exemplary condition, because insufficient directions are given in the specification as to the proper operating conditions for heats of larger or smaller size than the 35 ton exemplary heat. (R. 7885.) Clearly, if Dr. Flinn thought that the patent in suit was too indefinite, although it contains far more specific and detailed information about operating conditions than the Schwarz patent, he could not have seriously contended that the Schwarz patent was sufficiently definite to teach a practical operating process or to anticipate the patent in suit. According to Dr. Durrer, a pioneer experimenter with oxygen in steel-making, who testified at the trial, Schwarz’ work never led to any practical results for commercial steelmaking. (R. 5085.) There is no evidence in the record to the contrary. Defendant relies on the fact that the Mannesmann Company in Germany took a license under the Schwarz patent in 1952, but there is no evidence that Mannesmann ever made satisfactory steel on the basis of Schwarz’ teachings. Dr. Durrer also testified that the Schwarz patent contained his own ideas (R. 5101; PX 301-A), yet Dr. Durrer himself required fur-’ ther experimentation with oxygen blowing in Gerlafingen, Switzerland in 1948 and 1949, and even with such experimentation, he did not make steel comparable to that made in Linz by the patentees starting in June of 1949. (See infra, II, c. (3).) The patentees tried to follow the teachings of Schwarz and Durrer in a series of tests starting June 17, 1949, but failed to get good results, requiring further experiment in a series of tests starting June 25, 1949, to get satisfactory phosphorus removal without refractory damage. (See infra, II, c. (3).) In this connection, the recent statement of the United States Supreme Court in United States v. Adams, 383 U.S. 39, 50, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966), that an inoperable prior art reference does not negative novelty, is applicable. There is also considerable evidence in the record that the teachings of the Schwarz patent cannot, in fact, lead to good results in steelmaking because the early fluid slag required for satisfactory phosphorus removal according to the specification of the Suess patent in suit is not achieved with deep penetration of the bath by the jet, as taught by Schwarz. As Dr. John Elliott, a professor of metallurgy at the Massachusetts Institute of Technology, a witness for plaintiffs, testified at R. 6170: “Q. And what effect does the deep penetration of the oxygen jet have on the slag that prevents this adequate control of phosphorus and sulphur that you were referring to? “A. If the oxygen enters deeply into the bath, there is too little oxygen available where the slag is formed and this prevents the slag from being fluid, it keeps the iron oxide content low. The operator would say he had a dry slag. “Q. Is a dry slag good for phosphorus removal ? “A. No. It is neither fluid nor highly oxidizing.” (Also see infra, II, C (3).) Defendant’s witnesses admit that a deep penetration of the bath by the jet prevents satisfactory phosphorus removal. Mr. Johnson, for example, testified as follows (R. 3483-3485): “Q It is true, is it not, Mr. Johnson, that during at least the early part of the blow and for a substantial portion of the blow, it is necessary to operate with the lance in what would be termed a high position in order to enable you to get rid of the phosphorus ? “A To be more specific, it is necessary to melt some of the slag from constituents as early as possible, and the higher lance position would assist in doing that. “Q You have to have, as you put it, a higher lance position in order to enable you to get a fluid slag early in the operation in order to enable you to adequately get rid of the phosphorus. Is that a fair statement? “A We want to melt some of the slag from constituents as soon as possible so that phosphorus reduction can start. “Q. And the way that you do that is by utilizing a high lance position at the outset ? “MR. GRONER: ‘High’ being used relatively? MR. WEBB: Yes. ***** * “Q As a matter of fact, it is true, is it not, that the reason why you operate at the higher lance level in the earlier portions of the blows in your No. 1 and No. 2 Shops than you do later on in the blow is because you want to get the fluid slag so that you can get the phosphorus removal. Right? “A Partly, and also partly because the height of the material in the vessel is higher at that time. ****** “Q Shall we say, then, that that is one factor, but that the principal reason for operating at the higher lance position throughout a substantial portion of the blow, and particularly at the earlier stages of the blow, is that you want to get a fluid slag so that you can get rid of the phosphorus ? “A The intention in the operation is to start melting some of the slag as soon as possible, yes. “Q And for what purpose then ? “A So that phosphorus reduction will start. “Q How long does that phosphorus reduction continue? “A Depending on the temperature of the slag, it can continue during the entire heat or stop and start. “Q As a matter of fact it is important that you do get rid of the phosphorus, or as much of it as you can, in your operation because of the fact that your customers require low phosphorus in the steel in order that it will have the properties desired by them? “A Yes.” Also, the testimony of Mr. Horsley, Mc-Louth’s General Superintendent of the Hot Metals Division, is significant in this regard. Specifically, he testified (R. 6692-6693): “Q Yes. And during the course of the blow, on occasions the lance height was lowered. What is the reason why that lance is lowered during the course of the blow? “A Normally, we will start a blow with an elevated lance position to flux the slag. After the foreman feels the slag is fluxed, he will start lowering his lance, increasing thp flow, or one or the other, and that is to achieve penetration of the metal. ****** “Q There are occasions when the lance is raised during the course of the blow. What is the purpose of raising the lance during the course of the blow? “A I remember one heat in particular on the days you were there that the lance was raised, and that particular heat, I don’t recall the heat number, was due to a dry slag. “Q Well, from time to time in the regular operations on other occasions, they do raise the lance, do they not? “A It will happen if they need to flux or make their slag a little thinner; and also it will happen on a heat where they stop a blow on a higher carbon, they raise the lance to flux the slag just before they shut off the oxygen. “Q And the purpose in that instance is what? '“A To thin the slag. “Q And what does the thinning of the slag do? “A Build up the FeO in the slag. “Q And for what purpose? “A For phos reduction. “Q The higher lance positions are necessary during the operation in order to enable you to get a good, thin slag which will enable you to remove the phosphorus ? “MR. GRONER: You mean in all operations or the particular ones that he was just referring to where the lance was raised? “MR. WEBB: In all operations. “A Mr. Webb, our intent is to start the blow at an elevated lance position in order to build up the FeO in the slag in order to have a thin slag, then decrease the lance position or lower the lance and increase the flow to penetrate the bath after the slag has been fluxed. It is true you need a fluid slag for phos or sulphur reduction. “Q And the way you get that, as I understand your testimony, is by this higher lance position? “A That is our method of getting it.” The testimony of Mr. Johnson and Mr. Horsley is consistent with the teaching of the specification at col. 6, lines 5 to 19, concerning the desirability of an early fluid slag for satisfactory phosphorus removal. The specification of the patent in suit also teaches the avoidance of deep penetration, in contradiction to the teachings of the Schwarz patent, and, further, the specification of the patent in suit at col. 3, lines 70-75, associates the avoidance of deep penetration with the fluid slag necessary for satisfactory phosphorus removal. The Schwartz patent teaches nothing about the necessity of a fluid slag for phosphorus removal or its connection with the avoidance of deep penetration. Thus the teachings of the patent in suit are certainly not “identically disclosed or described” by the Schwarz patent. In view of the unspecific teachings of the Schwarz patent and its lack of detail concerning operating conditions, as well as the apparent inability of steelmakers including Dr. Durrer and the patentees to make satisfactory steel following the ideas of the Schwarz patent, it cannot be said that the Schwarz patent teaches the invention disclosed in the patent in suit in such full, clear and exact terms as to enable persons skilled in the art to practice the invention without further experiment. Moreover, the Schwarz patent does not teach the invention claimed in the Suess patent. Schwarz teaches nothing about the avoidance of material agitation of the bath by the oxygen stream or a circulation of the bath produced by chemical reactions in a localized reaction zone, as claimed by the patent in suit. The conclusion is, therefore, inescapable that the patent in suit is not anticipated by the Schwarz patent under 35 U.S.C. § 102. (2) The Miles patent The Miles Belgian patent (DX 61, Miles) teaches a process of blowing fluid containing from 70% to 98% oxygen (DX 61, Miles, p. 2) downwardly into a bath of molten pig iron, preferably at an angle betwen 30 and 75 degrees (p. 17), so that the major part of the fluid jet penetrates into the bath (p. 3), serving to circulate and agitate the metal and slag. (p. 18.) The gist of the invention appears to be the teaching of blowing upon the surface of the metal at a velocity which is sufficiently high to assure the penetration of almost all the fluid into the bath, so as to react with the oxidiza-ble impurities of the metal and eliminate them. (pp. 2, 20.) According to the patent: “The course of the refining can be controlled by varying the inclination of the jet with respect to the surface or by varying the velocity of the gases or their composition.” (p. 4.) In a specific example, the Miles patent teaches the use of a nozzle of 0.32 inches inside diameter, operated at an oxygen pressure of 7 or 8 atmospheres and spaced 6 inches above the surface of a molten metal bath, to obtain the desired penetration of the bath by the jet. (p. 3.) The invention of the Miles patent is applied in its specification to the Bessemer process in various manners; thus, in effect, a variety of steelmaking processes are suggested in the specification. For example, the specification suggests the use of a normal basic Bessemer blow “until the end of the carbon flame period after which the converter is tipped downward, the air feed is cut off and a high speed jet of oxygen and nitrogen in liquid or gaseous state is projected in order to oxidize the remaining impurities.” (p. 5.) In another example, the patent states that “It becomes needless to provide the Bessemer with the usual bottom if the high speed jet is injected into the bath of molten metal through one or more tuyeres, the nozzles of which are located a few inches above the surface of the metal bath.” (p. 7.) It cannot be said that the teachings of the Miles patent identically disclose the invention of the Suess patent in suit in such full terms as to enable persons skilled in the art to practice the invention without further experiments. In the first place, the teachings of the Miles patent are tentative and leave open a number of possibilities, some of which are recommended over others. Certain of the operating conditions of the patent in suit are included within the broad range of possibilities taught by Miles, but are not necessarily recommended by Miles. Thus Miles teaches that “The jet is established at any angle between 15° and 90° with respect to the horizontal, but preferably between 30° and 75°, while the distance from the jet to the metal and/or the slag should be between 1 and 20 inches, preferably between 4 and 12 inches.” (p. 17.) In contrast, the patent in suit teaches and claims only vertical blowing, which is not recommended by Miles, and also teaches a range of nozzle bath distances from 6 to 80 inches, which only partially overlaps the range of distances taught or recommended by Miles. Further, the patent in suit teaches and claims only the use of pure oxygen gas, but Miles teaches the use of an “oxidizing fluid” which may be either liquid or gas and which may contain as much as 30% nitrogen, (p. 2.) Miles appears to recommend the use of liquid rather than gas by stating: “one of the advantages afforded by the use of a liquid instead of a gas for the jet is that the liquid has a greater force of penetration into the metal; if desired, therefore, the projecting tuyere can be maintained at a greater distance from the metal. Another advantage results from the fact that the oxgen-nitrogen mixture is produced in liquid state during normal manufacture and can be transported and stored more economically than a gas.” (p. 2.) Miles also apparently recommends a certain percentage of nitrogen in the fluid used. Thus the patent states: “ * * * it has been found that it is too costly to employ a fluid containing more than 98% oxygen so that in effecting the present invention, the relation of nitrogen to oxygen in the refining fluid has been kept between so/m and %s. The preferred percentage of nitrogen is between 5% and 25% * * (pp. 4-5.) In sum, a person skilled in the art would have to depart from the recommendations of the Miles patent in respect to blowing angle, blowing distance, the use of liquid rather than gas and the chemical composition of the oxidizing fluid in order to arrive at the teachings of the patent in suit. Although the patent teachings of vertical blowing pure oxygen gas from a distance of at least six inches are not expressly precluded by the teachings of the Miles patent, a person skilled in the art, starting with the Miles patent, would certainly require considerable further experiment to arrive at such teachings of the patent in suit in order to practice the invention. The differences already mentioned between the Miles patent and the patent in suit are alone sufficient to dispose of the contention of anticipation by Miles. In addition, Miles’ suggestions of a variety of processes, including examples using more than one jet, would require a person skilled in the art reading the Miles patent to experiment with the various suggestions to determine which, if any, are satisfactory. Moreover, the Miles patent does not contain certain essential teachings of the patent in suit, and indeed contains teachings inconsistent therewith. For example, Miles teaches that the major part of the jet penetrates into the bath (p. 3), serving to circulate and agitate the metal and slag. (p. 18.) The patent in suit, on the other hand, claims a process which avoids material agitation of the bath by the jet and includes a circulation caused by chemical reactions rather than the action of the jet. Further, the patent in suit teaches the avoidance of a deep penetration into the bath by the oxygen jet (e. g., col. 3, line 74). In general, the teachings of the Suess patent concerning operating conditions are more specific and detailed than those of Miles. For example, the patent in suit (at col. 3, lines 56-7) teaches a range of blowing pressures from 5 to 25 atmospheres of pressure, but Miles contains no such teaching. Additionally, in col. 10, the patent in suit teaches an exemplary operation in great detail concerning the quantity and composition of pig iron and scrap used and slag material added, blowing pressure and nozzle diameter, nozzle bath distance, blowing time, oxygen consumption and efficiency, and chemical composition of the steel produced. Miles teaches no such detailed example producing satisfactory steel. According to Dr. Durrer, Miles’ work led to no practical results in steelmaking (R. 5085), and Dr. Chipman testified that the Miles disclosures did not describe a practical operating method for making steel. (R. 1019.) There is no evidence in the record to the contrary. In fact, there is admittedly no evidence in the record that steel of the quality now produced at Linz and at the McLouth plant in Trenton, Michigan, was produced anywhere in the world by an oxygen top blowing process prior to June of 1949. (R. 13,484-13,486.) Dr. Durrer and Dr. Hellbruegge were familiar with Miles’ work, and yet even with further experimentation consisting of more than 100 heats by the spring of 1949, they appar