Full opinion text
MEMORANDUM OF OPINION RENFREW, District Judge. INTRODUCTION These seventeen consolidated actions were tried to the Court in a lengthy and comprehensive trial. All of the cases involve U.S. Patent No. 2,974,432 (the “ ’432 patent”) issued March 14, 1961, to Koret of California (“Koret”), now known as Koracorp Industries, Inc. (“Koracorp”), as assignee, and thereafter assigned to Koratron Company, Inc. (“Koratron”), a wholly owned subsidiary of Koracorp. In 15 of the 17 cases Koratron seeks to recover from certain garment makers license royalties for the use of the patented process or damages for infringement of the patent after expiration of their respective licenses. Each of these garment makers contends in the alternative that the ’432 patent is invalid for a multitude of reasons; that if valid, it has not been infringed by any use of the patented process for which royalties or damages are due; or that even if the patent is valid and infringed, Koratron is precluded from enforcing it because of its alleged misconduct before the Patent Office and by other patent misuse. Finally, they contend that Koratron has violated the antitrust laws. In the Levi Strauss action, Koratron also asserts an antitrust complaint against Levi Strauss and a third party complaint against Dan River Mills, Inc. (“Dan River”). Koratron contends that Levi Strauss conspired with other garment makers in violation of the antitrust laws to refuse to pay royalties due Koratron under their license agreements and to refuse to comply with and to perform their other obligations thereunder. In the remaining cases, Koratron sued Deering Milliken Inc. (“Deering Milliken”), a mill which manufactures and sells fabric to garment makers, for common law interference with Koratron’s business relations with certain of its licensed garment makers. Koratron charges that Deering Milliken unlawfully represented to garment makers that certain processed fabric offered for sale by Deering Milliken could be manufactured by ’432 patent licensees into permanent press garments without incurring any royalty obligation to Koratron under the ’432 patent. Deering Milliken denies the allegations and asserts the same defenses regarding the patent and its use as did the garment makers. “Adversaries” (that is, all of the parties adverse to Koratron other than Dan River) claim that an agreement between Koratron and Dan River dated October 14, 1965, violates the antitrust laws. Dan River and Koratron both contend that the agreement does not violate the antitrust laws. Koratron contends that if such an antitrust violation were found Dan River would be liable in turn to Koratron. Koratron also claims that the fabrics manufactured by Dan River do not conform to the specifications contained in the October 14, 1965, agreement contrary to the representations of Dan River, and that Dan River thereby breached its contract with Koratron. The Court has heretofore ruled against Koratron that the agreement with Dan River is not void or voidable due to the common law principles of coercion, and that ruling is hereby reaffirmed. The parties to these cases were referred to throughout the trial and are referred to in this opinion as Koratron, Adversaries, and Dan River. This terminology is appropriate because the use of the normal labels of plaintiff and defendant could cause confusion. Several of the cases were commenced by Koratron for royalties and damages, to which Adversaries’ defenses and claims described above were interposed, and the others were commenced against Koratron by Adversaries. Koratron, Adversaries, and Dan River submitted hundreds of findings of fact and conclusions of law, and then each filed exceptions to those filed by the other parties. Two weeks of argument to the Court were heard on the proposed findings and conclusions. Based upon a review of the proposed findings, conclusions, exceptions thereto, all the arguments made in connection therewith, the testimony at trial, portions of designated depositions, exhibits received in evidence, opening trial briefs of Adversaries and Dan River, and argument of counsel, the Court has reached its decision which is set forth in narrative form. The trial was not designed to dispose of all the controversies among the parties. It was limited to the issues common to the consolidated cases relating to the legal bases for all affirmative claims set forth in the pretrial order dated March 20, 1972. The pretrial order which governed the trial expressly excluded other matters such as damages. The Court has jurisdiction of each of the consolidated cases under 28 U.S.C. §§ 1331, 1332 and 1338, and venue is proper. This Court also has jurisdiction of all other claims under the doctrine of pendent jurisdiction. All of the commerce involved in or affected by the matters in controversy is interstate. I. HISTORY OP KORATRON COMPANY, INC. The predecessor of Koracorp Industries, Inc. (“Koracorp”), Koret of California, was founded as a sole proprietorship in 1938 by Joseph Koret. It manufactured and sold skirts designed to coordinate with sweaters produced by other manufacturers. A partnership was formed in 1939, and in 1944 Koret of California (“Koret”) was incorporated. Over the years Koret has marketed a variety of sportswear items, having particular success with pleated garments. In the late 1940’s it sold a line of permanently pleated synthetic skirts under the names, Tub-pleets, Tubinyl and Nylura. By 1953 over 600,000 of such permanently pleated garments had been manufactured and sold. During the 1950’s Koret successfully marketed its Pleetset line of pleated skirts made of resin-impregnated and heat-cured cotton. Subsequently Koret produced permanent press garments under the process which forms the subject matter of the ’432 patent at issue here. Koret, now Koracorp, was the original assignee of the ’432 patent, and in 1963 it began to license the patented process to garment makers. Subsequently, the corporation registered two trademarks dealing with this patented process: “KORATRON” (Reg. No. 764,009), for the chemically treated fabric used in the manufacture of permanent press garments, and “KORATRON” (Reg. No. 769,609), for permanent press garments. In 1964 Koratron Company, Inc. (“Koratron”), was incorporated as a wholly-owned subsidiary of Koracorp, and the parent corporation transferred to Koratron the ’432 patent, trademarks and existing licensing agreements. Koratron’s only business consists of licensing and other activities relating to the ’432 patent and its trademarks. Koratron was also the owner of United States Letters Patent No. 3,268,915 (the ’915 patent), which was issued on August 30, 1966, to Koratron as assignee and which disclosed and claimed an improvement upon the process of the ’432 patent. By notice filed with the Patent Office on May 18, 1970, Koratron filed of record a formal dedication of the remaining term of the '915 patent. The licensing of the patented process was a phenomenal commercial success. From the date of the first license under the ’432 patent in 1963 through June 30, 1971, 281 garment makers had taken licenses with Koratron and paid it over 20 million dollars in royalties. II. BACKGROUND Members of the chemical, textile and garment industries have long sought means for efficiently and economically manufacturing garments which retain creases normally obtained through pressing but which avoid creases and wrinkies otherwise arising through wear and washing. There have also been substantial efforts made to manufacture wrinkle- or crease-free items such as napkins, tablecloths, pillowcases and sheets. Generally speaking, there have been two separate but related methods for manufacturing garments or other items which retain their creases or wrinkle-free appearance. Both involve the use of plastic materials called resins. The resins are classified respectively as “thermoplastic” and “thermosetting.” Thermoplastic resins soften upon application of heat and then can be molded into any desired shape, which is retained upon cooling. They can then again be softened by further application of heat and remolded to still different forms. Well-known examples of thermoplastic resins include nylon and polyesters such as dacron. Thermosetting resins become permanently set through complex chemical reactions promoted by application of heat. Once set, they are generally not softened by reapplication of heat and in most circumstances cannot, be remolded or reshaped by heat. Bakelite is a well-known example of such a resin. Basically resins are substances composed of many single molecules, or “monomers,” frequently in a water soluble state. When the resin is heated in the presence of certain catalysts (i. e., materials which control the rate of a chemical reaction without actually becoming a part of the reaction), the molecules become polymerized or linked together. When a resin is fully polymerized, it becomes a solid. The molecules of thermosetting resins, upon being heated, polymerize in several ways: by joining together to form chains, by branching and cross-linking with each other to form an intricate structure, and, if polymerized within a cellulosic fabric, by cross-linking with the cellulose molecules themselves. The order in which these cross-linking processes occur and the ultimate fixed geometry of the cross-linked resin and cellulose molecules depends in part on the kind of thermosetting resin used. This metamorphosis, or polymerization, is accompanied by a change in the resin from a water soluble to a water insoluble state. The first actual commercial exploitation of thermoplastic resins began with the introduction of nylon by du Pont in the late 1930’s. Nylon, when formed into a fiber, has thermoplastic properties which give it some degree of crease retention or crease resistance upon application of sufficient heat. In the late 1940’s and early 1950’s fabrics were made from other synthetic fibers (called polyesters) and were used in the manufacture of garments. When first introduced to the public, garments made from all non-cellulosic synthetic fibers were advertised as requiring only minimum care and “touch-up” ironing when made into garments. They were not, however, without their faults. For example, garments made completely from synthetic fabrics were found uncomfortable by some wearers, principally because the garments did not absorb moisture. In the early stages, they were also very expensive. No thermosetting resins were used in the manufacture of these garments. Today, however, as the result of improvements in the industry, the knitted polyester garments which receive their shaping by the thermoplastic process are among the most popular garments sold. In the early 1930’s Dr. John T. Marsh and his associates at Tootal, Broadhurst and Lee, Limited, in Great Britain engaged in efforts to produce a cotton fabric having crease-retaining or wrinkle-resistant properties. These properties were imparted in the bolt or flat state of the fabric by impregnating it with an aqueous solution of a thermosetting resin, squeezing out the excess resin, partially drying the fabric, and then heating it. The heating caused the resin to polymerize or “cure”, that is, produce the linking and branching between resin molecules and the rigidifying cross-linking between the resin and cellulose molecules. The cross-linking served to “set” the cellulose fibers. In other words, it imparted a “flat memory” to the fabric so that, after washing and drying, the fabric returned to its original flat state. This flat memory is sometimes termed “pre-cure” and refers to impregnated fabrics in which the resin is set, cured, or polymerized while the fabric is in its flat form before being cut and shaped into a garment. In contrast, “post-cure” refers to fabrics in which the resin is polymerized, cured, or set after a garment has been formed from impregnated fabrics and shaped into its desired form. Between these extremes there has developed “partial cure,” i. e., fabric in which some of the resins have been deliberately polymerized while the fabric was in flat form and further polymerization takes place after the fabric has been shaped into a garment. In the late 1940’s or early 1950’s cotton fabrics were developed which would require only minimal care when converted into a garment. The textile manufacturers treated cotton fabrics at their finishing plants in much the same manner practiced earlier by Tootal, Broadhurst and Lee. That is, the thermosetting resin in the fabric was cured at the finishing plant to give the fabric a flat memory so that it would resist wrinkles. The garment maker employed the traditional garment-making techniques in making garments from such fabric; these garments were then generally sold under the designation “wash and wear.” Wash-and-wear garments were widely •^'publicized as requiring minimal care and no ironing and were initially well received by consumers. Wash-and-wear garments, however, sometimes resisted shaping and creasing and could become disfigured by puckering at the seams and cockling. Such garments did not live up completely to their promised performance, and the public became somewhat disenchanted. Wash-and-wear garments could, however, perform satisfactorily in some cases so long as and to the extent that the garment makers took care in sewing and designing the garments. The poor performance attributable to some wash-and-wear garments resulted in part from the fact that in some instances textile mills reduced the quantity of resin and in other instances some garment makers failed to exercise the proper degree of care in making the garments. Today wash-and-wear garments are still popular items, and most men’s shirts are made from this process. III. SCOPE OF THE '432 PATENT A. Introduction These cases begin and end with the ’432 patent. The issues as to its scope and validity occupied the greatest part of the trial. Where a case involves questions as to both the validity and scope of a patent, there is a threshold determination regarding which question should be dealt with first. At trial the parties initially addressed the issues of patent validity and subsequently dealt with the issues underlying patent scope and infringement. Such a procedure was a practical one for trial; it was not known then whether any infringement issue would arise since a holding of invalidity would have mooted infringement issues. However, in this opinion the Court will deal first with the question of the scope of the patent, since both questions of validity and infringement can best be resolved with a clear understanding of precisely what the ’432 patent covers. B. The Four Claims of ’US2 The ’432 patent was issued with four claims on March 14, 1961, and was entitled “Press-Free Crease Retained Garments and Method of Manufacture Thereof” (A copy of the patent as issued is attached to this opinion as Appendix A). The applicants were William K. Warnock, then an employee of Koret of California, the original assignee, and Frank G. Hubener, a partner in the Ace Dye Works, an independent fabric finisher. When the application for the ’432 patent was filed, it contained eight claims, four directed to a process of manufacturing press-f: ;t garments and the other four directd u garments made by the practice of the process. The inventors’ attorney argued to the Patent Office that the desired garments and the process for making them were interrelated and that, if garments having the desired press-free characteristics were to be efficiently produced, it was necessary to practice the process disclosed in their patent application. Ultimately, only four process claims were allowed, each of which is involved in these consolidated actions. All four claims differ from each other in certain respects. Claims 2 and 3 differ from Claim 1 in part by specifying that approximately 70 per cent by weight of the resin should be retained in the fabric after the fabric is squeezed and before drying. Claims 2 and 3 also identify the temperature range in the garment-setting oven as from 350 °F. to 400 °F. Claim 3 differs from Claims 1 and 2 in part by calling for a mixture of polymerizable resins in the fabric. Claim 4 differs from the other three claims in part by specifying that only a “major amount by weight of the resin” be retained before final drying. “[E]ach claim is in theory a separate patent.” Moon v. Cabot Shops, Inc., 270 F.2d 539, 544 (9 Cir. 1959), cert. denied, 361 U.S. 965, 80 S.Ct. 596, 4 L.Ed.2d 546 (1960); Walker v. General Motors Corporation, 362 F.2d 56, 58 (9 Cir. 1966); 4 Deller’s Walker on Patents (2d ed. 1965), § 225, p. 69. The Court finds at the outset, that the four claims of the ’432 patent define the same invention. Therefore, each finding and conclusion in this opinion relating to the patent applies to each claim individually, and the term “ ’432 patent” will be used, for convenience, as a collective reference to these claims. C. Degree of Polymerization The crucial claim is Claim 1, which is as follows: “[In a process of manufacturing garments unrestricted as to style, size, design and type wherein a garment fabric is impregnated with an aqueous solution of a polymerizable resin and the fabric partially dried at a temperature below the polymerization temperature of the resin so as to maintain the contained resin in an unpolymerized state and approximately 2% to 8% of moisture is retained in the fabric,] the steps of cutting said fabric containing the resin in an unpolymerized state to the size, shape and style of desired garments, sewing said fabric to provide desired garment seams, finishing the cut and sewn fabric to completed garments of desired styles and designs, thereafter imparting a crease in each of the completed garments at random locations therein consistent with the designs and styles of the completed garments, and thereafter curing the impregnated, partially dried completed garments to insolubilize the contained resin in situ so that the completed garments are press-free and the imparted creases therein are unaffected after repeated washings of the garments” (original text; brackets added). Koratron argues vigorously that the portion of Claim 1 within brackets above is merely a preamble to the operative steps recited in the body of the claim which follows. Seizing upon the distinction between the preamble and body of the claim, Koratron asserts that the bracketed language in no way constitutes any limitation on the otherwise broad scope of the patent, which, in Koratron’s view, teaches only that sufficient polymerizable resin must be retained in the.fabric to impart adequate permanent press properties after completion of the garment. Adversaries and Dan River argue to the contrary that the scope of the patent is confined to the use of the fabric in which virtually none of the contained resins are polymerized, set, or cured before the garment is made. Preliminarily, it should be noted that the distinction between preamble and body of the claim may not be as significant as the parties suggest. The limiting reference in the preamble to drying the fabric “at a temperature below the polymerization temperature of the resin so as to maintain the contained resin in an unpolymerized state and approximately 2% to 8% of moisture is retained in the fabric” (See Appendix A, column 4, lines 60-64) is mirrored in the body of Claims 2, 3 and 4. See, respectively, column 5, lines 11-14; column 5, lines 33-36; column 6, lines 10-14. It is well established that “a patentee’s broadest claim can be no broader than his actual invention, no matter how it may be expressed or what other claim his patent may contain”, Kemart Corp. v. Printing Arts Research Laboratories, 201 F.2d 624, 633 (9 Cir. 1953), Moon v. Cabot Shops, Inc., supra,, 270 F.2d at 544, and, as indicated below, the Court finds that the “actual invention” disclosed in the ’432 patent teaches that polymerization of resins be “deliberately avoided” prior to completion of garment manufacture. The Court feels that the better view in this case is that the preamble should be read together with the body of the claim. At the outset it is not clear here where the preamble stops and the body begins, nor is it clear that the inventors intended such a distinction in the patent. It is well established that the claims of a patent must be read in light of the entire document, including the specifications and drawings. Oregon Saw Chain Corp. v. McCulloch Motors Corp., 323 F.2d 758, 762 (9 Cir. 1963), cert. denied, 377 U.S. 915, 84 S.Ct. 1180, 12 L.Ed.2d 186 (1964); Doble Engineering Co. v. Leeds & Northrup Co., 134 F.2d 78, 84-85 (1 Cir. 1943); 4 Deller’s Walker on Patents (2d ed. 1965) § 225, p. 66. Even if there were a clear distinction in a particular claim between body and preamble, the better rule would be that the body of the claim must be viewed in light of the entire language used within the four corners of the instrument itself, including any preamble. In this case, moreover, the applicants themselves argued on behalf of their claims with respect to this very preamble (File Wrapper, Patent No. 2,974,432, (hereinafter F.W.), pp. 81-82) that “[i]t is well settled, both by decisions of the tribunals of the Patent Office and by our federal courts that while the preamble is not an element of the claim, it (the preamble) may affect the enumerated elements so as to give life and meaning and vitality to them. Or, the preamble may be used to differentiate the invention sought to be patented from prior art references.” See, e. g., Marston v. J. C. Penney Company, 353 F.2d 976, 986 (4 Cir. 1965), cert. denied, 385 U.S. 974, 87 S.Ct. 515, 17 L.Ed.2d 437 (1966); Eversharp, Inc. v. Phillip Morris, Incorporated, 256 F.Supp. 778 (E.D.Va.1966), aff’d per curiam, 374 F.2d 511 (4 Cir. 1967). This argument was made by the applicants in connection with the rejection by the Patent Office of the claims (which were eventually allowed) on the ground that the garment recited in the claims could be a wrap-around skirt, which could be produced under prior art by the Zinamon, et al., (No. 2,769,584) or the Brown (No. 2,817,468) patents (F.W., pp. 72-73). To overcome this rejection, applicants argued that the preamble in question referred to the manufacture of press-free garments “unrestricted as to size, shape, style or design” (F.W., p. 81, lines 23-24). Since the claims in question were granted only after applicants made this argument, they should not be permitted now to urge that the entire preamble not be read in conjunction with the claims in question. Rather than merely specifying the use of a fabric which contains “sufficient polymerizable resins,” the ’432 patent, read as a whole, clearly teaches the use of fabrics in which polymerization has been “deliberately avoided” at all stages prior to the baking of the completed garment. The patent teaches throughout that before garment completion the temperatures for drying and handling the fabric are kept below the polymerization temperature of the resin and that the step of polymerization — i. e,, baking at a temperature high enough to set the resin — occurs only after the entire garment has been completed. In discussing the tenter frame to be used, the specification states: “It is to be understood that a drying atmosphere of approximately 200° F. is maintained as the fabric is passed along the tenter frame; such drying atmosphere being substantially below the temperature required to cure, set or polymerize the resins in the fabric. That is to say, polymerization of the copolymers of the two resin forming ingredients of the solution with which the fabric is impregnated is deliverately [sic] avoided in our improved method during the stages of padding, stretching, finishing and drying” (Column 3, lines 42-51). Where a mechanical finish is desired, the specification indicates that a flat nip calendar can be used, but even in this process the suggested temperatures for the calendar rolls (250° F. to 300° F.) are below the 350° F. to 420° F. temperature range specified in the patent for curing relatively light-weight cotton garments (Column 3, lines 37-42, and Column 4, lines 7-9). Further, the specification contains repeated references to manufacture of completed garments before polymerization of the resins: “A primary object of our invention is to provide a method of manufacturing press-free crease retained garments having thermosetting resins therein which includes the step of polymerization of the contained resins after the garments have been completely finished and are otherwise ready to wear” (Column 1, lines 51-56); “A still further object of our present invention is to provide a method of the indicated nature for manufacturing press-free crease retained garments which is additionally characterized by controlling the quantity of the introduced non-polymerized resins so that the material of the garments can be easily handled during the cutting, sewing, pressing and otherwise finishing of the garments prior to the polymerization of the resins contained in the finished garments” (Column 1, lines 62-70); “[T]he treated fabric is cut, sewed, finished and pressed to provide the completed garment prior to the final step of subjecting the finished garment to the action of heat in a garment-setting oven to effect polymerization and setting of the resins in the garment as an entirety” (Column 3, lines 23-27); and, “After garments have been completed by cutting, sewing, finishing and pressing, which may include pleating by a mechanical pleating step, the entire garments are disposed in a garment-setting oven operating at a temperature with the garments contained therein for a sufficient time to effect complete polymerization and setting of the resin in the garments to a water-insoluble state” (Column 3, line 69 — Column 4, line 2). To support its contention that the patent teaches only that a sufficient quantity of uncured resins need remain in the fabric, Koratron points out that the specification refers to the heating of a final or “take-off” roller: “The final or take-off roller upon which the fabric is rolled after passage through the tenter frame and flat nip calendar, if used, may or may not be heated depending upon the degree of crease resistance desired in the fabric and this is dependent upon the type of fabric being processed; heating of this final or take-off roller usually effecting an increase in the crease resistance of the treated fabric” (Column 3, lines 52-59). Koratron’s expert, Dr. Herman Mark, stated that this taught him that the patent contemplates a partial cure of some but not all of the resins. Contrary to the testimony of Dr. Mark, however, no such claim is made in the patent; indeed each claim specifically teaches to the contrary. The deliberate avoidance of polymerization until the cure of the completed garment is not only contained in the preamble to Claim 1, in which reference is made to drying the fabric at “a temperature below the polymerization temperature of the resin so as to maintain the contained resin in an unpolymerized state”, but in the claim itself: “the steps of cutting said fabric containing the resin in an unpolymerized state to the size, shape and " style of desired garments, sewing said fabric to provide desired garment seams, finishing the cut and sewn fabric to completed garments * * * and thereafter curing the impregnated, partially dried completed garments to insolubilize the contained resin in situ so that the completed garments are press-free and the imparted creases therein are unaffected after repeated washings of the garments” (Column 4, line 64 — Column 5, line 2). Similar language is also found in Claims 2, 3 and 4. Claims 2 and 3 refer to fabric drying “at a temperature insufficient to polymerize the contained resin” (Column 5, lines 11-12 and 33-34), and Claim 4 refers to “a temperature below the polymerization temperature of the contained resin” (Column 6, lines 11-12). Claims 2 and 3 go on to speak of curing the garments “to polymerize and set the contained resin to a water-insoluble state” (Column 5, lines 19-20 and 42-43), and Claim 4 “to insolubilize the resin in situ” (Column 6, lines 19-20). In summary, from a reading of the specification, preamble and bodies of all claims together, it is clear that the ’432 patent teaches that polymerization of the resins in the fabric prior to final garment completion is to be, in the patent’s own words, “deliberately avoided”. D. Moisture Limitation (1) File Wrapper Estoppel Adversaries and Dan River argue at length that the “metes and bounds” of the ’432 process are restricted to a resinated fabric having a moisture content of 2 to 8 per cent above its natural moisture content prior to garment manufacture. They contend not only that the claims are so limited but also that these limitations were added to the original claims in order to avoid rejection due to prior art, and thus operate as a file wrapper estoppel binding Koratron. The Court finds, however, that their contention is not supported by either the language of the patent or the patent prosecution history as revealed by the file wrapper. First, they overlook that the patent’s references to moisture content in each instance are qualified by the significant modifier “approximately”. Second, the inventors claim no more for that approximate range of moisture content than that it was preferable to other methods of controlling the drying of the resin-impregnated fabrics (Column 3, lines 59-62). Third, the prior art which Koratron sought to overcome itself contained moisture restrictions which overlap the range suggested in the ’432 patent. For example, the Brown patent, No. 2,817,468, showed, inter alia, the steps of treating a fabric “with a crease setting or holding liquid such as a resin” followed by drying “to an approximate 8 percent to 15 percent moisture content” (Brown patent, Column 2, lines 30-37). Similarly the patent issued to Zinamon, et al., No. 2,769,584, calls for a “preliminary heating” of the impregnated fabric, with an “important feature” of this step being “that the fabric at the end of the preliminary heat treatment should still contain from 5 to 10% of moisture” (Zinamon et al. patent, Column 2, lines 47-51). A fabric’s natural moisture content is the amount of moisture which it will absorb from the atmosphere expressed as a percentage of the weight of the dry fabric, and this amount varies with the composition of the fabric and with the ambient temperature and humidity (R.T., pp. 1968-1969, 2011; Solinger, Apparel Manufacturing Analysis, p. 50). For example, cotton fabric (which is referred to in the ’432 patent) has a natural moisture content of approximately 6 per cent. Adding the 2 to 8 per cent moisture content referred to in the ’432 patent (Column 3, lines 61-62) results in a range of approximately 8 to 14 per cent for ’432, clearly within that of the Zinamon and Brown patents each of which presumably includes the natural moisture content within its specified moisture range. Adversaries and Dan River misconstrue the thrust of the arguments advanced by Koratron to overcome the Zinamon and Brown patents. Referring the Court to various portions of Paper No. 9 of the File Wrapper (White to Patent Office, June 16, 1958), they note that it was in this letter, in response to the rejection based on Zinamon and Brown of the product claims 5-8, that the quantitative description of moisture limitation first appeared; and it was this moisture limitation, they contend, that Koratron stressed in its attempt to distinguish its claims from Zinamon and Brown. This argument either overlooks or misunderstands the distinction which Koratron in fact offered. After admitting to a “similarity” between their disclosure and that of Zinamon and Brown in that all three taught the impregnation of a fabric with polymerizable resins and the drying of the fabric “to the extent of retention of approximately 8% moisture therein * * the inventors continued: “From that point on, applicants make an abrupt departure from the methods disclosed and taught by Zinamon and Brown which, as pointed out above relate specifically to the textile manufacture art and not to the art of manufacturing garments. * * * Specifically, there is no disclosure or teaching in either Brown or Zinamon, et al. that the garments be made up from the resin-impregnated fabric containing the specified amount of moisture. There is nothing at all in these cited references relating to the garment manufacturing art. Nor is there any suggestion in either of these references that such garment manufacture be carried on with moist resin-impregnated fabric” (F.W., pp. 51-52). The vital distinction asserted was that the Zinamon and Brown patents did not teach that garments, as distinguished from fabric, were to be made from the moist fabric. See also F.W., pp. 68-69. Thus Koratron argued to the Patent Office that “ [applicants [sic] process claims are directed to the steps of * * * drying the impregnated fabric to an extent so that it retains approximately 2-8 percent of its moisture content, while leaving the resin unpolymerized, thereafter making completed garments from the moist fabric * * *” (F.W., p. 49, lines 20-27). When the Patent Examiner rejected the application for the second time and cited, among other things, the Zinamon and Brown patents (F.W., p. 57), Koratron again emphasized the importance of moisture content by asserting “approximately 2% to 8% moisture” limitations into every method claimed (F.W., pp. 59, 60). However, the patent process claims were not accepted until Koratron was able to persuade the Examiner that the distinction between its claims and those of Zinamon and Brown was that its claims were without restrictions as to size, shape, style or design of completed garments as distinguished from possible wrap-around garments which, according to the Examiner, could be produced from fabric permanently pleated by the Zinamon or Brown methods (F.W., pp. 81-82). In sum, Koratron sought to distinguish its process from Brown and Zinamon primarily on the basis that ’432 taught a process by which an unrestricted range of garments could be produced, not on the basis of any fixed range of moisture content. Thus, no file wrapper estoppel operates as to moisture limitations in the ’432 process. (2) Relationship Between Moisture Content and Cure The patent does not, by any reasonable construction of its terms, teach a process in which efforts are made to cure resin-impregnated fabric to any degree prior to manufacturing a garment in its final shape. The specification of the patent (Column 1, lines 50-56) states that “[a] primary object of our invention * * * includes the step of polymerization of the contained resins after the garments have been completely finished and are otherwise ready to wear.” Some polymerization undoubtedly does occur prior to final garment manufacture, either by design to impart fixed creases or from auto-polymerization of some resins, but the thrust of the patent, and an aspect of it which rendered it really novel, was that the maximum amount of the resin (no specific percentage was taught nor can one be determined due to differences in fabrics, resins, catalysts, and manufacturing and drying conditions) in the fabric should remain unpolymerized until after the garment had been completed. There was evidence that a resin-impregnated fabric under normal circumstances will start self- or auto-polymerization even before it is baked. It is in this context that the suggested moisture content is significant. Moisture content and degree of polymerization are related in two ways. First, the moisture content during drying may provide a control to prevent undesired premature polymerization. While moisture is present in the fabric, the temperature of the fabric will generally not exceed 212 °F., the boiling point of water, even though the temperature of the drying chamber may be higher. 212 °F. is below the temperature at which resins normally polymerize. To prevent polymerization, moreover, the ’432 patent specification suggests (Column 3, line 43) that the drying should take place in an “atmosphere of approximately 200 °F.” Second, moisture content provides some indication of non-polymerization. As long as substantial moisture remains, polymerization probably has not taken place to any significant degree. The fabric containing a solution of polymerizable resin and dried to approximately 2% to 8% above normal regain is not dry to the touch. Rather, it feels slightly damp — at least to someone familiar with fabric finishing. Rather than constituting a limitation on the scope of the ’432 patent, therefore, the range of moisture content suggested in the patent is merely a preferred method for avoiding as much polymerization as possible before the cure of the completed garment. Since the moisture content range is not a limitation on the scope of ’432, it is not necessary to discuss Koratron’s contention that it is entitled to a range of equivalents beyond the numerical recitations about moisture content in the claims. E. Alleged Admissions Regarding Patent Scope Adversaries and Dan River introduced considerable evidence tending to show that Koratron and its predecessors conceived of the process as requiring approximately 2-8% above normal moisture content in the fabric and also deliberate avoidance of curing or polymerization of resins prior to garment completion. The evidence showed that: 1. The Process Consultant of Koratron’s Research and Development Department and an officer of the corporation, Richard Tomaselli, testified that he considered that the patent required fabric which “essentially remains totally uncured” (R.T., pp. 4155-4156); 2. In the specification of their subsequently issued Patent No. 3,268,915 (the ’915 patent), the ’432 inventors, Warnock and Hubener, stated that the “essence” of the ’432 concept was “that the solution remains unset or uncured until after the completion of the garment” (Patent No. 3,268,915, column 6, lines 37-40); 3. In 1961 Koratron obtained British Patent No. 862,653, a counterpart of ’432 which contained no specific moisture limitation. However, when faced with the expense of litigating a claim of patent opposition threatened by Tootal, Broadhurst and Lee, Ltd., a large British textile firm, Koratron expressly limited its British patent by including a restriction to a moisture content of approximately 2-8% above normal (R.T., pp. 4860-4863); 4. Koratron advised its mill licensees in its textile mill manuals that fabric for the ’432 process should contain above-normal moisture concentrations, the specific percentage depending upon the type of fabric produced. These manuals advised that an excessive drying temperature could “induce a precure” and should therefore be avoided. The garment maker manuals initially specified that the garment makers use “chemically treated, but uncured, quality controlled fabric from a Koratron licensed fabric mill” (R.T., pp. 5995-5996); 5. Louis Hoehstaedter, then a Koratron vice-president in charge of licensing mills and garment makers, delivered a speech in New York in 1964 to the American Association for Textile Technology, Inc., emphasizing that the '432 process generally involved no precuring (R.T., pp. 5928, 5953-5956); 6. An article published in Women’s Wear Daily in March, 1962, stated that the Koratron fabric was “dried at a temperature low enough to prevent polymerizing of the resin contained in the fabric.” Copies of this article were subsequently sent to some potential garment-maker licensees (A-893, A-804b); 7. To combat Dan River’s then new “Dan Press” process in 1965 Koratron ran advertisements in trade papers read by garment makers and fabric manufacturers, among others, attempting to distinguish Koratron from “partial cure” processes. One advertisement, known to Koratron’s advertising personnel as “The Threat” ad, concluded that “[a] garment made from cured or partially cured fabric is not the real (Koratron) thing. Not at all” (R.T., pp. 4622-4623); and 8. In an agreement concluded with Dan River on October 14, 1965 (see p. 50, infra), Koratron in effect acknowledged that fabrics defined by reference to their moisture content and degree of polymerization were critical to a determination of the scope of the ’432 patent. Herman A. Greenberg, who as the president of Koratron negotiated the Dan River agreement, testified that it was his understanding that these factors, and the related element of avoiding excessive heat, were central concepts in the ’432 patent.. Based on this understanding and on the technical advice of John F. Barry, one of Koratron’s technical experts, Greenberg concluded during the negotiations that Dan Press was “an animal * * * different than Koratron” (R.T., pp. 3770-3774). This evidence uniformly supports the overall view that the ’432 patented process, as construed by Koratron, teaches that prior to final garment completion, (1) polymerization is to be deliberately avoided, and (2) an approximate 2-8% above-normal moisture content should be maintained in order to avoid the undesired premature curing. However, the Court finds that moisture content limitation does not constitute a limitation of the scope of the patent but rather the preferred methodology for avoiding polymerization. F. Garments Covered The Court finds that the ’432 patent, by its own terms, is “unrestricted” as to the style, size, design and type of garments to be produced. Unlike many of the prior processes which generated only pleated skirts, or skirt sections, ’432 is applicable to a wide range of garments, both in maintaining creases and pleats and in rendering them wrinkle-free. G. Fabrics The patent teaches that “a variety of different textiles” may be used to practice the invention (Column 2, line 50). It is not to be limited “to any precise fabric” (Column 2, line 5). Nevertheless, because of the underlying chemistry set forth above, there must be at least some cellulose fibers in the fabric with which polymerizable resins may interact, since the resins contemplated will not cross-link with, for example, certain synthetic fibers during formation of the polymers which generate permanent press characteristics. The initial 100% cotton garments made by the process encountered abrasion problems and were later replaced by fabric blends such as nylon and cotton and polyester and cotton to provide abrasion resistance and to enhance permanent press characteristics. The Court finds that the patent covers any fabric or fabric blend which will absorb and retain an aqueous resin solution and in which some of the fibers will cross-link appreciably with resin polymers formed during cure to give the desired permanent press characteristics. H. Resins The patent specification discloses the use of a mixed urea formaldehyde-melamine formaldehyde resin system, but it further states that “there are a plurality of resins suitable for our purpose” (Column 2, lines 42-43), and that the use of commercially available resins is contemplated. The claims do not specify any particular resin or resin mixture. Dan River argues that the patent does not contemplate the use of a glyoxal resin known as DMDHEU, which is currently used by Dan River and other mills, an example of which is “Permafresh 183” sold by Sun Chemical. Fabrics impregnated and cured with DMDHEU have a longer shelf life and are less odor-producing than fabrics impregnated with the urea-melamine formaldehyde resins. Dan River stresses that DMDHEU has been known and used for some time in Europe, and that the chemistry underlying DMDHEU-cellulose cross-linking is different from that underlying the urea-melamine formaldehyde cross-linking process. Nevertheless, the '432 patent teaches merely that resins as a class may be used. Although the chemical metamorphosis which various resins undergo may vary upon application of heat, the overall cross-linking results, at least as far as garment makers are concerned, are practically the same. ’432 teaches a process of manufacturing garments, not an intricate chemical reaction. Broadly speaking, the essential factor here is that the resins are applied to the fabric and then cured in the completed garment; the particular resin which is employed is not crucial. The inventors were not sophisticated chemists and could not themselves have appreciated these highly technical differences between resins. Although use of DMDHEU may in fact improve the ’432 process somewhat, it does not alter it significantly for patent purposes. The Court finds that the practice of the ’432 process contemplates the use of fabric impregnated with all types of resins, including DMDHEU, and is not limited to an urea formaldehyde-melamine formaldehyde resin. I. Catalysts Organic acid-type catalysts are sug- ■ gested in the patent (Column 2, line 60). But as with resins, the patent suggests only that some catalyst be added so as to ensure the acceleration of polymerization when desired. The applicants were not sophisticated chemists and the state of the art was rudimentary when the patent issued in 1961. A strikingly different catalytic agent, perhaps combined with other significant process changes, might be outside ’432. However, to limit ’432 to “organic, acid-type” catalysts and no others, as Dan River argues, would be praetially equivalent to limiting the patent to the use of gas heat rather than electric heat for curing. Therefore, the Court finds that the ’432 patent is unrestricted as to the type of catalyst used in the aqueous resin solution. J. Summary of Scope Findings Based upon the ’432 patent’s claims read in light of the specification, the positions taken by the inventors and their counsel during the prosecution of the application as revealed in the file wrapper, and the conduct and admissions of both Koratron and the inventors subsequent to the issuance of the ’432 patent, this Court finds that the scope of the ’432 patented process is defined as follows: 1. The ’432 patent teaches a “post-cure” method for the manufacture of durable press garments. A complete garment is manufactured from a fabric which has been impregnated with a thermosetting resin, and after this completed garment is shaped and pressed, it is cured in an oven to set the resin thereby imparting durability to the shape and press of the garment. 2. The patented process is practiced only when the garment maker uses a fabric having the following characteristics: (a) impregnation, in the bolt' form, with an aqueous solution containing a thermosetting resin (not limited to an urea formaldehyde-melamine formaldehyde resin), any appropriate catalyst, and suitable softeners and deodorants; (b) deliberate avoidance of as much polymerization as possible during all stages of fabric impregnation and handling and at all times prior to the completion of garment manufacture; (c) moisture content of the uncured fabric not limited to a fixed range, although the approximately 2%-8% range is suggested as a preferred methodology for avoiding polymerization ; and (d) composition not limited to any specific fiber or blend of fibers except that the fabric must be capable of absorbing and retaining an aqueous resin solution and that the fabric must contain a sufficient amount of cellulosic fibers so that cure will result in appreciable cross linking between these fibers and the resin polymers or molecules. 3. The patented process is unrestricted as to the style, size, design and type of garments which can be produced. IV. VALIDITY OF THE ’432 PATENT One of the focal points of this litigation is the validity of Korairon’s ’432 patent. Adversaries vigorously argue that the process in issue here fails to meet' the conditions for patentability set forth in 35 U.S.C. §§ 102, 103 and 112 and that Koratron’s fraudulent prosecution of the patent application renders the patent invalid and unenforceable on nonstatutory grounds. Adversaries’ statutory arguments are fourfold. First, they contend that because the disputed process was anticipated in the numerous prior patents, published materials and processes cited by Adversaries, subsection (a) of Section 102 barred the issuance of a valid patent. Second, the commercial activities of Koratron (especially Pleetset) and of The Ideal Pleating Co. of New York which were carried on for more than one year prior to the ’432 application date are said to constitute prior public use under § 102(b). Third, these same prior art references and commercial processes are claimed to render the ’432 process obvious, and therefore non-patentable, under the standards of § 103. Fourth, Adversaries contend that the patent is too indefinite to meet the requirements of § 112. Finally, Adversaries argue that Koratron’s failure to disclose fully to the Patent Office these prior art references and Koratron’s misrepresentations to the Patent Office constitute a fraud on the Patent Office and that such inequitable conduct renders the patent invalid and unenforceable. After careful consideration of all the relevant argument and testimony on this issue, the Court finds that the novelty of the ’432 patent was not foreclosed by the prior art or by prior public use nor was the patent obvious in the light of the cited prior art. The Court also finds that the patent, as construed above, is not so indefinite that it cannot be enforced or practiced. In addition, while the prosecution of this patent application was not an exemplar of candor, the Court finds that Koratron’s conduct did not amount to an intentional misrepresentation of material facts nor to dishonesty or bad faith, and therefore it does not constitute a fraud on the Patent Office. Thus the Court finds that the ’432 patent is valid. Before considering in detail each of Adversaries’ asserted grounds for invalidity, it is necessary to determine what burden of proof rests upon those alleging that a patent is invalid. The issuance of a patent creates a presumption of validity and places the burden of establishing invalidity on the party asserting it. 35 U.S.C. § 282. There is much confusion, however, as to the degree of proof required to overcome this presumption. This confusion stems both from the variety of standards applied by the courts and from the generality of the language used to define such standards. Standards expressed in such terms give more weight to the presumption of validity than is warranted either by the statute or the policy behind the presumption. § 282 provides that, once a patent has been issued, it is the alleged infringer who must plead and prove invalidity as a defense. This section merely specifies the party who has the burden of persuasion; it does not dictate that the weight of this burden is any greater than the basic preponderance standard applicable in all civil suits. The statutory presumption is based on the expertise of the Patent Office. Neff Instrument Corporation v. Cohu Electronics, Inc., 298 F.2d 82, 86 (9 Cir. 1961). Due deference should be given to the expert determination of the patent examiner, and the patentee should be protected from the burden of establishing affirmatively the validity of his patent in every infringement action. A presumption which merely shifts the burden of persuasion to the party alleging invalidity clearly fulfills these limited objectives. Use of phrases such as “clear and convincing” or “clear and satisfactory” adds nothing but confusion to the application of this basic preponderance standard. These phrases imply that there is a murky middle ground of proof between preponderance and reasonable doubt, but there are in fact only these two levels of proof. Whichever standard is being applied, no court would pronounce judgment unless it was convinced and satisfied that the evidence clearly justified the decision. While proof beyond a reasonable doubt is required in criminal cases to overcome the presumption of innocence, there is no talismanic significance in the use of the word “presumption” which necessitates the application of the reasonable doubt burden in this civil case or which justifies the creation of some undefined intermediate burden of persuasion. Nor does the “clear and convincing” terminology prevent the Court from considering all forms of evidence. Oral testimony, even if it deals with events and circumstances long past, is not excluded as a matter of law. The same standard of probative value is to be applied in patent cases as is applied in any other kind of case, civil or criminal. Whiteman v. Mathews, 216 F.2d 712, 716 (9 Cir. 1954); Paraffine Companies v. McEverlast, Inc., 84 F.2d 335, 341 (9 Cir. 1936). See also Kiva Corporation v. Baker Oil Tools, Inc., 412 F.2d 546, 553 (5 Cir.), cert. denied, 396 U.S. 927, 90 S.Ct. 262, 24 L.Ed.2d 226 (1969). Nor is circumstantial evidence excluded in questions of validity. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); Reeves Instrument Corp. v. Beckman Instruments, Inc., 444 F.2d 263, 271-272 (9 Cir.), cert. denied, 404 U.S. 951, 92 S.Ct. 283, 30 L.Ed.2d 268 (1971). Use of such terminology, therefore, merely injects needless confusion into the well-accepted and understood usage of the preponderance burden. The purpose and the effect of the presumption of validity is simply to indicate which party bears the ultimate burden of persuasion; it does not nor was it intended to increase the quantum of proof required to meet the burden above the familiar preponderance of the evidence standard. But see Hobbs v. United States, Atomic Energy Commission, 451 F.2d 849, 856 (5 Cir. 1971). This presumption of validity is, of course, largely dissipated if the most pertinent of the prior art references were not brought to the attention of the Patent Office. Cool-Fin Electronics Corporation v. International Electronic Research Corporation, 491 F.2d 660, 661 n. 2 (9 Cir. 1974); Westinghouse Electric Corp. v. Titanium Metals Corp. of America, 454 F.2d 515, 516 n. 2 (9 Cir. 1971), cert. denied, 407 U.S. 911, 92 S.Ct. 2439, 32 L.Ed.2d 685 (1972); Aerotec Industries of California v. Pacific Scientific Company, 381 F.2d 795, 803 (9 Cir. 1967), cert. denied, 389 U.S. 1049, 88 S.Ct. 788, 19 L.Ed.2d 843 (1968); Jaybee Mfg. Corp. v. Ajax Hardware Mfg. Corp., 287 F.2d 228, 229 (9 Cir. 1961). Adversaries contend that, in this case, the presumption has been dissipated by Koratron’s failure to disclose all of the prior art references cited by Adversaries in this litigation. The Court in no way approves of Koratron’s inadequate disclosure to the Patent Office. However, in light of this Court’s findings that none of Adversaries’ prior art references in fact invalidates the ’432 patent, none of these references was pertinent enough to the issuance of the patent to nullify the presumption of validity. Moreover, the Court also finds, infra, that the Pleetset process, potentially the most pertinent reference and the one on which Adversaries have relied most heavily, was marginally disclosed to the Patent Office. Therefore, the presumption of validity remains in effect, and the burden of proving invalidity rests on Adversaries. Before beginning the detailed consideration of the asserted grounds of inva-' lidity, it would also be helpful to highlight briefly those three elements of the ’432 process which the Court finds differentiate it from the prior art references. First, it is a process in which thermosetting resins, upon the application of sufficient heat, actually polymerize and cross-link with themselves and with the cellulose fibers. Second, the ’432 patent teaches a true “post-cure” process in which the garment made from a resin-impregnated fabric is baked to cure the resins only after all of the garment-manufacturing, shaping, and pressing steps have been completed. Third, the ’432 process is unlimited as to style, size, design and type of the finished, durable press garment. A. Anticipation — § 102(a) Adversaries’ first attack on the validity of the ’432 patent rests on 35 U.S.C. § 102(a). As prior art, Adversaries have cited the following U. S. patents: Heaton (No. 1,784,285, patented December 9, 1930); Vaala (No. 2,455,198, November 30, 1948); Benger (No. 2,365,931, December 26, 1944); Marsh (No. 2,739,908, March 27, 1956); Thomas (No. 2,829,072, April 1, 1958); Zinamon et al. (No. 2,769,584, November 6, 1956); and Brown (No. 2,817,468, December 24, 1957); and the following publications: page 1029 of the Matthews’ book, Textile Fibers (6th ed., 1954); the John M. Roughan article, “The Pleating and Pleat Retention of Woven and Knitted Fabrics Containing Acrilan, Rayon, Nylon, Acetate and Other Fibers,” in the September, 1954, edition of the Papers of the American Association for Textile Technology, Inc. ; and Chapter 5, “Synthetic Fibers from Condensation Polymers” by W. W. Heckert, of the book, Technology of Synthetic Fibers, edited by Samuel B. McFarlane (1953). The proper test of “anticipation” under § 102(a) is well established in this Circuit: “ ‘Anticipation is strictly a technical defense. Unless all of the same elements are found in exactly the same situation and united in the same way to perform the identical function in a prior pleaded patent, there is no anticipation.’ Stauffer v. Slenderella Systems of California, 254 F.2d 127, 128 (9th Cir. 1957); National Lead Company v. Western Lead Products Company, 324 F.2d 539, 544 (9th Cir. 1963).” Kockum Industries, Inc. v. Salem Equipment, Inc., 467 F.2d 61, 63 n. 1, (9 Cir. 1972), cert. denied, 411 U.S. 964, 93 S.Ct. 2140, 36 L.Ed.2d 68 (1973); Cool-Fin Electronics Corporation v. International Electronic Research Corporation, supra,, 491 F.2d at 661-662; Ceramic Tilers Supply, Inc. v. Tile Council of America, Inc., 378 F.2d 283; 284-285 (9 Cir. 1967); Digital Sensors, Inc. v. Wems, Incorporated, 310 F.Supp. 678, 680 (C.D.Cal.1969); Schlumberger Limited v. Douglas Furniture of California, 275 F.Supp. 73, 75 (C.D.Cal.1957). This statement of the § 102(a) standard clearly indicates that the focus of the section is on individual prior references. See Rawlings v. National Molasses Co., 328 F.Supp. 913, 918 (C.D.Cal.1971); Filon Plastics Corporation v. H. Koch & Sons, 243 F.Supp. 636, 644 (N.D.Cal.1965). Although Adversaries have apparently abandoned a strict anticipation argument based on the references listed above in favor of an obviousness contention, the Court feels that the better course here is to make specific findings on each reference as it relates to validity under § 102(a). Adversaries’ prior art references fall into three categories. The first group consists of the Heaton and Vaala patents. Both teach a method of waterproofing, especially for use in making raincoats, by means of coating —not impregnating — a substrate fabric either with rubber (Heaton) or a film-forming plastic (Vaala) and then heat-curing the coating material to make it waterproof. Neither patent involves impregnation or cross-linking between the coating and the fabric, and neither is aimed at crease resistance, retention, or durability after repeated washings. These two patents lack the critical thermosetting element of the ’432 process, and their fundamental purpose in no way relates to the durable-press goals of ’432. As such neither Heaton nor Vaala constitute an anticipation of the ’432 patent. The second group consists of the Beager patent and the Matthews, Roughan and Heckert publications. These are Adversaries’ thermoplastic references. All involve non-cellulosic synthetic fibers which have thermoplastic qualities; that is, they can be given some degree of crease retention or resistance by the application of heat. However, such fibers tend to flow or “rela