Full opinion text
OPINION LANE, District Judge: This is an action under 35 U.S.C. § 146 to review the decision of the United States Patent Office Board of Patent Interferences in an interference proceeding between Harold B. Law and John W. Tiley, and their respective assignees, Radio Corporation of America [hereinafter “RCA”] and Philco Corporation [hereinafter “Philco”]. Plaintiff, RCA, is a corporation organized and existing under the laws of the State of Delaware, and is licensed to do business in the State of New Jersey. Defendant, Philco, is a corporation organized and existing under the laws of the State of Delaware, and is licensed to do business in the State of New Jersey. Thus, this court has jurisdiction over the parties and venue is proper in this district. On December 31, 1963, the Patent Office Board of Patent Interferences decided Interference No. 88,472, Tiley (Philco) v. Law (RCA), awarding priority of invention to Tiley. On February 25, 1964, Law appealed to the United States Court of Customs and Patent Appeals, pursuant to 35 U.S.C. § 141. On March 9, 1964, Tiley, pursuant to 35 U.S.C. § 141, filed with the Commissioner of Patents notice of election to have all further proceedings in this case conducted as provided in 35 U.S.C. § 146. On March 25, 1964, plaintiff, the assignee of and party in interest with respect to the Law patent application, brought the present action under 35 U.S.C. § 146 against defendant, the assignee of and party in interest with respect to the Tiley patent application. Plaintiff seeks an adjudication that the decision of the Board of Patent Interferences was erroneous and that its assignor Law was the original and first inventor of the invention in issue, a method used in the manufacture of color television picture tubes. In actions under 35 U.S.C. § 146, the issues are tried de novo and the evidence may include that which was introduced in the proceeding before the Patent Office as well as new materials. The specific question for determination, where, as here, the issue decided in the Patent Office was one between the contesting parties as to priority of invention, is whether or not all competent evidence, “new” and “old,” offered to the district court carries “thorough conviction” that the Patent Office erred. Morgan v. Daniels, 153 U.S. 120, 125, 14 S.Ct. 772, 38 L.Ed. 657 (1894); Etten v. Lovell Manufacturing Company, 225 F.2d 844, 848 (3d Cir. 1955), cert. denied, 350 U.S. 966, 76 S.Ct. 435, 100 L.Ed. 839 (1956). Plaintiff contends generally that the present state of the record in this court carries thorough conviction that the Patent Office erred in awarding priority of invention to Tiley rather than to Law. Plaintiff asserts that the record before the Patent Office was inadequate in that testimony is submitted to the Board only in deposition form and there is no opportunity to evaluate the candor and demeanor of the witnesses; that the documentary evidence presented to the Board with respect to the history of Philco’s work in 1950 and 1951 consisted largely of documents selected by Philco itself from the Philco files; and that as a result of the broader discovery available in the district court other important documents from Philco’s files bearing on the issues became available to plaintiff RCA for the first time subsequent to the Patent Office decision. The new evidence introduced here includes not only engineering records, but also testimony by expert witnesses at the trial who explained the statements contained in those records relating to various technical problems. In some instances the expert witnesses had themselves done or supervised work in the field of color television in the time period here of interest, and gave valuable and objective testimony as to this. The new evidence also includes testimony by deposition of a key witness, Meier Sadowsky, related to the issue of whether Tiley was an original independent inventor or whether he derived the invention from Law through Sadowsky. Defendant Philco contends that the record before this court does not carry thorough conviction that the Patent Office erred. It asserts that the additional evidence presented to this court is merely cumulative with that which was before the Board; that much of it consists of self-serving opinion evidence devoid of merit, and that some of it is barred since it relates to an issue not raised below. Stated positively, defendant Philco contends that the evidence in this case establishes that Tiley was first to conceive the invention, and was diligent from the conception not only to the demonstration in April, 1951, but also to his constructive reduction to practice on September 26, 1951; and that Tiley was first to reduce the invention to practice. Additionally, Philco contends that it is entitled to an award of priority on the ground that plaintiff’s patent application here involved was improperly converted from a joint Law-Rosenthal application to a sole Law application, since no justification for such conversion was established as required by 35 U.S.C. § 116. GENERAL BACKGROUND A number of corporations in the electronics industry had, immediately after World War II, participated in the development of black-and-white television, and in the latter part of 1946 commercial black-and-white sets were placed on the market. Increased interest was then shown and sustained effort expended in attempts to develop color television techniques, and in 1949 the Federal Communications Commission asked the electronics industry to propose standards for the development of color television in America. The Columbia Broadcasting Company, one of the proponents of a color television system, devised a method involving the use of an ordinary black-and-white tube, producing a white picture, with a moving disk mounted in front of the white picture. The moving disk was fitted with red, green and blue filters, and with this combination Columbia was able to produce a color picture. The company attempted to make its color system compatible with a black-and-white system for transmission, but found the color picture it produced could not be received by an unmodified black-and-white receiver. Nor could a transmission of a conventional black-and-white picture be received by its color receiver without some modification. Thus, the Columbia system required two standards. At an early date, RCA did demonstrate a completely engineered color television system in which electronic tubes were used. However, this system called for the use of three conventional cathode-ray tubes, one of which had a green phosphor, one a blue, and one a red, and they were combined with mirrors so that the viewer gained the impression of seeing the three in combination. This system was bulky, expensive, and somewhat impractical, and RCA felt that production of a single multicolor picture tube was necessary in order to gain Federal Communications Commission approval. Thus, RCA,, in September, 1949, inaugurated a crash program to develop a single color picture tube for use in demonstrating its system to the authorities in Washington, and Dr. Edward W. Her-old headed this program. RCA undertook five different projects, that is, five different ways of producing a color picture. Two of them involved a so-called shadow-mask principle, and it was these two that were successfully demonstrated to the Federal Communications Commission on April 6, 1950. RCA also held a much-publicized demonstration at that time for the representatives of the television industry. These demonstrations included the broadcasting of live color television programs which were received on the RCA color television demonstration sets, and also received on black- and-white television sets located throughout the Washington area. As a result of these demonstrations the RCA principle of color and black-and-white transmission and reception compatability was eventually approved by the Federal Communications Commission. Phileo did not participate in this early Federal Communications Commission competition. Shadow-mask Tubes Shadow-mask tubes, the type plaintiff RCA used in its demonstrations in Washington in early 1950, are now in wide use in the color television industry. A shadow-mask tube includes, at the viewing end of the tube, a glass viewing screen having on its inside surface a pattern of many small, closely-spaced phosphor dots which emit colored light when struck by a beam of electrons. These dots are arranged in groups, each group including three phosphor dots (“triplets”), which respectively emit red, blue and green light. There is an apertured metal mask (the “shadow mask”) inside the tube, near the viewing screen, which mask includes many holes, there being one mask hole for each group of three phosphor dots. In this type of tube three electron beams scan the mask and pass through the mask holes toward the phosphor screen. The three beams approach the mask at different angles, and, after passing through a mask hole, each beam can strike only the dot of the particular color phosphor (red, blue or green) which is allotted to that beam. The mask used in RCA’s tubes in 1950 was in the form of a perforated flat metal plate maintained by being held taut in a frame. The phosphor screen also was flat, being in the form cf a glass plate bearing phosphor dots, mounted within the tube near the viewing end. (In the tube structure common today, the mask is curved, and the phosphor dots are located not on a separate glass plate, but, instead, are on the inside surface of the curved glass wall — face plate — at the viewing end of the tube.) In late 1949 and early 1950, RCA studied several types of color television picture tubes, but it was the shadow-mask type on which RCA did its principal work. Index Tubes In the latter part of 1949, Phileo began to consider various possible methods of making color cathode-ray tubes. Most of the Phileo work was done on the “index” type tube. In this tube there is no shadow mask. In the index tube on which Phileo worked, phosphor is deposited, not in dots, but in vertical lines, for emitting red, blue and green light, respectively. An electron beam scans horizontally across (at right angles to) the vertical phosphor lines. The electron beam is turned on and off at selected times, to determine the color of the light to be emitted by the screen. Thus, for example, if the beam is turned “on” as it passes across blue phosphor lines, it will cause blue light to be emitted. In this tube, in addition to the phosphor lines, there are “index” lines of other material, having characteristics different from those of the phosphor lines. These index lines produce signals or voltages in response to the scanning of the electron beam. These voltages are fed back to circuits which control the tube, for the purpose of establishing a timed relationship between the movement of the electron beam and the electrical signals which apply the color information to the tube. Thus, when the electron beam is on the “blue” phosphor line, the “blue” information is applied to the electron beam. Philco’s experimental index-type tube during the period August 1950-September 1953 was referred to by the code name “Apple” tube. In Philco’s tubes the material usually used in making the index lines was magnesium oxide (Mgo). The index signal was typically produced by the difference in the number of “secondary” electrons coming from the index lines and from the phosphor lines. Consequently, nonuniformities in the phosphor lines could produce non-uniformities in the index signal. In Philco’s early work, in late 1950 and well into 1951, its index tubes included only one electron beam. Later they included two beams, one for causing phosphor lines to emit light and the other for producing index signals. Both the index tube and the shadow-mask tube require a screen having accurately defined phosphor patterns— phosphor dots for a shadow-mask tube, and phosphor lines (strips) for an index tube. Although the shadow-mask tube has no index signal, it is constructed so that the paths of the electron beams are controlled and will pass through the holes of the mask at such angles that they will strike the desired phosphor dots. The Count of the Invention in Suit The function of the count is to define the invention which is in issue. The count is: “In the manufacture of a cathode ray tube having a screen structure comprising a light transparent base and phosphors fixed thereto emissive of light of different colors in response to electron bombardment, a method of applying phosphors including the following steps: depositing a photosensitive layer having a solubility inversely proportional to exposure thereof to light and comprising an organic gel, a photosensitizing material adapted to vary the solubility of the gel, and inorganic phosphor particles emissive of light of one color; selectively exposing to light the areas of the deposited layer where said phosphor particles are to be retained, so as to render the layer in said areas relatively insoluble by a solvent capable of dissolving the unexposed areas of the layer; subjecting the layer to said solvent to dissolve the layer in the unexposed areas; depositing a second layer having a solubility inversely proportional to exposure thereof to light and comprising an organic gel, a photosensitizing material adapted to vary the solubility of the gel, and inorganic phosphor particles emissive of light of a different color than the first-mentioned particles ; selectively exposing to light areas of the second layer offset in relation to the first-mentioned areas, so as to render the exposed areas of the second layer relatively insoluble by a solvent capable of dissolving the unexposed areas of the second layer; subjecting the second layer to the solvent to dissolve the layer in the unexposed areas; and subsequently baking the screen structure to remove the gel without affecting the inorganic phosphor particles.” The language of the count may be explained as follows: “In the manufacture of a cathode ray tube having a screen structure comprising a light transparent base and phosphors fixed thereto emissive of light of different colors in response to electron bombardments, * * *.” The invention is a method used in manufacturing cathode ray tubes, typically color television picture tubes. The tube which is being manufactured has a screen including a pattern of phosphors supported on glass. The glass may be the curved wall of the tube at its viewing end. The phosphors, when struck by the electron beam of the tube, emit light of different colors, such as red, blue, green. “ * * * a method of applying the phosphors including the following steps: * * The invention is a method of applying the phosphors to the glass surface of a cathode-ray tube. “ * * * depositing a photosensitive layer having a solubility inversely proportional to exposure thereof to light and comprising an organic gel, a photosensitizing material adapted to vary the solubility of the gel, and inorganic phosphor particles emissive of light of one color; * * *.” This means depositing (applying to the glass) a layer which, when exposed to light in certain areas, becomes hardened or insoluble in the exposed areas. The layer includes a gel, plus a material which causes the gel to be light-sensitive, plus phosphor particles. A gel is a semisolid substance that may be jelly-like (as gelatin) or more or less rigid, formed by coagulation. “ * * * selectively exposing to light the areas of the deposited layer where said phosphor particles are to be retained, so as to render the layer in said areas relatively insoluble by a solvent capable of dissolving the unexposed areas of the layer; * * *.” This means exposing the layer to light in selected areas. These areas may, for example, be in the form of dots, or lines. A suitable optical pattern is used in making this exposure. For example, if phosphor dots are to be produced, the optical pattern will include dot-shaped holes. If phosphor lines are to be produced, the optical pattern will include strip-like transparent areas. “ * * * subjecting the layer to said solvent to dissolve the layer in the unexposed areas; * * This means washing away the layer in its areas which were not exposed to light. “ * * * depositing a second layer having a solubility inversely proportional to exposure thereof to light and comprising an organic gel, a photo-sensitizing material adapted to vary the solubility of the gel, and inorganic phosphor particles emissive of light of a different color than the first-mentioned particles; selectively exposing to light areas of said second layer offset in relation to the first-mentioned areas, so as to render the exposed areas of the second layer relatively insoluble by a solvent capable of dissolving the unexposed areas of the second layer; subjecting the second layer to the solvent to dissolve the layer in the unexposed areas; * * *.” This means repeating the procedure, using a different phosphor, and exposing the layer in different areas, followed by washing away the layer in the unexposed areas. To make the usual three-color screen the procedure is repeated a third time with phosphor of a third color. The count specifies application of at least two different color phosphors. “ * * * and subsequently baking the screen structure to remove the gel without affecting the inorganic phosphor particles.” This means heating the screen structure so as to remove the gel but so as not to affect the phosphor particles. Back and Front Projection The count does not specify whether exposure to light is to be accomplished from the front of the glass plate upon which the photosensitive layers of phosphors are deposited (front projection) or from the back of the glass plate (back projection). It is established, however, that in the construction of a shadow-mask tube, “back projection” is the only feasible method of exposure to light; whereas, in Philco’s early developmental work with a one-piece glass bulb, commencing in the latter months of 1950 and, indeed, continuing into 1953, the photosensitive layers of phosphors were deposited on the inner surface of the face plate and were exposed to light through the glass from the front of the plate (front projection). In the manufacture of a shadow-mask tube, it is necessary to commence work with a separable glass bulb, — one piece of which consists of the face plate with an inch or two of rim, the second piece being the long funnel or cone section of the bulb. The inner surface of the face plate is thus open and accessible at its maximum diameter when the photosensitive layers of phosphors are deposited on it or on a glass plate mounted just inside the open face plate. With the use of a suitable optical pattern, or exposure mask, areas of the plate are directly exposed to light projected from a position in back of the face plate. The shadow mask is then installed in back of and in close proximity to the completed phosphor screen. Finally, the face plate section with its installations and the long funnel or cone section are sealed together to form an operating tube. This use of a separable bulb requiring sealing involves a considerable cost factor in manufacturing. Because Philco worked with a one-piece glass bulb, the inner surface of the face plate was not readily accessible, and, in order to deposit photosensitive layers of phosphors and index strips on its inner surface, it was necessary to work blindly and without light through the small opening at the funnel or cone end of the bulb, — several inches removed from the inner surface of the plate. Further, it was necessary to accomplish the exposure to light of portions of the photosensitive layers deposited in the inner surface of the face plate from the outside, or front, of the one-piece bulb. The arc light was positioned in front of the one-piece bulb with an exposure grating held between the light and the outer surface of the face plate, with the light penetrating the glass before reaching the photosensitive phosphor mix. For approximately two and one-half years commencing in the summer of 1950, Philco worked on the development of a line index color picture tube containing a multicolored phosphor screen deposited by the method taught by the invention in issue. Philco’s index tubes never reached the consumer market. Until November of 1953, RCA worked with a “silk screen” or stencil-type process in making the phosphor screen used in its shadow-mask color television tubes. Then RCA commenced the development of a shadow-mask color television tube using a screen deposited by the method defined by the invention in issue. RCA achieved success within a period of four weeks. ALLEGED CONCEPTION, REDUCTION TO PRACTICE AND APPLICATION FILING DATES Plaintiff RCA alleges that its assignor, Harold B. Law, conceived the invention on the 15th day of November, 1948. Defendant Philco alleges that its assignor, John W. Tiley, conceived the invention on the 15th day of March, 1950. Philco alleges it reduced the invention to practice in April, 1951. The RCA patent application was filed on the 30th day of July, 1951, as a joint application of Law and Howard Rosenthal, RCA employees. The Philco patent application was filed on the 26th day of September, 1951, in the name of John W. Tiley, a Philco employee. The United States Patent Office declared the present interference on February 21, 1957. THE BOARD OF PATENT INTERFERENCES’ CONCLUSIONS The testimony taken in the interference proceeding was commenced on June 15, 1960, and was finally concluded on February 1, 1963. It amounted to over six thousand pages of printed testimony, and some two thousand pages of exhibits were introduced. The final hearing was held on September 30, 1963, and on December 31 the Board of Patent Interferences rendered its decision wherein it concluded: “We therefore decline to enter judgment in favor of the party Tiley on the ground that the involved RCA owned application, now standing in the name of Law as sole inventor, is without standing in this proceeding. “However, it having been found that Tiley conceived the invention of the count in interference by August 30, 1950 and reduced it to practice in April, 1951, prior to the filing date of the senior party, Law, and it having been found that Law did not actually reduce the invention to practice nor establish diligence from just prior to the entry of Tiley into the field, the junior party, Tiley, is entitled to prevail. “Accordingly, priority of invention of the subject matter in issue in said count is hereby awarded to John W. Tiley, the junior party.” As to Law’s alleged conception, the Board in its decision made the following observation: “If the classic principles of conception are applied in the manner in which they were applied in Mergathaler v. Scudder, 11 App.D.C. 264; 1897 C.D. 724, through many cases down to Bae v. Loomis, 252 F.2d 571, 45 CCPA 807 (1958); we are inclined to agree with Tiley as to the inadequacy of the matter relied upon by Law to establish conception. The work by RCA with direct photo-deposition was thoroughly inquired into from Law’s first notebook entry in 1949 up to the “crash program” instituted in 1953, about two years after Rosenthal and Law filed their application. During this time the process described by Law in his notebooks wag not used to try to make a single tube.” As to Tiley’s alleged conception, the Board stated: “We are of the opinion that Tiley has established possession of conception of the invention defined by the count in issue at least as early as August 30, 1950, when he taught the process to Payne for the purpose of enabling Payne to manufacture, at Lansdale, tubes to be used in the development of a color television system. No doubt Tiley had the idea earlier, as Bradley details the steps of the process as having been disclosed to him ‘in the spring’ of 1950. Bradley told Creamer about it and Creamer discussed the matter with Tiley ‘about the end of July’ 1950, and stated that ‘at the time of our meetings in August we had knowledge of the photographic process and were quite anxious to make use of it at Lansdale in the processing of the color screens.’ Bradley detailed the process but was not definite in date, and Creamer did not detail all the steps of the count so that it is at least possible that at the time he mentions Tiley may not have communicated to him the means of depositing the three separate series of phosphor lines and the after treatment of baking. “In any event the testimony supported by exhibits corresponding to the notebook records of Partin, Todd and Payne and the progress reports of Bradley establish continuous work in the development and testing of complete color tubes and receiver circuits from August of 1950 to the demonstration of the transmission of a color picture in April of 1951.” In regard to the issue of reduction to practice, the Board devoted some 20 pages of its decision to a review of evidence adduced on the work performed by Philco, and stated: “Here the record shows that the process of the count was used as the sole method of producing phosphor screens for cathode ray tubes from October of 1950 to at least many years subsequent to the April, 1951 demonstration. During the period between October of 1950 and April of 1951 and subsequent thereto the process was continuously repeated and duplicated. The use of the tubes produced may have been experimental, but the use of the process was not experimental but practical in the same way a new process for making test tubes would be practical even though each individual test tube produced thereby would be used only in an experiment. Thus the process as a manufacturing method was in continuous use from at least November, 1950 to April, 1951 and thereafter, as evidenced by the production of tube AE 12, for example. In view of the foregoing we find that there was a reduction to practice of the invention of the count in interference by April of 1951.” As to conversion by RCA of the joint application to a sole application, the Board observed: “The testimony, which was adduced by a searching examination, fails to show that Rosenthal intended to deceive anyone with respect to inventor-ship, so the statute is satisfied. We may go further and say that the testimony fails to show that anyone had deceptive intent in filing the Rosenthal and Law application. The most that can be said is that the import of the testimony is that the matter of joinder was treated in a perfunctory manner.” THE PROCEEDINGS IN THIS COURT The trial in this court commenced on February 8 and ended April 7,1966, there being 31 trial days. Nine witnesses were heard; the deposition of Meier Sadowsky was received in evidence; and many hundreds of pages of documentary exhibits, and a number of photographs and other physical exhibits were introduced in evidence. A substantial portion of the evidence adduced in this court is “new” evidence. Edward W. Herold, presently on the corporate staff of plaintiff RCA, was qualified by plaintiff as an expert and his examination continued through fourteen days. Dr. Herold was awarded a Bachelor of Science degree in physics at the University of Virginia, in 1930, a Master’s degree in 1942 at Polytech Institute, Brooklyn, and was awarded an honorary degree of Doctor of Science at Polytech in 1961. During the period 1930 to 1959 he was employed at RCA and specialized in electronic tube development. From September, 1949, to mid-1950 he directed and coordinated RCA’s color television tube work, and in 1951 edited a series of papers published by the Institute of Radio Engineers relating to this work. Dr. Herold was made director of electronics research laboratories at RCA research laboratories in Princeton, New Jersey, in 1957, and continued in that position until 1959 when he became vice president of Research Varían Associates in Palo Alto, California. He returned to RCA in 1965. He is a Fellow of the Institute of Electrical and Electronic Engineers, the author of articles on electronic tubes in the Encyclopedia Brittanica, a member of Phi Beta Kappa, the Sigma Psi, and for years has been listed in “American Men of Science” and “Who’s Who in Engineering.” He is a consultant to the United States Department of Defense, a member of its advisory group in electronic devices, and a member of the Board of Directors of the Institute of Radio Engineers. Dr. Herold holds more than 40 United States patents, some of which define vacuum tubes of the type used in radio and television circuits and on circuits of general utility and radio and television, including patents on electronic beam deflection devices. He is the author of more than 30 publications on technical subjects in the field of electronics, including one on the subject, “Methods Suitable for Television Color Kinescope,” published in the Proceedings in the “Institute of Radio Engineers,” under date October, 1951. The greater part of Dr. Herold’s extensive testimony relates to the daily Philco Color Tube Data Sheets covering the period August, 1950, through July, 1951. Dr. Herold exhibited profound knowledge in the field of color television development and this court was impressed with his apparent objectivity and honesty. Austin E. Hardy, an expert in the field of phosphor chemistry, was subject to examination for some six days. Mr. Hardy in 1943 received a Bachelor of Science degree in chemistry at the University of New Hampshire, and during the period 1948 to 1952 engaged in graduate work in physics at Franklin and Marshall College. He joined RCA as a phosphor chemist in 1943 and is presently an engineer leader in the chemical and physical laboratory at RCA where for more than ten years his work was related in one way or another to phosphors. In 1945 Hardy was awarded the Electrochemical Society’s Young Author’s Prize for a paper entitled, “Photoconductivity of Zinc Cadmium Sulfide as Measured with Cathode Rays Oscilloscopes,” and in 1947 was awarded the Turner Book Prize for a paper entitled, “Combination Spectro-Tradeometer and Phosphorometer for Luminescent Materials.” For some five years Hardy served as chairman of the Subcommittee on Phosphors and Optical Screen Characteristics of the Joint Electronic Devices Engineering Council, a nationwide organization of electronic engineers. He is the author of approximately ten technical papers in the field of colorimetry. The major portion of Hardy’s testimony consisted of a detailed analysis of the daily entries contained in the notebook kept at Philco by D. Payne wherein Payne recorded the methods used and the results obtained at the Philco laboratory in its work on photodeposition of phosphor screens during the period August, 1950, through 1951. Austin Hardy displayed depth of knowledge of phosphor chemistry and this court was impressed by his objectivity and truthfulness. Jesse Hilton Haines was called by plaintiff to identify certain color slides that he had developed while serving as a member of committees of the National Television Standards Committee in the late 1940’s and early 1950’s. In order that a series of slides as nearly identical as possible might be distributed among firms engaged in experimental color television work, Mr. Haines in 1950 took pictures of a multicolored table setting. Haines’ slides were used in their laboratories by both plaintiff and defendant and several exhibits relating to these slides were marked in evidence. Robert M. Bowie was called to the stand by defendant Phileo as an expert in the field of electronics. Dr. Bowie was awarded a degree of Bachelor in Chemical Technology at Iowa State College in 1929 and subsequently a Master of Science and a Ph.D. degree in physics at the same institute. He joined the predecessor of the Sylvania Corporation in the fall of 1933 where he commenced work on electronics, specializing in power tubes and patent matters relating to them. In 1934, he was placed in charge of the company laboratory, supervising research on cathode-ray tubes until World War II broke out, and then concentrated in the field of radar and microwave. In 1949 he became engineer of the physics laboratory, and in 1951 was transferred to the New York headquarters of the Sylvania Corporation as director of engineering. In 1958 he became vice president and general engineer of the research laboratories, and when Sylvania merged with General Telephone to form General Telephone Electronic Corporation, he continued as vice president and general-manager of the research laboratory until he retired in 1964. During retirement he has acted as a consultant in electronic matters. Dr. Bowie is á Fellow of the Institute of Electrical and Electronic Engineers and the American Physical Society. He has served on the board of the United Engineer Trustees, a professional society which owns and operates United Engineers Center located at the United Nations plant; and is a member of several honorary societies and has acquired some 22 United States patents, a number of which have to do with cathode-ray tubes, television and electronic circuits. Dr. Bowie has written some 35 to 40 technical papers, many concerning cathode-ray tubes. He was company representative on the National Television Systems Committee, which concerned itself with the color television standards eventually adopted by the Federal Communications Commission. Dr. Bowie impressed this court as a highly competent electronics engineer and throughout the seven days of his examination demonstrated his sincerity and honesty. However, he did not display the specialized knowledge shown by Dr. Herold and Mr. Hardy as he had not had the extensive experience they had had in the development of screens for use in color television tubes. Moreover, Dr. Bowie had devoted but seven days before trial to preparation of his testimony. Both Dr. Herold and Mr. Hardy had spent far more time in exhaustive examination and analyses of pertinent records obtained from the Phileo files. Further, defendant Phileo attempted to use Dr. Bowie as an expert in some fields in which he lacked qualification. William Earl Bradley was the second witness called by defendant Phileo. He attended the Moore School of Electrical Engineering and the University of Pennsylvania where he was graduated with a degree of Bachelor of Science in electrical engineering in 1937. Mr. Bradley is a Fellow in the Institute of Electrical Engineers, a member of the American Physical Society, the Franklin Institute, and the Operation and Research Society of America. He first commenced work in June, 1936, for the Phileo Corporation and a year later entered the television research department, and in 1946 became director of research of the Phileo Corporation, continuing in that capacity until 1957 when he joined a team of scientists and engineers in Washington in a study of the intercontinental ballistic missile developments. In July of 1959 he became associated with the Institute for Defense Analyses in Washington and presently holds the position of Assistant Vice President. Mr. Bradley is a consultant of the President’s Scientific Advisory Committee, has written a number of technical papers, and has obtained some 80 patents in his name. Bradley served as head of the Philco research laboratory prior to, during, and subsequent to the critical period 1949-1951. He had testified in the interference proceeding, and was examined in this court as to his recollection of the activities of various persons and of particular events at Philco during the period 1949-1952. Bradley volunteered his opinions and conclusions as to factual matters again and again despite the repeated admonitions of this court, and throughout his testimony clearly displayed an intent to color his testimony to support the contentions of his former employer, defendant Philco. During the course of Bradley’s examination, this court concluded that much of his testimony was unworthy of belief. Subsequent review of his testimony and comparison of it with other pertinent testimony and exhibits has served to strengthen this court’s conclusion that Bradley’s testimony is entitled to little weight. Richard S. Gudis, presently employed by the American Electronics Laboratory as an electrical engineer, also appeared for defendant Philco. He had been employed by Philco during the period from December of 1943 to January of 1955. Gudis received a degree of Bachelor of Science from the Drexel Institute of Technology in 1951 and thereafter worked on color television circuits under the supervision of Edward Creamer. In the spring of 1951, using Ansco color film, he took pictures of a Philco color television transmission of one of the colorful slides Haines had produced in 1950. Robert Stork was called as a rebuttal witness by plaintiff RCA in connection with a demonstration, given the last week of trial, of a color television tube containing a photodeposition screen in which gelatin was used as the photosensitive binder. Some three weeks earlier, Mr. Stork had accomplished the actual application of the screen used in the demonstration in this court. Walter D. Baldsiefen was called by Philco on surrebuttal. He was graduated at New York University in 1918 with a degree of Bachelor of Science in chemistry and thereafter worked on light-sensitive systems for the duPont company. Baldsiefen’s testimony centered about the use of gelatin as a vehicle for light-sensitive ingredients. Theodore A. Saulnier, Jr., the last witness to take the stand, was called by RCA to identify the container of gelatin used as a photosensitive binder by Robert Stork in making the tube used in the demonstration viewed by the court. I. LAW’S ALLEGED CONCEPTION AND CONSTRUCTIVE REDUCTION TO PRACTICE Harold B. Law, who received a B.S. degree at Kent State University and M.S. and Ph.D. degrees at Ohio State University, is a Fellow in the Institute of Radio Engineers and a member of the American Physical Society and Sigma Psi, and in 1955 was awarded the Vladimer Zworykin Prize in television. Dr. Law joined RCA in 1941, and while assigned to research on pickup tubes exhibited an active interest in advancing proposals concerning methods of making television and color television picture tubes. In July, 1947, he performed work relating to phosphor television screens containing elements of phosphors of different colors, and he recorded details of work performed on the formation of a system of color filter strips for a television phosphor screen. In this effort he used samples of rose red luster, opal green luster, and dark blue luster stains, all commercially obtainable solutions designed to form color layers on the surface of glass, as well as photoengraver’s glue which he exposed to light which was high in ultraviolet components. On November 11, 1948, Dr. Law entered in his laboratory notebook a proposai for a color kinescope in which the phosphor screen was made in such a way that a feedback light signal could be obtained for purposes of controlling the position of the electron beam. Application for a patent covering this proposal was filed July 30, 1950, and the patent issued on March 31, 1953. On November 15, 1948, the alleged date of conception of the subject invention in suit, Dr. Law made notebook entries under the heading, “Settling Phosphors for Color Kinescope,” and affixed his signature thereto ; and on February 7, 1949, an associate, Stan Forgue, signed as having witnessed and understood the entries. These two pages of longhand notes, the basis of plaintiff’s conception claim (Law Exhibit 57) read as follows: [First Page] “Settling phosphors for color kinescope. “A trial was made to settle willemite with silicate binder in it through a 100 line grill of flat electro-plated ribbons tied together every .1 inch by a fine wire. This is the grill that was made up for Schroeder’s tube. “The screen dried over the week-end and therefore stuck to the glass too tightly. Evidence was shown for a good sharp phosphor line. The experiment will be tried again. “It would be highly advantageous if the phosphor strips could be applied by a photographic process since it would be easy to get a good mask by ruling and etching glass and filling the grooves with opaque material. Such a process would accommodate itself to a curved face plate. “It may be possible to do the job by settling the phosphor in a photosensitive solution of gelatin, potassium dichromate (Stamp) WITNESSED AND UNDERSTOOD /s/ H. B. LAW FEB 7, 1949 Nov. 15, 1948 BY /s/ Stan Forgue [Second Page] and silicate binder. When the solution is poured it would be light sensitive. Exposure would harden the gelatin and trap the phosphor while the unexposed portion would rinse away. The silicate binder might have to be omitted. “Subsequent firing in air would remove the .gelatin and leave the phosphor. The second set of strips could then be applied. (Stamp) WITNESSED AND UNDERSTOOD /s/ H. B. LAW FEB 7, 1949 Nov. 15, 1948” BY /s/ Stan Forgue In explaining the work described in the first two paragraphs (Exhibit 57) Dr. Law testified: “A. The word ‘settle’ means that a container or settling tank was obtained, into which was placed a glass plate, and then a liquid poured into the tank and a phosphor was then added to the liquid so that the phosphor would be distributed over the surface uniformly. Settling, then, refers to the action of the — that takes place — -in which the phosphor particles fall through the liquid and settle on the bottom of the tank and on the glass plate. “Q. Does this first sentence refer to some work that was done — and there I am referring to the first sentence below the title to this page 38? “A. Yes, this work was done using a settling tank and a willemite phosphor to settle through a 100-line grill of flat electroplated ribbons, the grill being placed upon the glass plate. “Q. Who did the work? “A. This work was done by Mr. Meier Sadowsky.” Dr. Law stated that he had been working on the second floor of the east wing at RCA laboratories at the time, and he asked Mr. Sadowsky, who worked on the floor above, to settle this phosphor screen for him. Law also identified a page of a notebook Sadowsky used at RCA containing Sadowsky’s description of the work done on that occasion for Dr. Law: “Screen for H. Law, 11/12/48. 1 Mg/Cm 2 settled (with potassium silicate plus sodium sulfate) on glass plate on which mask of 100 mesh copper placed (lines per inch one direction) set 11:45 a. m., poured 4:00 p. m. (tilt and siph). Dry over weekend. “11/15/48. Mask (100-mesh copper) peeled off leaving lines on substrate. Some lines .not complete — due to dried silicated screen coming off with mask. Otherwise pretty good. M. Sadowsky, 11/15/48.” It is the description set out in the third, fourth and fifth paragraphs of the November 15, 1948 notations (Law Exhibit 57) that plaintiff RCA contends defines the invention in issue. Defendant Philco contends in its post-trial brief that Dr. Law’s writeup of November 15, 1948, is not sufficient to establish conception; that further and different information was “needed in order to * * * enable a person of ordinary skill in the art to understand the invention and practice it”; and that subsequent experience of Dr. Law and his colleagues at RCA in attempting without success to find out how to carry out photodeposition of phosphors bears out defendant’s contention. During the trial in this court defendant repeatedly argued that, even though the document dated November 15, 1948 (Law Exhibit 57) set forth the steps of the method defined by the count here at issue, the 1948 document does not constitute conception because of two deficiencies: (1) that it contemplated the use of gelatin as the organic gel; and (2) that the sequence of steps covered by this description would include baking between application of successive patterns of phosphor (in addition to the baking at the end) and that this might, upon application and development of the next phosphor pattern, leave very little of the first phosphor pattern remaining. (1) THE USE OF GELATIN. Testimony of defendant’s expert witness, Dr. Bowie, was adduced (on March 28, 1966) to establish that gelatin, the organic gel named by Dr. Law in his November 15, 1948, description, was not a proper material for use in photodeposition of phosphor: “I don’t believe that one would have success using gelatin for the deposition of phosphorescent screens by the process. ****** “Q. Well, Dr. Bowie, you earlier testified, did you not, to your opinion that gelatin would not be satisfactory material to attempt to use. in photo-deposition of phosphors? “A. I so testified, yes. ****** “Q. Is it your belief that it would or would not succeed for that purpose ? “A. I doubt that it would.” It is interesting to note that in other previous testimony given by Dr. Bowie he had stated (on March 22, 1966) in connection with an explanation of front or back projection of light: “Q. When you speak of gelatin coating, are you speaking of household gelatin primarily? “A. I really meant to say gel coating, since that is used in the case here. It would be polyvinyl alcohol. It probably could be gelatin, any one of the materials that are rendered photosensitive and which would be mixed then with phosphor.” To rebut Bowie’s expression of doubt as to the usefulness of gelatin (March 28, 1966), plaintiff produced a color television picture tube, the screen of which had been made by photodeposition with the use of gelatin as the organic gel. This tube, demonstrated to the court on March 31, 1966, operated successfully in ■a color television receiver in Trenton, displaying a color television program off the air from Channel 3 in Philadelphia. The tube, a three-gun, shadow-mask, color television picture tube, was made, while the trial was proceeding in this court, by Robert Stork, an RCA technician, under the direction of Theodore A. iSaulnier. In making the screen, which he did within a three-day period, Stork used the standard red, blue, and green phosphors, gelatin, water, and ammonium dichromate, but did not use any p. v. a., which is a synthetic, gel-forming material commonly used in screen manufacture. This evidence seemed to demonstrate beyond question that gelatin could be used successfully as the organic gel in ■practicing the photodeposition method Tiere in issue in making a color television picture tube. On surrebuttal, defendant offered testimony that gelatin had been improved -through the years, with Dr. Bowie testifying that in his early reference to gelatin as a deficient material, he had been speaking of the period of time from about 1948, “on up for a period of perhaps a year or two.” Defendant then called Walter D. Baldsiefen, who had for years worked with gelatins as vehicles for light-sensitive ingredients, to establish that gelatins have been greatly improved in recent years by the elimination of impurities. Baldsiefen had had no experience with testing gelatin for photodeposition of phosphors, nor did he express an opinion as to whether any of the improvements made in the quality of gelatins were needed in order to use gelatin successfully for photodeposition of phosphors. Apparently, defendant Philco intended his expert testimony to establish a basis for an inference that the type gelatin used in 1966 (Atlantic Gelatin, Pure Food Gelatin 100 Bloom (Law Exhibit 65)) to make the screen and tube used in the demonstration in this court was unavailable in 1948. The significant testimony given by Baldsiefen is that prior to 1948 gelatins were available and widely used in processes where they were sensitized with bichromates: “There are a number of hydrophilic colloids that can be used for that bichromate: gelatin, egg albumin, glue, fish glue, almost all protein substances generally, although there are some non-gelatin systems such as p. v. a. that also react with bichromates.” He also testified that 100 bloom gelatin, an inferior grade, was available in 1948. In view of the contention of defendant Philco that gelatin was not a proper photosensitive binder and that even if it proved to be usable, it was unavailable during the period in question, the deposition testimony of Meier Sadowsky, a chemist who joined defendant Philco in February of 1949 after completing eight years of work on phosphor screens for plaintiff RCA, is most interesting: “Q. At RCA what kind of material did you use? “A. Gum arabic. “Q. Why didn’t you try gum arabic at Phileo? “A. Because I had gelatin handy and according to the literature, either one could be used. “Q. There was literature about depositing phosphors on tubes with material ? “A. No, but there was literature about photolithography techniques. ****** “Q. Are you saying that at Lansdale you did not have gum arabic available? “A. I am saying I had gelatin available, and since either one, according to what the literature said, could be used, there was no point in my ordering gum arabic. I used what was handy. ****** “Q. And it might have preceded your disclosure at RCA ? (January 17, 1950.) “A. Certainly preceding my disclosure at RCA I knew that gelatin could be used, because it is in old books and I had read most of the literature up to that time in the books.” Sadowsky also testified as to the source of his knowledge concerning the use of polyvinyl alcohol as an equivalent of gelatin or gum arabic: “A. I don’t remember at the time, but animal materials are some of the gel-forming materials. I only remember those two. Later on, during the time I was at Phileo, I remember reading a report from duPont in which they mention that polyvinyl alcohol was used, and that is when I later on tried it, but I don’t remember when that was. But I do remember reading, prior to my disclosure at RCA that both gelatin and gum arabic could be used. “Q. Is polyvinyl alcohol a gelatin? “A. No, it is a gel-forming material. It is a synthetic that has some of the same properties.” (2) THE SEQUENCE OF BAKING. The last paragraph of Law’s longhand description written on November 15, 1948, calls for subsequent firing in air to remove the gelatin and leave the phosphor, and thereafter it is stated, “The second set of strips could then be applied.” Literally interpreted, the description calls for a firing in air, or baking, of the first layer of phosphor mix applied before applying the second set of phosphor strips. Literal interpretation would call also for a similar firing, or baking, as the last step in applying the second set of phosphor lines, and, if a third color is used, a third baking as the final step in applying a third set of lines. It is defendant Philco’s position that the firing, or baking, between successive applications of phosphors could not be successful, and hence, the alleged conception is in this respect deficient. Defendant’s expert Bowie states that he would not bake out the plate at the end of the first application of phosphors, for to do so would mean that upon application of the second phosphor the washing process would remove the material that had been put down on the first application as well as the unexposed photosensitive material applied on the second application. As a result there would remain on the plate at the end of the second process only the second phosphor in the places where it is desired, held down by the exposed gelatin. If the steps contained in the Law description are repeated a third time, the second phosphor would be removed at the time the third phosphor layer is baked, with the result that there would be well-defined areas of the third phosphor lying where they should be, but there would be only slight remnants of the second one, and probably very little of the first remaining. In connection with the expert witness’ testimony that the Law description called for three bakings, the following testimony was given: “THE COURT: May I ask a question here? Let’s assume, Doctor, tha+ what you have described happens here. We put on the second layer and bake it, and we have none of the first layer left or very little of it. Would anybody skilled in the trade have any difficulty rectifying that difficulty? “THE WITNESS: I expect after having looked at the results and contemplating the process he would then try several things. “THE COURT: I should think so. He would have an undesirable result right on his hands, wouldn’t he? “I suppose he would try to do something with respect to the retention of the first layer as well as the second. Is that correct? “THE WITNESS: Yes, I think he would recognize that something needed to be done.” In rebuttal testimony, plaintiff expert, Dr. Herold, states that anyone skilled in the cathode-ray screen art in 1948 would have no difficulty in rectifying the problem cited by Dr. Bowie: “In the first place, the use of organic binders to hold phosphors on screens was known and it was known that if these binders were baked in air they could be removed. It was also known that such organic binders should be removed before the screen was finally used in a cathode-ray tube. “So one of the purposes, in fact the main purpose of the firing, which is referred to in the last paragraph of Dr. Law’s Exhibit 57, he says, ‘Subsequent firing in air would remove the gelatin,’ one of the purposes was because if the gelatin were not removed and the screen were put in the tube, there would be some deleterious effects and this was understood. “And the statement means that the gelatin could be fired in air just as these organic binders that were known would be fired in air before putting the screen in the tube. “If the firing were to take place and then a second phosphor were to be applied and the first phosphor didn’t stick as a result of it, or washed off, or something of this kind, then the person doing it would automatically say, ‘Well, there is no point to firing three times, once after each phosphor, I only need to fire once before putting the tube together to get rid of it,’ and I think it will be quite obvious he would skip the firing, the baking step between phosphor depositions and would therefore bake only at the end, just as he would normally have done if he had had only one phosphor applied, the bake would have been the last step. “There is, however, a second possible solution if a person had a reason and wanted to bake between steps and this arose, if this occurred he would then use another expedient. “There is another type of binder, your Honor, which was familiar in the cathode-ray tube art known as potassium silicate or kasil, as it has been referred to in this case before. This is an inorganic binder. It does not get removed by bake-out and one could then apply the silicate binder either after the first deposition of phosphor, either before the bake or after the bake in a very gentle way one could apply this binder and then subsequent treatment and subsequent deposition processes would be less apt to affect the first deposition. “So there are these two things which were well-known, and I don’t doubt that one could think of other things which might have been available in 1948 as solutions.” It is well established that the date of conception is the date when the inventive idea is crystallized in all its essential attributes and becomes so clearly defined in the mind of the inventor as to be capable of being converted to reality and reduced to practice by the inventor or by one skilled in the art. 1 Walker, Patents § 45 (Deller 2d ed. 1964). As stated in Electro-Metallurgical Co. v. Krupp Nirosta Co., 122 F.2d 314, 318 (3d Cir. 1941), cert. denied, 314 U.S. 699, 62 S.Ct. 480, 86 L.Ed. 559 (1942): “The conception is the mental part of the process in arriving at invention and conception is evidentially established when it is demonstrated that sufficient reasoning has taken place so that the inventor fully understands and can describe the invention whereby it may be explained to others in the art. * * * ” Plaintiff RCA asserts that Dr. Law’s description (Exhibit 57) dated November 15, 1948, clearly and conclusively establishes conception of the process of photo-deposition of phosphors. RCA stands on the writing alone and contends that, while Dr. Law during the early months of 1950 obtained good results in testing the principle of photodeposition, the subsequent events are not relevant to the issue of conception presented here, — but rather bear on the issue of reduction to practice. Defendant Philco contends that Dr. Law’s written description of November 15, 1948, was a proposal — not a conception — and asserts: “Plaintiff demonstrated in its brief before the Board of Patent Interferences that each clause of the interference count is applicable to Law’s write-up of November 15, 1948. Defendant does not deny this. But under the law, this does not suffice to establish conception. Law has failed to prove conception by 1948 or any other date prior to the RCA application filing date, because contrary to what plaintiff states on pages 21 and 22 of its main brief, further and different information was ‘needed in order to * * * enable a person of ordinary skill in the art to understand the invention and practice it.’ As will be shown later in this section, the experience of Law himself and his colleagues at RCA in attempting without success to find out how to carry out photodeposition of phosphors bears this out.” In Applegate v. Scherer, 332 F.2d 571, 51 C.C.P.A. 1416, 1964, the court affirmed the decision of the Patent Board in favor of the junior party Scherer whose representative had by letter informed the senior party that it believed the chemical compound described in the count in issue might be more effective for the work the senior party was attempting to carry out, and delivered a sample of this compound to the senior party, who tested the sample and found it to be effective. In affirming the Board’s conclusion that the junior party’s representative’s letter amply met the test of conception, the court stated at 573: “Appellants seem to propose that there cannot be a conception of an invention of the type here involved in the absence of knowledge that the invention will work. Such knowledge, necessarily, can rest only on an actual reduction to practice. To adopt this proposition would mean, as a practical matter, that one could never communicate an invention thought up by him to another who is to try it out, for, when the tester succeeds, the one who does no more than exercise ordinary skill would be rewarded and the innovator would not be. Such cannot be the law. A contrary intent is implicit in the statutes and in a multitude of precedents. “Thinking of the matter in this light and asking who made the invention, clearly it was Scherer who had the thought and not Applegate who merely made the test.” Defendant relies on the holding in Bac v. Loomis, 252 F.2d 571, 45 C.C.P.A. 807, 1958, wherein the United States Court of Customs and Patent Appeals reversed a judgment granting priority to the junior party. There, the subject matter at issue was a system for determining the position of a craft by means of impulses emitted by radio transmitters, and involved the use of at least two pairs of such transmitters. The transmitters of each pair were synchronized in such a manner that they emitted impulses at the same frequency, but with the impulses of one station lagging, by a pre-determined interval, behind those of the other (a master-slave relationship). By obtaining readings on sets of impulses from two pairs of stations, the navigator was enabled to locate his position as lying on each of two hyperbolas and hence to fix his position at their intersection. The court found that Loomis’s earlier conception had to do with synchronization of the transmitting stations by means of a “monitor station” which he describ