Full opinion text
MEMORANDUM OPINION AND ORDER BATTISTI, Chief Judge. This is a rather complex patent case, perhaps the most protracted in existence anywhere in the world. At issue is a patent on the invention of tire treads and tread stock made from very tough synthetic rubber to which large amounts of oil have been added to increase the yield and to improve processability. Since 1950 it has been known in the trade as oil-extended rubber (OER). The issues in this case are set out in Findings 13-16. Three representative stocks (Stock A, Blend 2, and Blend 5) are charged with infringement of ten representative claims (1, 8-5, 7, 13, 14, 17-19, and 22). Firestone has defended on the grounds of non-infringement, invalidity, license, and unenforceability. As this opinion and the accompanying findings of fact and conclusions of law indicate, this Court has rejected each and every one of Firestone’s defenses; and judgment will be entered in favor of the General Tire and Rubber Company. Findings 17-21 set out the history of the patent in the Patent Office and the proceedings before Judge Holtzoff. General Tire & Rubber Co. et al. v. Watson, 184 F.Supp. 344 (D.D.C.1960). This patent was originally allowed by the Patent Office examiner whose area of expertise was directly related to the subject matter of the invention, viz, pneumatic tire treads. Invention was found by Judge Holtzoff after a full adversary attack on the invention, not only by the Patent Office but also what appears to be an unprecedented attack by the Department of Justice. A statutory presumption of validity attaches to a patent upon its issuance and the burden of establishing invalidity is imposed upon the party attacking it. It is Firestone’s burden to overcome this presumption by clear and convincing evidence, and every reasonable doubt should be resolved in favor of a finding of validity. 35 USC § 282; Cantrell v. Wallich, 117 U.S. 689, 695-696, 6 S.Ct. 970, 29 L.Ed. 1017 (1885); The Barbed Wire Patent, 143 U.S. 275, 285, 36 L.Ed. 157 (1891); Mumm v. Decker & Sons, 301 U.S. 168, 171, 57 S.Ct. 675, 81 L.Ed. 983 (1937); Frohoek-Stewart, Inc. v. Reed-Cromex Corp., 254 F.Supp. 120, 122-123 (N.D. Ohio 1966); Simplicity Mfg. Co. v. Quick Mfg., Inc., 355 F.2d 1012, 1014 (6th Cir. 1966); H. K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 163 USPQ 106, 114 (N.D.Ohio 1969), aff’d 168 USPQ (6th Cir. 1971); Forestek Plating & Mfg. Co. v. Knapp-Monarch Co., 106 F.2d 554, 557 (6th Cir. 1939). This presumption is strengthened by the fact that invention was found after extended prosecution in the Patent Office and thereafter a full federal court adversary proceeding. Hildreth v. Mastoras, 257 U.S. 27, 32, 42 S.Ct. 20, 66 L.Ed. 112 (1921); Cincinnati Butchers’ Supply Co. v. Walker Bin Co., 230 F. 453, 454 (6th Cir. 1916); Cold Metal Process Co. v. Republic Steel Corp., 233 F.2d 828, 837 (6th Cir. 1956), cert. den., 352 U.S. 891, 77 S.Ct. 128, 1 L.Ed.2d 86 (1956); United States Plywood Corp. v. General Plywood Corp., 230 F.Supp. 831, 837 (W.D.Ky.1964), aff’d, 370 F.2d 500 (6th Cir. 1966), cert. den., 389 U.S. 820, 88 S.Ct. 39,19 L.Ed.2d 71 (1967). Judge Holtzoff heard many of the same witnesses, considered the primary prior art references, and the main prior use defenses presented here by Firestone. None of this prior art was found to be an anticipation or to make the invention obvious. Findings 22-62 describe the art to which the invention relates. They describe the technology and terminology necessary to the understanding of the invention and the prior art. They also describe the man who is skilled in the relevant art and the state of the art at the time of the invention. In short, they provide the proper starting point for the resolution of technical issues and the determination of invention. Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); American Stove v. Cleveland Foundry Co., 158 F. 978, 984-985 (6th Cir. 1908); Kohn v. Eimer, 265 F. 900, 902-903 (2d Cir. 1920); Nickerson v. Bearfoot Sole Co., 311 F.2d 858, 869-870 (6th Cir. 1962), cert. den., 375 U.S. 815, 84 S.Ct. 48, 11 L.Ed.2d 50 (1963); Sanford v. Kepner, 99 F.Supp. 221, 226 (D.Pa.1951), aff’d 195 F.2d 387 (3rd Cir. 1951), 344 U.S. 13, 73 S.Ct. 75, 97 L.Ed. 12 (1952); Minnesota Mining & Mfg. Co. v. Carborundum Co., 155 F.2d 746, 749 (3rd Cir. 1946). Findings 63-79 set out the circumstances surrounding the invention and its advance over the prior art. These circumstances not only contradict Firestone’s allegations that the invention was derived from others and falsely presented to the Patent Office, but are themselves evidence of unobviousness. They have provided valuable assistance in the determination of invention. Judge Hand expressed this fact in Safety Car Heating & Lighting Co. v. General Electric Co., 155 F.2d 937, 939 (2d Cir. 1946): “Substantially all inventions are for the combination of old elements; what counts is the selection, out of all their possible permutations, of that new combination which will be serviceable. No objective standard is practicable. . . Courts, made up of laymen as they must be are likely either to underrate, or to overrate, the difficulties in making new and profitable discoveries in fields with which they cannot be familiar; and so far as it is available, they had best appraise the originality involved by the circumstances which preceded, attended and succeeded the appearance of the invention.” Judge Iloltzoff was of this view. While he recognized that the manner in which an invention is made is not determinative of patentability (35 U.S.C. § 103), he stated, at 184 F.Supp. at 347: “The fact, however, that the discovery was made accidentally by a person skilled in the art, while others had been working to find other ways and means to achieve the same objective, namely, to increase the supply of usable rubber, would seem, to some extent at least, to negative the contention that the invention was obvious.” The reaction of the industry to the invention is well known. Their reaction strengthened the statutory presumption of validity and negated. Firestone’s allegations that the invention was obvious and that its product was inferior to the prior art. Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 56, 43 S.Ct. 322, 67 L.Ed. 523 (1922); Forestek Plating & Mfg. Co. v. Knapp-Monarch Co., 106 F.2d 554, 558 (6th Cir. 1939); Ekco Products Co. v. Chicago Metallic Mfg. Co., 321 F.2d 550, 553-554 (7th Cir. 1963), cert. den., 375 U.S. 970, 84 S.Ct. 490, 11 L.Ed.2d 418 (1964). Indeed, Firestone was among the leaders in first expressing doubt, then extolling the surprising virtues of the invention. As Mr. Justice Graham said in his learned opinion in the English case (GX 2520, p. 60) : “It is indeed unusual, if not unprecedented, to find in a patent action such a tribute from a defendant to the excellence of a plaintiff’s product and process.” As in United States v. Adams, 383 U.S. 39, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966), here we have the classic indicia of invention: (a) a novel combination of elements, each old in itself, but combined in a manner counter to and discouraged by the teachings of the art, to produce a surprising result; (b) initial disbelief and skepticism by those skilled in the art; (c) followed by universal adoption of the invention, revolutionizing the art and producing great economy. The claimed invention against which the prior art is to be measured is set out in Findings 91-96. Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). While the claims of a patent limit the invention, and the specification cannot be utilized to expand the patent monopoly, it is fundamental that the claims of a patent are to be construed in light of the specification and both are to be read with a view to ascertaining the invention. United States v. Adams, 383 U.S. 39, 49, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966). The claimed invention is a product (tire treads and tread stock). It consists of the novel, interacting combination of elements. The controlling legal principles are straightforward: Even if the elements of a combination are individually old, a combination constitutes a patentable invention when it is novel, the elements have a new or different interdependent functional and cooperative relationship, and the bringing together of the elements as taught by the patent in suit was unobvious in the light of the prior art. United States v. Adams, 383 U.S. 39, 51-52, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966); Maytag Co. v. Murray Corp. of America, 318 F.2d 79, 81 (6th Cir. 1963). A new combination of old elements whereby an unexpected result is obtained (or even an old result is obtained in a more economical or efficient way) constitutes patentable invention. Webster Loom Co. v. Higgins, 105 U.S. 580, 591, 26 L.Ed. 1177 (1882); Diamond Rubber Co. v. Consol. Rubber Tire Co., 220 U.S. 428, 443, 31 S.Ct. 444, 55 L.Ed. 527 (1911); National Latex Products Co. v. Sun Rubber Co., 274 F.2d 224, 239 (6th Cir. 1959), cert. den. 362 U.S. 989, 80 S.Ct. 1078, 4 L.Ed.2d 1022 (1960); Firestone v. Aluminum Co. of America, 285 F.2d 928, 930 (6th Cir. 1960); FMC Corp. v. F. E. Meyers & Bro. Co., 384 F.2d 4, 8-9 (6th Cir. 1967), cert. den., 390 U.S. 988, 88 S.Ct. 1183, 19 L.Ed.2d 1291 (1968); Great Lakes Equip. Co. v. Fluid Systems, Inc., 217 F.2d 613, 617 (6th Cir. 1954). As will be seen, all of Firestone’s defenses cannot stand the light of day. Even more so is Firestone’s argument to the effect that there is no invention. Firestone urges that there is no invention because an unpatented but new product (OER masterbatch) was used in known and exclusively used processes to obtain a known end product (tire treads and tire tread stock). This argument misses the point by a mile and is particularly specious, because no one knew that the end product — OER tire treads and tire tread stock — could be utilized feasibly and would result in a better synthetic rubber tire. In this connection and for the technology involved, see Finding 95 which articulates Claim 14 defining the tire tread composition. There is no real question of infringement. Firestone’s defenses in this regard amount to no more than nit-picking semantics. See Robertson Rock Bit Co., Inc. v. Hughes Tool Co., 176 F.2d 783, 786 (5th Cir. 1949). Firestone says it does not infringe because the Mooney of the rubber it used was not shown by analysis of a vulcanized tire tread. There is no basis in law for this assertion and, in fact, the Mooney cannot be directly shown by such analysis. General has proven directly, beyond doubt or even challenge, the Mooney of the rubber used by Firestone in making its infringing products. It is unreasonable to read the claims otherwise. Firestone says that the rubber in its FR-S 184 has no raw Mooney because at all times prior to the addition of oil to the rubber it is in the form of a latex upon which no Mooney can be measured. With all respect, this argument is specious. Firestone regularly coagulates this latex and measures the Mooney of the coagulum as a part of its production controls for FR-S 184. Dr. Semon referred to the Mooney of latices in his testimony meaning, as he pointed out, the Mooney of the polymer when coagulated. This is obviously the intent of the claims. Firestone says Dr. Semon’s tests showed that its FR-S 184 did not meet the polymer characterization test set out in claim one. This argument hardly need be discussed. Semon’s preliminary tests using HAF black and a hydrocarbon oil showed the polymer of FR-S 184 to be well above the 60 Mooney limit set out in claim one. Even though Firestone took care not to repeat precisely any of the infringement tests performed by General, the net effect of Semon’s preliminary tests was to confirm infringement. Firestone did not present any of Semon’s preliminary tests to the Court. Those it did present were designed for failure, not fairness. Semon used oils that were not recommended for use in tread compounds and which he had never heard of as being so used. His blacks were not of the type called for in the claim one test. The tests, using high and low structure blacks which were not in existence until after 1960, were excluded at the trial. Those using high modulus furnace black are not in compliance with the claim one requirement that the black be high abrasion furnace black and are therefore irrelevant. Firestone says it does not infringe Claims 18, 19, or 22 because they call for the rubber to be substantially unmasticated or unbrokendown. Again Firestone relies on semantics. It is clear from the patent that some working is necessary in order to incorporate the carbon black and other ingredients, but no more than was used in the prior art. In other words, according to this claim language and the invention, there should be and need be no excessive mastication or breakdown such as was used by the Germans to degrade the rubber to the point of processability. Conspicuously, Firestone makes no attack on General’s direct proof of the raw Mooney, oil content, black content, extrusion Mooney values, or mixing procedures used by Firestone. In most instances, these facts have been agreed to by Firestone. They are the facts which are material to and constitute proof of infringement. The parties are at issue over the status of some 51 alleged prior art references as prior printed publications. The first category of disputed references consists of documents which originated under the government synthetic rubber program: the CD Reports, AU Reports, Technical Committee Reports, and Tire Test Reports. The AU Reports may be disposed of summarily. They originated in the government laboratories at Akron University and were found in the files of Rubber Reserve after this suit began. There is no showing that they were distributed, even to the other participants in the government synthetic rubber program. So far as has been shown, they were merely internal government papers, clearly not publications. The CD Reports, Technical Committee Reports, and Tire Test Reports may be considered together. They were distributed to a limited number of named individuals participating in the government program, according to fixed distribution lists. They were not available to the general public, but were subject to secrecy agreements between Rubber Reserve and the participants in the rubber program. A distribution to a limited group with an injunction to secrecy is not publication within the meaning of 35 U.S.C. § 102. In Badowski v. United States, 164 F.Supp. 252, 255 (Ct.Claims 1958), the Court held that: “The statutory language, ‘printed publication,’ implies that numerous copies were printed and made accessible to the general public.” In Ex parte Suozzi, 125 USPQ 445, 446-447 (P.O.Bd.App.1959), it was held that a government report restricted to use for governmental purposes was not a disclosure to the public and therefore not a printed publication under 35 U.S.C. § 102: “We will first refer to the aforementioned distribution list appearing on the last page of the reference report. From the tenor of said list, each of the entities named thereon would appear to be a regular governmental installation, or an individual in regular governmental service, either military or civilian, named as a recipient of a copy of the report because of some relation of the subject matter of the latter to work of said entity. Hence, it seems clear to us that the report is one of an internal organizational character and that each of the aforesaid entities, in receiving a copy of the report, would be doing so in an official capacity and not as a part or member of the general public. On this basis we see no establishment of publication for the reference report merely by the distribution thereof, in and of itself, denoted on said list. . . . “The distribution list of said report, and particularly when read together with the notation in question, shows that at the time of its formulation . said report was intended for and given but limited distribution, and this as we have pointed out only of an official nature. In the light of these circumstances, we can reasonably conclude only that the ‘other requesters' of the involved notation were likewise to have some official capacity for access to a copy of the report.” In Dow Chemical Co. v. Williams Brothers Well Treating Corp., 81 F.2d 495, 499 (10th Cir. 1936), the Court held: “The proof is convincing that this was a private report to one entitled to the services of the Institute; it was never published and is not therefore a ‘printed publication.’ See United Chromium v. General Motors Corporation, 11 F.Supp. 694 (D.C.Conn.), in which the authorities are gathered.” See also, Rayonier Inc. v. Georgia-Pacific Corp., 156 USPQ 110, 126 (W.D.Wash. 1967). Documents which are the subject of secrecy agreements and classified as “Restricted” cannot be anticipatory prior art. In Ex parte Harris, 79 USPQ 439, 440 (1948), the Commissioner of Patents considered the status of reports circulated among participants in a wartime government-sponsored research program, and subsequently released to the public. He stated: “It is immaterial that copies of the report were in the hands of members of the group at the time of declassification, the test is whether this material was freely available to the public at large immediately following the decision to declassify. ...” In Harris, as here, the participants in a government-sponsored research program (there penicillin, here rubber) were subject to contractual obligations against divulging technical information generated under the program to the general public. There is no showing here that these contractual obligations terminated prior to the filing of General’s patent application. None of the CD, Tire Test, or Technical Committee Reports meets the legal standards required of printed publications. None is prior art under 35 U.S.C. § 102. The second classification of disputed references is the microfilms of captured German documents. The first question is whether they meet the statutory requirement that a reference be “printed” (35 U.S.C. § 102). The leading case, Application of Tenney, 254 F.2d 619, 627 (C.C.P.A.1958), has answered the question in the negative; a microfilm is not printed and not prior art: “While microfilming furnishes a means of multiplying copies, there is no probability, from a mere showing that a microfilm copy of a disclosure has been produced, that the disclosure has achieved wide circulation and that, therefore, the public has knowledge of it. The nature of present day microfilm reproduction differs from normal printing methods. Though one would be more likely than not to produce a number of copies of printed material, one producing an item by microfilming would be as apt'to make one copy as many. In the case of printing, unless a number of copies were produced, a waste of time, labor and materials would result; present day microfilming methods, on the other hand, are as well designed to produce one microfilm as well as many without waste. “It is no doubt true that the present law is anomalous, as evidenced by our conclusion that the microfilm is not ‘printed.’ A foreign patent file, laid open for public inspection, is not a printed publication, because typewritten, while a printed publication, available to the public only in a Southern Rhodesian library, would be. The former is obviously more likely to reach the eyes of the American public than the latter. It is obvious, however, that unless we are to rewrite 35 U.S.C. § 102(b) for Congress, this must be the result reached. Our job is to interpret the law, not to make it.” Not only are Firestone’s microfilm references not “printed,” but there is no evidence of their publication. Publication is not shown by mere evidence of ability to mass produce. Browning Manufacture Co. v. Bros., Inc., 126 USPQ 499, 503 (D.Minn.1960). Directly in point are decisions which hold that German GM’s (Gebrauchsmustern) are not publications although they are indexed, the index is published, and copies of the GM are available to the public on request. Permutit Co. v. Wadham, 13 F. 2d 454, 458 (6th Cir. 1926); Bendix Corp. v. Balax, Inc., 421 F.2d 809, 811-12 (7th Cir. 1970). The German microfilms fail as prior printed publications. They are not prior art under 35 U.S.C. § 102. Firestone relies on two German documents which are not microfilms. These documents, apparently captured from the Germans during or after the war, are completely without authentication. They were apparently found in a warehouse-like library in England where they had been dumped, unbound, into folders stored in boxes. They were unearthed after this suit began by searchers working on the English case. They are not printed. There is no evidence they were ever published or that they were made available to the public (or even were in the English library) prior to November 20, 1950. They are not prior printed publications, nor prior art under 35 U.S.C. § 102. The third classification of disputed references is the preliminary and final mimeographed reports of the Wilmington Chemical Company. At least one of these reports was distributed to several individuals in the rubber industry. However, each was marked “Confidential.” There is no evidence that dissemination to the general public was intended, nor that the public had access to the reports. See, Ex parte Deaton and Kirkland, 146 USPQ 549, 550-51 (P.O.Bd.App.1965) ; Stamicarbon N.V. v. Escambia Chemical Corp., 300 F.Supp. 1209, 1215 (N.D.Fla.1969), mod. on other grounds 430 F.2d 920 (5th Cir. 1970). These reports fail as prior printed publications. They are not prior art under 35 U.S.C. § 102. The large number of references cited against the patent is in itself evidence of lack of anticipation and lack of obviousness. Hoeltke v. C. M. Kemp Mfg. Co., 80 F.2d 912, 917 (4th Cir. 1936); Ric-Wil Co. v. E. B. Kaiser Co., 179 F.2d 401, 404 (7th Cir. 1950), cert. den. 339 U.S. 958, 70 S.Ct. 981, 94 L.Ed. 1369 (1950); Minneapolis-Honeywell Regulator Co. v. Midwestern Instruments Inc., 298 F.2d 36, 38 (7th Cir. 1961); Ling-Temco-Vought, Inc. v. Kollsman Instrument Corp., 372 F.2d 263, 268 (2d Cir. 1967). Typical of the language in these cases is the following from Hoeltke, 80 F.2d at 917: “Defendant has cited 33 patents as basis for its contention that complainant’s invention is lacking in novelty; and this in itself is some evidence of the weakness of the contention. Such a citation of so many prior patents almost inevitably means either that none of them is nearly like the invention of the patentee and that the attempt is being made to invalidate the patent because the patentee has brought together for the purposes of his invention devices to be found in prior patents of different character, or that prior attempts to solve the problem with which he was confronted have not met with success.” 35 U.S.C. § 102 sets out conditions for patentability. It states that a person shall be entitled to a patent unless, inter alia, the invention was previously patented or described in a printed publication. A patent held invalid under this provision is referred to as being anticipated by a prior art reference. The standards of anticipation are strict. The invention must be disclosed within the four corners of a single reference. If a reference is silent or ambiguous with respect to an element or feature o.f the invention, that gap cannot be filled by an assumption or by combining one reference with another. An anticipating, reference must teach the invention; it is not sufficient to point to its silence or ambiguity after the invention and argue that the invention could be made out from the reference. This thought was well expressed by Judge Learned Hand in Asbestos Shingle, S & S Co. v. H. W. Johnsmanville Co., 184 F. 620, 626 (2nd Cir. 1910) where, in referring to an alleged prior art reference, he said: “The defendant’s theory is that Sachs must have meant, by cements, hydraulic cements; that by the manufacture of cardboards he must have meant the use of the usual machines; and that by the suggestion which he made of the uses of his substance he therefore disclosed completely all that Hatschek did. That is not enough; the art must be enriched by more than fruitful intimations, untested suggestions, or pregnant surmise before the subsequent comer who has elaborated and proved the invention may be deprived of his right.” See also, American Graphophone Co. v. Leeds & Catlin Co., 170 F. 327, 331 (2d Cir. 1909). Prior publications and uses must do more than point to the goal. They must mark the path. See Grubman Engr. & Mfg. Co. v. Goldberger, 47 F.2d 151, 153 (2d Cir. 1931). It is clear that anticipation cannot be found unless all of the elements of the invention are disclosed in a single prior art reference. Firestone v. Aluminum Co. of America, 285 F.2d 928, 929-930 (6th Cir. 1960); H. K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 163 USPQ 106, 114-5 (N.D.Ohio 1969), aff’d, 168 USPQ 449 (6th Cir. 1971); Preformed Line Products Co. v. Fanner Mfg. Co., 328 F. 2d 265, 271 (6th Cir. 1964). A patented combination cannot be anticipated piecemeal by finding individual features separately in the prior art. Imhaeuser v. Buerk, 101 U.S. 647, 660, 25 L.Ed. 945 (1880); Bates v. Coe, 98 U.S. 31, 48, 25 L.Ed. 68 (1878); Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 298 F.Supp. 435, 442 (W.D.Mich.1969), aff’d 430 F.2d 221 (6th Cir. 1970). The fact that a prior art reference might, by modification, be considered to disclose the invention is insufficient to establish anticipation if it were neither designed, adapted, nor actually used in the performance of the invention. Topliff v. Topliff, 145 U.S. 156, 161, 12 S.Ct. 825, 36 L.Ed. 658 (1892); Trabon Engr. Corp. v. Dirkes, 136 F.2d 24, 26 (6th Cir. 1943); Spring-A-Way Displays of California, Inc. v. Ad-Rack, Inc., 249 F.Supp. 368, 370 (S.D.Ohio 1965). An anticipating reference must bear within its four corners adequate directions for the practice of the invention. If it offers no more than a starting point for further experiments; if its teaching will sometimes succeed and sometimes fail; if it does not inform the art, without more, how to practice the new invention — it has not correspondingly enriched the store of common knowledge and it is not an anticipation. Dewey & Almy Chemical Co. v. Mimex Co., 124 F.2d 986, 989-990 (2d Cir. 1942); Lincoln Stores v. Nashua Mfg. Co., 157 F.2d 154, 160 (1st Cir. 1946); Munising Paper Co. v. American Sulphite Pulp Co., 228 F. 700, 703-4 (6th Cir. 1915); Gordon Form Lathe Co. v. Walcott Mach. Co., 32 F.2d 55, 58 (6th Cir. 1929); Morgan Const. Co. v. Wellman-Seaver-Morgan Co., 18 F.2d 395, 399 (6th Cir. 1927). Prior art involving an inoperative disclosure or one which fails to achieve its intended result (e. g,, the Rostler, German, Government, and McMillan references) does not constitute an anticipation. United States v. Adams, 383 U.S. 39, 50, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966); Trabon Engineering Corp. v. Dirkes, 136 F.2d 24, 26 (6th Cir. 1943). Disclosures in foreign prior art (e. g., the Rostler British patent and the German microfilm references) are strictly construed and are restricted to what is clearly and definitely disclosed therein. National Latex Products Co. v. Sun Rubber Co., 274 F.2d 224, 236 (6th Cir. 1959), cert. den., 362 U.S. 989, 80 S.Ct. 1078, 4 L.Ed.2d 1022 (1960); Morgan Const. Co. v. Wellman-Seaver-Morgan Co., 18 F.2d 395, 399 (6th Cir. 1927); General Tire & Rubber Co. v. Watson, 184 F.Supp. 344, 349 (D.D.C.1960). Faced with these strict legal principles, Firestone has not seriously asserted anticipation. Nevertheless, it has referred to certain groups of references as if they were anticipations. Firestone concentrates on the similarities (real or imagined) between its references and its version of General’s invention. In analyzing prior art references too, it is the differences that are relevant, and there are significant differences with respect to each significant reference corresponding to Firestone’s own classification. Firestone has alleged some eight prior use defenses. Only two need be discussed. One is the alleged prior knowledge or use by the Wilmington Chemical Company. The other is the alleged prior knowledge, use or sale associated with Tire Test 123. 35 U.S.C. § 102 bars a patent if it was “known or used by others in this country” before the invention or if it was “in public use or on sale in this country” more than one year prior to the date of the application for the patent in suit. As in the case of a prior printed publication, a prior use, knowledge, or sale does not anticipate unless it be of the same perfected invention as that of the patent. Each element or feature of the invention must be found in the alleged prior knowledge, use, or sale to invalidate the patent. Goodwin v. Borg-Warner Corp., 157 F.2d 267, 272 (6th Cir. 1946); Winslow Mfg. Co. v. Peerless Gauge Co., 202 F.Supp. 931, 936 (N.D.Ohio 1958). The proof of the asserted prior public use, sale, knowledge, or invention must be established by evidence that is so clear, convincing, and cogent as to admit of no reasonable doubt. Radio Corp. of America v. Radio Engineering Laboratories, Inc., 293 U.S. 1, 7-8, 54 S.Ct. 752, 78 L.Ed. 1453 (1934); The Barbed Wire Patent, 143 U.S. 275, 284, 36 L.Ed. 157 (1892); Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 60, 43 S.Ct. 322, 67 L.Ed. 523 (1923); Preformed Line Products Co. v. Fanner Mfg. Co., 225 F.Supp. 762, 768 (N.D.Ohio 1960), aff’d, 328 F.2d 265 (6th Cir. 1964); National Latex Products Co. v. Sun Rubber Co., 274 F.2d 224, 231 (6th Cir. 1959); Austin Machinery Co. v. Buckeye Traction Ditcher Co., 13 F.2d 697, 700 (6th Cir. 1926); H. K. Porter Co. Inc. v. Goodyear Tire & Rubber Co., 163 USPQ 106, 115 (N.D.Ohio 1969), aff’d 168 USPQ 449 (6th Cir. 1971); General Tire & Rubber Co. v. Watson, 184 F.Supp. 344, 350 (D.D.C.1960). The alleged prior use must be public, perfected, not experimental, and not abandoned. Goodwin v. Borg-Warner Corp., 157 F.2d 267, 273-274 (6th Cir. 1946); cert. den. 329 U.S. 799, 67 S.Ct. 491, 91 L.Ed. 683 (1946); FMC Corp. v. F. E. Meyers & Bro. Co., 384 F.2d 4, 9 (6th Cir. 1967), cert. den., 390 U.S. 988, 88 S.Ct. 1183, 19 L.Ed.2d 1291 (1968); Elizabeth v. American Nicholson Pavement Co., 97 U.S. 126, 135-136, 24 L.Ed. 1000 (1878); The Barbed Wire Patent, 143 U.S. 275, 285, 292, 36 L.Ed. 157 (1892); Warren Bros. Co. v. City of Owosso, 166 F. 309, 315-316 (6th Cir. 1909), cert. den., 214 U.S. 525, 29 S.Ct. 703, 53 L.Ed. 1067 (1909). The alleged sale or offer to sell must be a bona fide commercial transaction for profit and be a sale of the perfected device. A sale for experimental purposes, even if profitable, is not an anticipation. Goodwin v. Borg-Warner Corp., 157 F.2d 267, 273-274 (6th Cir. 1946), cert. den. 329 U.S. 799, 67 S.Ct. 491, 91 L.Ed. 683 (1946); Ushakoff v. United States, 327 F.2d 669, 671-672, 164 Ct.Cl. 455 (1964). The defense of alleged prior use by Wilmington Chemical Company was presented to Judge Holtzoff and rejected. It was interposed again before Judge Watkins in Baltimore, then specifically dropped and finally resurrected before this Court. The Wilmington Chemical report which purports to set out the work alleged as a prior use has been shown to fail as a prior printed publication and as an anticipation. The evidence of the work itself fares no better. No high Mooney rubber was shown; the amount of oil in the masterbatch is uncertain; no tire tread, or any other compound, was shown to have been made from the masterbatch. Firestone admits that the only attempt at compounding the material failed utterly. This work was unproved, not public, and at most an abandoned, unsuccessful experiment, never repeated. The alleged prior use of the Test 123 was also before Judge Holtzoff (by way of the testimony of Dr. Reynolds of Phillips). The government’s final report of Tire Test 123 (urged here as an anticipating reference by Firestone) was put before Judge Holtzoff by General as evidence of unobviousness. As with the Rostler work, it was undisputed that Tire Test 123 was an experiment. Again, as with the Rostler work, there can be no dispute that the Tire Test 123 work on the allegedly high Mooney rubbers was an abandoned experiment. Either of these reasons, standing alone, is sufficient to overcome the defense. Information relating to Tire Test 123 was not available to the public. It qualifies, therefore, neither as prior public knowledge nor prior public use. It is clear that there was no “sale” or offer of sale with respect to the tires of Tire Test 123 within the meaning of 35 U.S.C. § 102(b). This work was not proved by evidence of what was actually done, nor did it constitute an anticipation of the invention of the patent in suit. It was at most an abandoned experiment which led away from the invention by recommending the use of 50 Mooney cold rubber with two parts of softener as the direction in which the industry should proceed. Firestone’s main defense of invalidity is based on 35 U.S.C. § 103, which provides : “A patent may not be obtained though the invention is not identically disclosed or described as set forth in Section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” Exercising the human inclination to hindsight Firestone assembled its 144 references and selected from them bits of information which it pieced together to form a mosaic now said to point like an arrow directly to the invention. This approach is not permitted by 35 U.S.C. § 103 or the case law. In applying the test of obviousness, the Court must determine the pertinent art and the level of ordinary skill possessed by the person in that art. The scope and content of the prior art and the differences between that art and the claimed invention must also be determined. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); H. K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 168 USPQ 449, 450-51 (6th Cir. 1971). The claims and specification are to be read together, with a view to ascertaining the invention against which the prior art is to be applied, United States v. Adams, 383 U.S. 39, 49, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966). This application must be carried out not by hindsight, but with foresight applied as of the date of the invention. Goodyear Tire & Rubber Co. v. Ray-O-Vac Co., 321 U.S. 275, 279, 64 S.Ct. 593, 88 L.Ed. 721 (1944); Diamond Rubber Co. v. Consol. Rubber Tire Co., 220 U.S. 428, 434-435, 31 S.Ct. 444, 55 L.Ed. 527 (1911); Expanded Metal Co. v. Bradford, 214 U.S. 366, 381, 29 S.Ct. 652, 53 L.Ed. 1034 (1909); Webster Loom Co. v. Higgins, 105 U.S. 580, 591, 26 L.Ed. 1177 (1892); Simplicity Mfg. Co. v. Quick Mfg. Co., 355 F.2d 1012, 1015 (6th Cir. 1966). In assessing the prior art, the Court must have regard for all of the signposts contained in it. It must consider the passages and references which point away from the invention as well as those said to point toward it. Known disadvantages in old devices which would naturally discourage search for new inventions may be taken into account in determining unobviousness. United States v. Adams, 383 U.S. 39, 52, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966). What would have been obvious to one skilled in the art at the time the invention was made is determined in view of the sum of all the relevant teachings in the art, not in view of first one and then another of the isolated teachings of the art. Application of Kuderna, 426 F.2d 385, 389 (C.C.P.A.1970). Mr. Justice Graham, in England, expressed this principle succinctly, as applied to the U.K. counterpart of the patent in suit, at GX2520, pp. 63-64: “The whole of the relevant prior art must be assumed to be in the mind of the skilled addressee and this may well produce, and would produce here, as the history of the matter shows, quite a different result from that which would be produced if a careful selection from prior art is made, having the invention which is sought to be attacked in mind.” The above cases set the legal framework within which the Court is to determine obviousness or unobviousness. These bare bone principles are not always easy to apply, however, since they tend to treat as objective a test which is fundamentally subjective. Consequently, courts have developed certain empirical signposts of invention, not in derogation of the statutory test of invention, but in implementation of it. Judge Learned Hand was one of the first to clearly express this concept. In Safety Care Heating & Lighting Co. v. General Electric Co., 155 F.2d 937, 939 (2d Cir. 1946), he said that, insofar as the information was available, courts had best appraise invention : “. . .by the circumstances which preceded, attended and succeeded the appearance of the invention. Among these will figure the length of time the art, though needing the invention, went without it: the number of those who sought to meet the need, and the period over which their efforts were spread: how many, if any, came upon it at about the same time, whether before or after: and — perhaps most important of all — the extent to which it superseded what had gone before. We have repeatedly declared that in our judgment this approach is more reliable than apriori conclusions drawn from vaporous, and almost inevitably self-dependent, general propositions.” More recently, the Supreme Court has spoken on this subject, holding in Graham, supra, 383 U.S. at pp. 17-18, 86 S.Ct. at 694: “Such secondary considerations as commercial success, long felt but unresolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject sought to be patented. As indicia of obviousness or unobviousness, these inquiries may have relevancy.” In United States v. Adams, 383 U.S. 39, 51-52, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966), the Supreme Court expanded upon the secondary considerations enumerated in Graham. Among the considerations relied upon in the Court’s finding of unobviousness were: the obtaining of unexpected results arising from a novel, interacting combination of old elements; the initial expressions of disbelief by those skilled in the art, followed by widespread adoption of the invention; and the fact that the combination of elements was made in the face of respected and long-accepted teachings in the art which would naturally discourage the combination. The patentees’ overcoming of a “technological block” (that large quantities of oil could not be used in quality products such as tire treads) which those skilled in the art had not previously eliminated also constitutes cogent evidence of invention. Expanded Metal Co. v. Bradford, 214 U.S. 366, 381, 29 S.Ct. 652, 53 L.Ed. 1034 (1909); Goodyear Tire & Rubber Co. v. Ray-O-Vac Co., 321 U.S. 275, 279, 64 S.Ct. 593, 88 L.Ed. 721 (1944); National Latex Products Co. v. Sun Rubber Co., 274 F.2d 224, 240 (6th Cir. 1959), cert. den., 362 U.S. 989, 80 S.Ct. 1078, 4 L.Ed.2d 1022 (1960); Cold Metal Process Co. v. Republic Steel Corp., 233 F.2d 828, 838 (6th Cir. 1956); H. K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 163 USPQ 106, 114-15 (N.D. Ohio 1969), aff’d, 168 USPQ 449 (6th Cir. 1971); Schnell v. Allbright-Nell Co., 348 F.2d 444, 447 (7th Cir. 1965), cert. den., 383 U.S. 934, 86 S.Ct. 1062, 15 L. Ed.2d 851 (1966). Courts have also held that while lack of commercial recognition of a reference may not be relevant to the issue of anticipation (compare Tillotson Mfg. Co. v. Textron, Inc., Homelite, 337 F.2d 833, 837 (6th Cir. 1964) and Kaiser Industries Corp. v. McLouth Steel Corp., 400 F.2d 36, 45 (6th Cir. 1968), with Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 298 F.Supp. 435, 446 (W.D.Mich. 1969), aff’d, 430 F.2d 221 (6th Cir. 1970), the failure of such reference to get recognition in the trade is relevant to a showing of unobviousness. Campbell v. Mueller, 159 F.2d 803, 808-809 (6th Cir. 1947); Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 298 F.Supp. 435, 446, aff’d, 430 F.2d 221 (6th Cir. 1970). These cases are pertinent in evaluating work such as that of McMillan, Rostler, the German art, Tire Test 123, and the rest of Firestone’s references, since none was commercially significant. All of the indicators of unobviousness approved by the courts are present: the reaction of disbelief and skepticism by those skilled in the art, followed by surprise, praise, and total adoption; the revolutionary commercial success; the enormous savings gained by using the invention; the fact that every significant tire manufacturer, except Firestone, has taken a license; the long-felt need, unsolved by others working on the problem with great incentive, both from the standpoint of economics and national security; and the solution by the inventors, reached in part by accident and flying in the face of long-accepted teachings against the combination of the invention. After the fact, Firestone has assembled dozens of references from which they argue obviousness, yet they cannot explain why the industry did not think to use this “obvious” invention to effect great savings and alleviate the shortage of rubber-producing capacity in 1950. After the fact, Firestone presented witnesses who say it had all been known before, yet they cannot explain where the pioneers were when the invention was made. Dr. Semon was presented as one of the outstanding men in the rubber industry, with over 100 patents and many high awards. His skill was above that of the man of “ordinary” skill in the art, yet the invention was unobvious to him. After the fact, counsel for Firestone disparaged the invention, yet Firestone had praised it, and even now says that it could not operate its tire factories without using it (GX2687, pp. 5-9). General’s invention is proved unobvious by the genuine, contemporaneous reactions of those skilled in the art. Firestone asserts a royalty-free license (said to have been given it by the government which is said to have obtained it under the provisions of General’s Research Contract) as a defense to General’s charge of infringement in the manufacture of tire treads and tread stocks. The first relevant inquiry, therefore, should be whether the express terms of that Research Contract (said to be unambiguous by Firestone) provide for any license to tire treads or tread stocks. The answer is clearly, no; the clear, unambiguous language of the contract excludes the license Firestone seeks. Paragraph 3 limits the scope of authorized research (and accompanying license) to the production of rubber and carbon black masterbatches. It was never further extended in any material respect. Paragraph 6, the only paragraph which could provide for the submission of information (and an accompanying license) beyond the scope of Paragraph 3, specifically excludes “subsequent compounding," that is, the process of making a tire tread or other end-products from rubber. If there were any doubt, the history of the Research Contract makes it clear that the plain meaning of its terms was the intended meaning. It shows that prior to the passage of the Rubber Act of 1948, the government expressly authorized research and acquired license rights in the fields of rubber compounding and end-products. This was accomplished by agreements such as the Cross-License, Compounding, and Patent Agreements Relating to Research Work (none of which was entered into by General). The Rubber Act did not authorize such research, however; it limited government research to the improvement of synthetic rubber per se. This Act necessitated the renegotiation of the research arrangements previously in effect, with the result that all reference to research or license rights with respect to compounding, tires, treads, tread compounds, or other end-products was eliminated. See 11 O.Jur.2d 410, Contracts § 163. Another relevant factor in the construction of the Research Contract (if construction is deemed necessary) is General’s Operating Agreement, of which it is a part. The Operating Agreement clearly related only to the production of synthetic rubber, made to government specifications in the government-owned plant at Baytown, Texas. It had nothing to do with compounding, tire treads, or end-products. Section 3(i), which provided for research expenditures, to the extent approved in advance by Rubber Reserve, was specifically limited to “processes used or intended to be used” in the “manufacture of Synthetic Rubber.” Correspondingly, any license rights granted to the government by Section 8 of the Operating Agreement were limited to the “manufacture of Synthetic Rubber.” While General did not engage in any research provided for under the Operating Agreement, its Research Contract, when entered into, was specifically stated to be in implementation of and pursuant to Section 8 of the Operating Agreement. It is, therefore, clear that the research authorized and rights acquired by the Research Contract could be no broader than those under the Operating Agreement of which the Research Contract was a part: “. . . A contract should be construed in the light of a previous contract which is evidently designed to control the relations of the parties for a period covered by the latter contract, unless the latter contract is manifestly an abrogation of the former. “When a written agreement consists of more than one distinct writing or contract, the different provisions of all should be given due weight in ascertaining the intended meaning of any portion of the same. . . 11 O. Jur.2d 395, Contracts § 149.” The patent does not claim any invention made as a result of or as part of the work done by General under the Research Contract. The invention was made privately, at General’s own expense. It was completed before any work at Baytown on oil-extended rubber is even alleged to have taken place. In fact, no invention (patented or otherwise) is charged to have been made by General as a part of the government-reimbursed research, nor is it charged that General failed to provide the government with all information relating to its reimbursed work. Firestone has not even charged that it uses any information generated by General under the Research Contract in the manufacture of its infringing products. It is apparent that Firestone does not have an expressed license covering the invention of the patent in suit. Its main theory on this issue is one of implied license, based on the premise that the main, but by no means only, use of synthetic rubber is in tires. Therefore, Firestone argues, it must follow that the government, which was interested in establishing a viable synthetic rubber industry, would demand a license to the rubber’s chief end-product as well as to the rubber itself, and that the Research Contract should be read as if it had done so. Andrews v. Deering Milliken, Inc., 382 F.2d 799, 803 (6th Cir. 1967). This argument is unsound because it asks the wrong question. The question is not why the government did what it did, but what did it do. The fact is that the plain language of the contract, never modified, does not authorize research or grant licenses in the fields of compounded goods or end-products for rubber. If a “why” is of interest, the Rubber Act provides the answer, as discussed above. There are many factors negating any implied license to tire .treads or tread stocks. Perhaps the most striking is the parties’ mutual understanding of the key terms of the contract, expressed during the negotiations. On December 7, 1949, Mr. Knowlton, General’s chief negotiator and General Counsel, wrote to Mr. Hadlock, the Government’s negotiator and Executive Director of Rubber Reserve, regarding the meaning of paragraph 7 (the license paragraph) of the proposed Research Agreement furnished with Hadlock’s letter of November 23, 1949. Messrs. Knowlton and Hadlock discussed this paragraph by phone on December 9 and each made notes, Hadlock’s on the original and Knowlton’s on the retained copy of the December 7 letter. In addition, Mr. Knowlton made a separate memorandum on December 9, wrote a letter to Mr. McCoy, General’s outside counsel, on December 13, and wrote a confirming letter to Hadlock on December 16. The clear intent of both parties is summarized in the December 16 letter which states that the words “without limitation” in paragraph 7(1) of the agreement refer: “. . .to the kind of use that RFC may make of the invention and the resulting information relative to production [of synthetic rubber], and do not refer to the subsequent use of the product in other patentable combinations.” Thus, the understanding of both parties at the time the agreement was executed conformed with the plain meaning of the agreement — that no license rights with respect to end-products were to be conveyed. It is elemental that a license cannot be implied when there is an expressed license which is explicit. Hazen Mfg. Co. v. Wareham, 242 F. 642, 647 (6th Cir. 1917); Henry J. Kaiser Co. v. McLouth Steel Corp., 175 F.Supp. 743, 749 (E.D.Mich.1959), aff’d, 277 F.2d 458 (6th Cir. 1960). A license cannot be implied contrary to the intent of the parties to an express agreement covering the subject matter. Negotiations leading up to the express agreement are clearly (and necessarily) to be considered in determining this intent of the parties and, where the terms are in dispute, in construing the contract. Corbett v. Winston Elkhorn Coal Co., 296 F. 577, 579 (6th Cir. 1924); Owensboro Ditcher & Grader Co. v. Markham, 32 F.2d 564, 566 (6th Cir. 1929). While the sale of a product which has only one use may carry with it an implied license to use it in the intended way, such license does not attach where, as here, it is stipulated that the product has other important uses. Further, the right to “use” a product such as a rubber masterbatch refers to the right to use the masterbatch itself, so long as it retains its separate identity. It does not extend to uses in other patentable combinations. Rubber Tire Wheel Co. v. Goodyear Tire & Rubber Co., 232 U.S. 413, 34 S.Ct. 403, 58 L.Ed. 663 (1914); Nachman Spring-Filled Corp. v. Kay Mfg. Corp., 78 F.2d 653, 657 (2d Cir. 1935); See also, Aralac, Inc. v. Hat Corporation of America, 166 F.2d 286, 293 (3rd Cir. 1948). Rubber Tire Wheel held that Goodyear’s rights in its rubber, one use of which was in a patented tire combination, did not extend to the use of the rubber in that combination. The Supreme Court held that Goodyear’s rights in the rubber attached to it as an article of commerce: “ . . . and it continues only so long as the commodity to which the right applies retains its separate identity. If that commodity is combined with other things in the process of the manufacture of a new commodity, the trade right in the original part as an article of commerce is necessarily gone.” 232 U.S. at 418-419, 34 S.Ct. at 405: Since the government had no license, the question whether Firestone obtained it from the government need hardly be argued. It is apparent from these findings that the government had no authority, intent, or justification for giving away valuable patent rights relating to tires in connection with the sale of its synthetic rubber plants. By Firestone’s own estimates, this would have been a multimillion dollar bonanza, completely without consideration to the government (DX 1836). Certainly, it cannot be assumed that the Disposal Commission had authority to give away valuable government rights. In order to constitute a waiver, there must be an intentional relinquishment of a known right. The facts show no such intent or action on General’s part. Further, there is no evidence that either the government or Firestone were misled or relied upon any of General’s actions. American Locomotive Co. v. Chemical Research Corp., 171 F.2d 115, 121 (6th Cir. 1949); Everhart v. State Life Ins. Co., 154 F.2d 347, 356 (6th Cir. 1946); Joyce v. Gentsch, 141 F.2d 891, 897 (6th Cir. 1944); In re Euclid Doan Co., 104 F.2d 712, 715 (6th Cir. 1939). Firestone’s estoppel theory is self-defeating. If the government were not entitled to a license, then everything General is accused of was perfectly proper and consistent with there being no license. If the government were entitled to a license, then any action by General in attempting to avoid the license would have been ineffective and, hence, irrelevant. Firestone has raised certain miscellaneous defenses, including a charge that the patent is invalid for failure to comply with the requirements of 35 U.S.C. § 112; that the patent is invalid because of an alleged fraud on the Patent Office; and that the patent is unenforceable because of an alleged misuse. These allegations, dubious from the outset, were shown to be without substance or relevance at the trial. It is clear that the patent in suit is valid, infringed, enforceable, and not licensed. According to pretrial agreement, the amount and measure of damages arising from Firestone’s infringing acts need not be argued or decided now. This issue will be left to a subsequent proceeding, after appellate procedures have been exhausted. Similarly, the amount of any award arising from the Court’s ruling on the question of “costs, attorneys’ fees, and punitive damages,” deferred in this Court’s Memorandum and Order of June 22, 1970 (revised as of June 26, 1972), 349 F.Supp. 333 can properly be left to a proceeding subsequent to appellate review of the finding of fraud pursuant to Rule 54(b), F.R.Civ.P. and so it shall be. Therefore, it is hereby ordered that U. S. Patent 2,964,083 is valid, enforceable, infringed, and not licensed. This holding (but not the accounting) is specifically directed to the infringement of representative Claims 1, 3-5, 7, 13, 14, 17-19, and 22 by representative Stock A, Blend 2, and Blend 5 (and tires whose treads are made therefrom) in view of the pretrial order limiting trial to those representative stocks and claims. FINDINGS OF FACT AND CONCLUSIONS OF LAW FINDINGS OF FACT The Parties, Actions, and Jurisdiction. 1. This is a patent infringement action involving The General Tire & Rubber Company (hereafter “General”), an Ohio corporation whose principal place of business is in Akron, Ohio, and The Firestone Tire & Rubber Company (hereafter “Firestone”), also an Ohio corporation whose principal place of business is in Akron, Ohio. 2. The patent in suit, U. S. Patent No. 2,964,083 entitled,. “Pneumatic Tires and Tread Stock Composition,” was issued to General on December 13, 1960, and is and has been owned by General since that date. GX2516 par. 1 3. The history of litigation with respect to this patent has been complex and protracted. Infringement actions on the patent have been brought in this Court by General against Firestone, Goodyear, Uniroyal, Goodrich, Mohawk, Dunlop, Mansfield, Denman, McCreary, and Seilon. With the exception of Firestone, these actions have been settled. In addition, General has entered into license agreements under the patent with Armstrong, Carlisle, Cooper, Gates, Hercules, and Schenuit. Foreign counterparts of the patent in suit have been or are being litigated in at least England, France, South Africa, and Mexico. FX2897 FX2946 GX2519 GX2675 FX2947 FX2948 GX2520 GX2518 4. For practical purposes, the controversy has narrowed to one between General and Firestone. Its entry into the legal arena began on March 30, 1961, when Firestone and coplaintiff, McCreary Tire & Rubber Company, filed a declaratory judgment complaint against General in Baltimore, Maryland. That action (hereafter the “Baltimore case”) sought a declaration that the patent in suit was invalid, not infringed, and licensed to Firestone royalty-free. General responded on April 4, 1961, by filing an infringement action against Firestone in this Court (hereafter the “Cleveland case”), thus joining Firestone to the ranks of Goodyear and Uniroyal (then U. S. Rubber) whom General had sued for infringement in this Court on December 13, 1960, the day the patent issued. Also, on October 23, 1961, General filed a counterclaim for infringement in the Baltimore case. Complaint (C67-206) Complaint (36,799) Counterclaim (C67-206) 5. General’s prosecution of the Cleveland infringement action against Firestone was enjoined by the Baltimore Court, and trial of the Baltimore case commenced April 15, 1964. That trial continued until January 11, 1967, during which time a record of some 38,000 pages of transcript and over 2,000 identified exhibits was amassed. 130 U.S.P.Q. 138, 139 B1 B38,267 6. On January 11, 1967, the United States Court of Appeals for the Fourth Circuit, acting upon a petition for writ of mandamus filed by General, entered an opinion, and the next day a formal order, directing the Baltimore Court to transfer the Baltimore case to this Court. The reasons for this transfer and a detailed history of the Baltimore case appear in the opinion of the Court of Appeals reported at 373 F.2d 361. Writ, January 12, 1967 7. The transfer became final once the Supreme Court denied Firestone’s petition for certiorari; this Court then dissolved the injunction prohibiting General from proceeding in the Cleveland case and the parties began preparation for trial. During the course of that preparation they were required to submit detailed outlines of their cases, including lists of issues, witnesses, documents to be relied upon, and evidence expected to be elicited. In addition, some 16 pretrial conferences were held. Following the guidelines set out in the Handbook of Recommended Procedures for the Trial of Protracted Cases adopted by the Judicial Conference of the United States and, later, the Manual for Complex and Multidistrict Litigation, the Court and the parties expended substantial efforts to clarify and narrow issues and to set ground rules prior to trial to the end that the trial would not be unduly protracted. 386 U.S. 960, 87 S.Ct. 1031, 18 l.Ed.2d 109 (1967) Pretrial Conf. June 14, 1968, pp. 28-32 8. On June 22, 1970, this Court, acting upon General’s motion, entered a memorandum opinion and order dismissing Firestone’s declaratory complaint in the Baltimore case for fraud and unclean hands and as being unnecessary for the full protection of Firestone’s rights in defending against General’s infringement action. That memorandum and order also consolidated all other litigable issues in the Baltimore case with General’s infringement complaint in the Cleveland case and deferred consideration of the question of costs, attorneys’ fees, and punitive damages arising from the Court’s determination of fraud. Memorandum Opinion and Order, June 22, 1970, pp. 12-15 9. In its memorandum and order of June 22, 1970, the Court also denied Firestone’s motion to dismiss both the Cleveland and Baltimore cases for an alleged patent misuse by General. The memorandum and order of June 22,1970, constitutes this Court’s Findings of Fact and Conclusions of Law with respect to the issues therein decided. Memorandum Opinion and Order pp. 24-25 10. Trial of the Cleveland case and all litigable issues from the Baltimore case commenced September 30, 1970, and concluded January 22, 1971, after some 45 days of trial. The Cleveland record comprises nearly 6,000 pages of transcript and over 600 identified exhibits. The entirety of the Baltimore record, except insofar as portions of it were struck or limited on motion of one or the other of the parties, also has been made a part of the record of this actio