Full opinion text
MEMORANDUM AND OPINION INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW WALINSKI, District Judge: JURISDICTION AND STATEMENT OF CASE This cause came to be tried by the Court, without a jury, between August 7 and August 16, 1973. It is an action for infringement of plaintiff’s Patent Number 3,275,-461, entitled “Refractory”, which was issued on September 27, 1966, to plaintiff’s predecessor, Harbison-Walker Refractories Company, as the assignee of Ben Davies and Peter H. Havranek. Plaintiff owns the patent; no issue of title is involved. The Court has jurisdiction over the parties and the subject matter of this action. Jurisdiction of the subject matter is based on 28 U.S.C., § 1338(a), and the Patent Laws of the United States. Venue is based on 28 U.S.C., § 1400(b), and is proper. The subject matter of the patent in suit is the manufacture of burned magnesite refractory bricks, commonly used as linings for steelmaking vessels known as Basic Oxygen Furnaces. Both parties are manufacturers of such bricks. The patent in suit covers a brick used in the steelmaking industry whose chemical composition yields particularly attractive physical properties. The unusually high hot strength and heat resistance enables processors of steel utilizing the Basic Oxygen Process to run many more molten batches (“heats”) before it becomes necessary to replace the protective linings of the furnaces, an obvious saving in labor, material, and furnace down time. Plaintiff herein seeks to enjoin the manufacture and sale by the defendant of a brick which allegedly infringes upon the patent in suit, and plaintiff further seeks to collect damages for past infringement by defendant. FINDINGS OF FACT 1) The period from the mid-1950’s to the mid-1960’s marked a transition in the manufacturing of steel in that the Basic Oxygen Furnace (BOF) began to replace the open hearth method. (R. 35-41.) 2) BOFs were first introduced in the United States in about 1959. (PT 4, No. 120.) 3) European steelmakers had begun making the transition to BOFs of various types prior to the transition made by steelmakers in the United States. (PT 19, Volumes 1 and 2.) 4) On December 11, 1962, plaintiff learned that brick made of Turkish magnesite, burned and tar impregnated, made by Veitscher Magnesitwerke of Austria (hereinafter Veitsch) had attained 200 “heats” in a Ealdo vessel at Domnarvet, Sweden. Plaintiff was also aware of the fact that the same type brick was reported to have endured more than 800 “heats” in an LD vessel at Linz Donawitz, Germany, earlier that year. Mr. Davies, one of the inventors, was present at that meeting. (PT 152.) 5) Prior to December 20, 1962, plaintiff was aware that a burned, tar impregnated brick, composed of Austrian magnesite, having an MgO content of 87%, had endured 92 “heats” in a Kaldo vessel at Domnarvet, Sweden. (PT 152.) 6) During 1962-1964, Sharon Steel, Sharon, Pennsylvania, was in the process of testing refractories for its two 100-ton Kaldo vessels. (DT BR.) 7) From a letter dated March 27, 1963, which was received by plaintiff on April 1, 1963, plaintiff learned that a Kaldo vessel at Oxelosund, Sweden, which was purportedly the same size as the vessels at Sharon Steel, had undergone 111 “heats” without any patching, using a brick called Anker T. (PT 154.) 8) The same person who informed plaintiff of the results of the Anker T test at Oxelosund, Sweden, indicated in his letter of March 27, 1963, that he had sent a piece of the lining, i. e., a fragment of the brick used in the lining, which had endured the 111 “heats” mentioned above. (PT 154.) 9) From October 16, 1962, to April 21, 1963, plaintiff tested some of its various refractories in the 100-ton Kaldo vessels at Sharon Steel, including its 78-62 refractory brick and its 7-63 refractory brick. (DT BR.) Plaintiff later denominated the 78-62 refractory brick as Oxiline B and the 7-63 refractory brick as Oxibak H. (R. 280.) The refractory brick manufactured under the patent in suit were marketed under the Oxiline B and Oxibak H designations. (R. 51-53.) 10) Plaintiff’s 78-62 and 7-63 refractory bricks were made from a brickmaking compound designated by plaintiff as 31-62 grain. (R. 341, 343, 381.) 11) Originally, the 31-62 grain, the 78-62 refractory brick, and the 7-63 refractory brick were made under the teachings of plaintiff’s U. S. Patent Number 3,141,790. (R. 384; PT 27.) 12) The lining which plaintiff installed on April 21, 1963, at Sharon Steel’s 100-ton Kaldo vessel attained 62 “heats”, the highest number of “heats” attained by any of plaintiff’s products in Sharon’s Kaldo vessels. (DT BR.) 13) Plaintiff’s 78-62 and 7-63 refractory bricks were excellent refractory bricks for BOFs, probably the best high purity magnesite refractory bricks manufactured in the United States in 1962 and 1963, and they had a modulus of rupture at 2300° F of about 1000 to 1500 psi and 150-260 psi at 2600° F. (PT 100; PT 50; PT 59.) 14) The 31-62 grain was manufactured from a magnesium hydrate slurry supplied to plaintiff at Ludington, Michigan, by Dow Chemical Company. (DT HD.) 15) Plaintiff made two products from Dow’s magnesium hydrate, one called 98 grade magnesite and the other called 31-62 grain. The only difference between the two products was that controlled percentages of lime were added to the slurry for the 31-62 grain to maintain a lime/silica (C/S) ratio between 3:1 to 4:1. (DT HD.) 16) Prior to December, 1962, the normal method used by plaintiff to make the lime addition to the magnesium hydrate slurry was that of using lime hydrate. In December, 1962, plaintiff, as an economy measure, began making the lime addition by using hydrated Gibsonburg dolomite rather than the Mississippi hydrated lime. (PT 33, p. 5.) 17) On January 10, 1963, the inventors initiated a study on the effect of adding lime in form of hydrated dolomite instead of lime hydrate in its manufacture of 31-62 grain and the resultant effect upon the physical properties of the 78-62 brick which was made from that grain. (PT 33.) 18) In a laboratory report, dated March 12, 1963, the inventors determined that brick made from the 31-62 grain that had been made with the hydrated dolomite had physical properties which were satisfactory in comparison with the physical properties of 7-63 brick which plaintiff had previously produced with the exception of the fact that the hot strength of the brick made from the new grain at 2300° F was only half that of the 7-63 brick previously made by plaintiff’s research center. (PT 33.) 19) The same report indicated that the boron content of 0.3% B208 was abnormally high for that type of brick, and the report further indicated that the effect of the boron content on hot strength of the brick manufactured from this grain was being investigated. (PT 33.) 20) Although the report indicated that the cause of the weakness of the brick made from the 31-62 grain to which the lime had been added as hydrated dolomite was unknown, the report indicated that the aim of the research program was to find an explanation for the low hot strength of the brick. (PT 33.) 21) There is no document of record prior to May 28, 1963, which indicates that the inventors conducted any experiments to determine the effect of B208 contents which were lower than the normal range of 0.10% to 0.14% which plaintiff had encountered in its products made from the magnesium hydrate it received from Dow Chemical. 22) On April 1-3, 1963, the inventors, Ben Davies and Peter Havranek, attended an engineering meeting in Buffalo, New York, during which time the inventors had a conversation with Doctor William C. Gil-pin of Steetley Company, an English company. (PT 155; R. 446-447, 561-567.) 23) Doctor Gilpin informed the inventors that Steetley had managed to obtain samples of the “Ankor T” (sic) brick made by Veitsch that had been successful in the Kaldo vessel at Domnarvet, Sweden, and Doctor Gilpin further related to them that the distinguishing feature of the brick was its “ ‘ enormous strength at high temperatures and excellent spalling resistance.’ ” (PT 155.) 24) Doctor Gilpin informed them that the Anker T was a burned brick made from Turkish magnesite and that it was tar impregnated. He further stated that he did not know the exact source of the Turkish magnesite, but he indicated that “they (presumably Steetley and himself) have been able to make brick similar to ‘Ankor T’ (sic) using dead burned Grecian magnesite with a similar composition to the Turkish.” (PT 155.) 25) On April 4, 1963, Ben Davies, one of the inventors, called plaintiff’s home office to inquire about the “possible source of magnesite used by the Austrians for use in the manufacture of brick for the Swedish Kaldo vessels” which Doctor Gilpin had informed him of at the meeting in Buffalo, New York. (DT HA; R. 565.) 26) On April 5, 1963, Carl A. Tate, an executive of plaintiff’s organization, by letter, responded that: a. The only magnesite obtainable from Turkey was of a crude variety since there were no dead burning facilities in that country; b. Crude Grecian magnesite samples which had been received by the British Periclase Company were the closest in composition to the Turkish crude magnesite; and c. Samples of the dead burned ■ Grecian magnesite were “in your hands at Garber Research Center.” (PT 156.) 27) By April 12, 1963, the samples. of Grecian dead-burned magnesite which plaintiff had available to it had been chemically analyzed and found to contain less than 0.01% of B208. (DT HA, No. 4.) 28) On April 19, 1963, plaintiff’s research center received a sample of Anker T brick from an employee of Svenska Silikaverken, its agent in Sweden. (PT 154; DT HA, No. 11.) 29) The Anker T fragment received by plaintiff on April 19,1963, was subjected to spectrochemical analysis on or about May 9, 1963. (DT HA, No. 11.) 30) On May 8,1963, Ben Davies and E. P. Weaver indicated that plaintiff has received a used fragment of “Ankor T” (sic) brick, which was a “burned and impregnated magnesite brick made by Veitscher Magnesitwerke, Austria,” and that it had been “obtained after 111 heats in the Oxelosund Kaldo vessel.” The report indicated that the tests conducted on the sample would be limited since it was only a small fragment of a used brick. The data obtained was to be reported under Laboratory No. B 7817. (DT AT.) 31) The spectrochemical analysis of the fragment of the used Anker T brick which was conducted by plaintiff’s laboratory on or about May 9, 1963, indicated a B2O3 content of 0.03%. (DT HA, No. 11.) 32) On or about May 28,1963, Ben Davies and Peter Havranek wrote an Invention Record which purportedly reflected their conception of the invention in its broadest terms. (PT 34.) 33) The Invention Record indicated that its subject and purpose concerned “Magnesite brick with lime silica ratio between 3/1 and 4/1 and controlled B2O3 content that has high hot strength.” (PT 34.) 34) The Invention Record contained the following statement: “Burned magnesite brick with a lime silica ratio between 3 and 4 to 1 have hot strength that varies over a wide range for no apparent reason. We have found that this variation is affected in an important way by the boron oxide content of the brick. A change in boron oxide content from .18% to 0.28% reduced the strength of the brick at 2300° F from the' 1000 to 1200 psi range to the 400 to 500 psi range. Further increases in B2O3 content reduced the strength to 80 psi. Some data is available that suggests that reducing the B2O8 content below 0.05% (sic) magnesite with strength at 2300° F well over 2000 can be produced.” (PT 34.) (Emphasis added.) 35) The first recorded experiment conducted by the inventors in which the B203 content of plaintiff’s 31-62 grain was reduced below its normal value of 0.01%-0.14% exists in this record as a Work Order dated June 3, 1963. (PT 39.) 36) Under plaintiff’s research priority classification system, the highest priority available was Class I. The next highest priority was Class II. Under this system work orders bearing the highest priorities were to be given precedence over lower priority projects. (R. 29-30; 766-767.) 37) A notation at the top of the Work Order that had been initiated on June 3, 1963, indicates that the priority of the project was changed to Class II on June 10, 1963. (PT 39.) 38) An additional notation at the top of the Work Order indicates that the chemical analysis was changed to a Class II + priority July 18, 1963. (PT 39.) 39) The only data available to plaintiff prior to June of 1963 which indicated B2O3 contents of less than 0.05% were the reports of the analysis of the Grecian magnesite, made on April 12,1963, and the analysis of the used sample of Anker T brick., made on May 9, 1963. (DT HA, No. 4A, No. 4B, No. ID 40) The inventor, Ben Davies, was aware of the fact that the used sample of Anker T brick was present at plaintiff’s research center on May 8, 1963. (DT AT.) 41) Plaintiff’s laboratory report, dated March 12, 1963, clearly indicates that the inventors and plaintiff were unaware of the specific cause of the unexpected weakness of the 7-63 refractories which were to be made from the 31-62 grain manufactured at the Ludington Works in December of 1962 using hydrated Gibsonburg dolomite instead of Mississippi hydrated lime. (PT 33.) 42) The study referred to in PT 33 in reference to determining the effect of B203 on hot strength is contained in PT 284. That study, begun on March 6,1963, was an attempt to discover the effect of boron by increasing the B2O3 content. The final report in regard to the project is dated June 20, 1963. (PT 284.) 43) A laboratory report on June 17,1963, contains a synopsis of' six reports. dealing with studies aimed at “improving the density and hot strength of Mix 7-63.” Paragraph 5 of that report indicates that an “addition of small percentages of B2O3 to Mix 7-63 sharply reduced the hot strength.” The synopsis does not contain any report of any experimentation in regard to reducing B2O3 content below the normal range which plaintiff' anticipated from the magnesium hydrate furnished to plaintiff by Dow, i. e., 0.10% to 0.14% on a calcined dead burned basis. (PT 36.) 44) Paragraph 7 of the same report referred to in Finding of Fact No. 43 above contained the following statement: “To obtain improved strength of 7-63, it appears that B203 of 31-62 magnesite must be reduced below 0.03%. Burned dolomite brick made at GRC (Garber Research Center) with B203 content of 0.02% had strength at 2300° F of 2400 psi. Veitsch’s Anker T, which is chemically the same as 7-63, but has only 0.03% B2O3, is reported to have very high hot strength.” (Emphasis added.) 45) Mr. Davies indicated at trial that as of April 1, 1963, Anker T brick was a subject of interest to himself and Mr. Havranek at the time he had the conversations with Doctor Gilpin referred to in Findings of Fact Nos. 22-24 above. 46) Mr. Tate, in response to a telephonic request by Mr. Davies on April 4, 1963, by a letter dated April 5,1963, further advised Mr. Davies that: “(s)amples of dead burned Grecian magnesite made from the crude magnesite from which rock samples were selected are in your hands at Garber Research Center.” (PT 156.) 47) The samples of Grecian magnesite referred to by Mr. Tate were five samples of Grecian magnesite supplied to plaintiff by Scalistiri Enterprises, Greece, sometime in January, 1963. (DT E.) 48) Plaintiff’s laboratory analyzed the samples of Scalistiri Grecian dead burned magnesite by April 12, 1963, and learned from the chemical analysis that the Scalistiri magnesite contained less than 0.01% B203. (DT HA, No. 4a and No. 4b.) 49) The only other chemical analysis, pri- or to May 28, 1963, which revealed a B2O3 content of less than 0.05% was that of the used fragment of Anker T brick received by plaintiff on April 19,1963, and subjected to chemical analysis by plaintiff on May 9, 1963. (DT HA, No. 11.) 50) Mr. Davies admitted during cross-examination that there was no evidence of any work done by himself or plaintiff’s laboratory prior to June of 1963, which involved a magnesite brick with a boron content in the neighborhood of 0.03% except for the analysis which had been performed on the fragment of used Anker T brick. (R. 579-580.) 51) On May 15,1963, the inventors initiated an investigation to determine the effect of a delay in the pressing of a brick-making batch after the time it was mixed. The study related to plaintiff’s 7-63 brick. The final report, dated June 13, 1963, indicated that brick manufactured from a batch to which a 0.2% addition of boric acid was made had a lower modulus of rupture at 2300° F than brick made from the other batches to which no such addition was made. The primary emphasis of the report, however, was upon the effect of delay between the time of mixing and the time of pressing the brick-making batch. (PT 217.) 52) On May 16,1963, the inventors initiated a study to determine the effect grain-sizing had upon plaintiff’s 7-63 brick. The final report, dated June 12, 1963, indicated that of the bricks studied the highest density strength was achieved in brick with a screen analysis in the range specified for the then current production of 7-63 brick. (PT 218.) 53) A laboratory report, dated June 12, 1963, indicated that the hot strength of the 7-63 brick was not increased significantly by raising the burning temperature over the range of 2650° F to 3200° F. The report further indicated that this testing eliminated the “burning step as a potential source of difficulty in manufacturing Mix 7-63 with high hot strength.” (PT 219.) 54) On April 23, 1963, plaintiff initiated an investigation to discover the effect of porosity on modulus of rupture at 2300° F in relationship to the hot strength of the 7-63 brick. The first sentence of the final report, dated June 13, 1963, indicates that the report was part of “an extensive study aimed at determining the causes of variable hot strengths of H-W 7 — 63 brick manufactured at Hammond.” The report further indicated the hot modulus of rupture at 2300° F showed a direct relationship between hot strength and density. The report also contained the following statement: “The density and porosity of Mix A was very similar to that of the Veitscher Anker T brick which had given good service in the Kaldo vessel in Sweden, whereas the physical properties of Mix D are representative of our present production of H-W 7-63.” (PT 285.) 55) On May 20, 1963, plaintiff initiated a Class II study of the effect of high temperature burning on 7-63 brick. The final report, dated June 13, 1963, indicated that the temperature of the burn did not significantly effect the hot strength at 2300° F. The report further indicated that an addition of 0.2% B2O3 adversely affected the hot strength of the brick at 2300° F. (PT 35.) 56) In a study begun on March 6, 1963, plaintiff sought to determine the effect of increasing the B203 content of its 7-63 brick. The final report, dated June 20, 1963, indicated that increase in the B2O3 content adversely affected the hot modulus of rupture of the brick having a dicalcium silicate matrix. (PT 284.) 57) The Court finds that the research projects discussed in Findings of Fact Nos. 51-56 were the culminating phase of the project initiated in January, 1963, to determine the cause of the low hot strength of the brick made from the 31-62 grain to which the hydrated Gibsonburg dolomite had been added. (PT 36.) 58) On June 3,1963, plaintiff initiated its first investigation related to the reduction of the B2O3 content of its 31-62 grain (PT 39.) 59) On June 10, 1963, the priority of the project was raised to Class II, and on July 18, 1963, the priority of the project was further increased to Class II+ . (PT 39.) 60) As originally envisioned, the inventors planned to remove B203 from the Ludington 98 grade hydrate rather than from the 31-62 grain. (PT 39.) 61) In a letter dated in late May or early June of 1963, Mr. John Replogle, the receiver at Garber Research Center, requested two 55-gallon drums of 98% magnesium hydrate from Mr. A1 Pack at the Ludington Works. The notation on the letter indicates that the shipment received was contaminated and tossed away. (PT 39.) 62) Mr. Davies, in his testimony at the trial, confirmed the fact that the material received was contaminated and that the hydrate was not used in the initial phase of the investigation. (R. 769.) 63) He further testified that, since they did not have the hydrate, he instructed Mr. Havranek to add some sodium carbonate to the brick mix to see if that would reduce the B2O3 content. (R. 769.) 64) Page 18 of Mr. Havranek’s notebook indicates that he prepared a batch of 77 pounds of Ludington hydrate on June 3, 1963, but there is no indication that he added any sodium carbonate to it. (Birch Exhibit KD, p. 18.) 65) The notebook further indicates that he made up two other mixes from regular 31-62 grain and to one of those batches he added .5% sodium carbonate and to the other he added 1.0% sodium carbonate. (Birch Exhibit, KD, p. 18.) 66) He further indicated that the “object of sodium carbonate addition is to volatilize B203 as borax during burn. (Birch Exhibit KD, p. 18.) 67) On June 19, 1963, Mr. Havranek prepared three mixes of Ludington 98 grade hydrate to which he added 1.0% of sodium fluoride, sodium chloride or sodium carbonate. Mr. Havranek indicated that the object of the experiment was “to see if these salts will form volatile compounds with B2O3 during burning and thus reduce B2O3 content.” (Birch Exhibit KD, p. 18.) 68) The Ludington 98 grade hydrate which Mr. Havranek used on June 19,1963, was from Lot No. 1120, manufactured on March 31, 1963, by Dow Chemical. This hydrate was from the same lot as that used in the study conducted under Laboratory No. B 7870, which the inventors had had conducted between June 10,1963, and June 13,1963. (PT 81; Birch Exhibit KD, p. 18.) 69) On August 2, 1963, Mr. Havranek received the results of the effect of the addition of sodium carbonate to the 7-63 brick-making batch. (Birch Exhibit KD, p. 13; PT 39.) Mr. Havranek received this analysis approximately 15 days after the priority of the project had been elevated to Class 11+ on July 18, 1963. (PT 39.) 70) There is no indication in PT 39 that any brick were made from the Ludington 98 grade hydrate to which Mr. Havranek had added sodium fluoride, sodium chloride and sodium carbonate in his attempt to determine the most effective method of removing B2O3. 71) The addition of sodium carbonate to the brickmaking batches, on the other hand, reduced the B2O3 content from 0.10% to 0.075% when 0.5% sodium carbonate was added, and from 0.10% to 0.063% when 1.0% sodium carbonate was added. Hot strength, as measured by modulus of rupture at 2300° F, increased approximately 18% as a result of the reduction of the B2O3 content. (PT 39.) 72) The Court concludes that as of August 9,1963, plaintiff had made no magnesite brick from its 98 grade magnesium hydrate which had a B203 content of less than 0.05%. 73) The Court further finds that the recollection of Mr. Davies at trial in regard to sequence of events relating to the experimental work done in PT 39 is not supported by the record. (R. 765-771.) 74) The Court further finds that there is no evidence whatsoever in the record on or prior to May 28, 1963, to support the statements in the “Invention Record” (PT 34) that a B2O3 content below 0.05% would produce a high hot strength magnesite brick other than the data compiled from plaintiff’s studies of the five samples of Scalistiri Grecian magnesite, and its analysis of the used fragment of the Anker T brick. 75) The Court further finds that there is no evidence whatsoever in the record prior to May 28, 1963, that indicates that any magnesite brick with a modulus of rupture at 2300° F in excess of 2000 psi had ever been produced by plaintiff’s laboratory or tested by it. The only information in the record relating to a high purity magnesite brick with a modulus of rupture in excess of 2000 psi prior to May 28, 1963, was the statement made by Doctor Gilpin to the inventors on or about March 31, 1963, or April 1,1963, that he had, by using Grecian magnesite, been able to make brick with a modulus of rupture at 2300° F which approximated the purported 3000 psi modulus of rupture of Anker T. 76) The Court further finds that the inventors, as of May 28, 1963, concluded, as a result of their studies of brick made from the 31-62 grain from the Ludington Works .which had an abnormally high B203 content coupled with a marked decrease in hot strength at 2300° F as measured by modulus of rupture, that the low B2O3 content of Turkish magnesite (0.03%) was responsible for the high hot strength of Anker T bricks. 77) The above conclusion is further supported by a report dated June 17,1963, at a time prior to any experimentation by plaintiff with any brick with a B2O3 content of less than 0.05%, which contained the following statement: “To obtain improved strength of 7-63, it appears that B203 of 31-62 magnesite must be reduced below 0.03%. * * * Veitsch’s Anker T, which is chemically the same as 7-63, but has only 0.03% B208, is reputed to have very high hot strength.” (PT 36.) 78) On May 22, 1963, plaintiff mailed an order to the Bureau Technique, headed by Dimitry Scalistiri, for 200 pounds of Scalistiri’s Mg-967 grade magnesite. Mr. Scalistiri indicated that his firm had forwarded 2V2 kilos of its Mg-1262 magnesite on May 28, 1963, by air freight, and that it had forwarded a similar sample of Mg-1285 magnesite which had a lower silica content but which was sold at a higher price. Mr. Scalistiri also informed plaintiff that the Mg-967 grade magnesite was no longer being produced by his organization. (PT 40.) 79) On June 12, 1963, plaintiff placed an order with Mr. Scalistiri for 1000 pounds of his Mg-1285 grade magnesite. (DT Q.) 80) On June 20, 1963, plaintiff placed an additional order for a 200-pound sample of Mg-1262 magnesite from Mr. Scalistiri. (PT 40.) 81) On August 19, 1963, Mr. Havranek acknowledged receipt of the Scalistiri Grecian magnesite the previous Thursday and began experimenting with the material on that date. On August 22,1963, Mr. Havranek prepared three additional batches of the Scalistiri magnesite. The material used for Mixes B, C, D and E was Scalistiri’s Mg-1285 magnesite. (PT 41.) 82) On September ■ 10, 1963, Mr. Havranek made up an additional mix, Mix F, using Mg-1262 Scalistiri magnesite. (PT 41.) 83) Comparison brick made with plaintiff’s 31-62 low boron grain (having a B203 content of 0.14%) were prepared by Mr. Havranek on August 19, 1963. The B2O3 content of the samples of Grecian magnesite ranged from 0.01% to 0.02%, and it is clear from the record that the brick made from the Scalistiri Grecian magnesite, detailed in the report dated October 16, 1963, were the first brick made by plaintiff having a B2O3 content of less than 0.05%. ' (PT 40.) 84) Brick made from Scalistiri’s Mg-1285 magnesite (Mix B) had a modulus of rupture at 2300° F of 1060 psi. Brick manufactured from plaintiff’s 31-62 grain (Mix A) had a modulus of rupture at 2300° F of 1190 psi. Brick manufactured from Scalistiri’s Mg-1262 magnesite (Mix F) had a modulus of rupture at 2300° F of 1400 psi. (PT 40.) 85) The same report further indicates that the brick manufactured from plaintiff’s 31-62 grain (Mix A, H-W 7-63) failed a load test at 2500° F after 12 minutes under a load of 250 psi. None of the brick made from the two samples of Scalistiri Grecian magnesite failed the hot load test at that temperature. 86) The brick made from plaintiff’s 31-62 grain, covered in Laboratory Report No. B 7866, dated August 9, 1963, to which Mr. Havranek added sodium carbonate to reduce the amount of B203 had a modulus of rupture at 2300° F of 1540 psi, but no tests were conducted on the brick at temperatures in excess of 2300° F. (PT 39.) 87) Prior to September 5,1963, plaintiff’s laboratory received two unused Anker T bricks which had been made by Veitsch for service in the Kaldo vessel in Domnarvet, Sweden. The brick had a B203 content of 0.02% and had a modulus of rupture at 2300° F of 1160 psi and a modulus of rupture at 2500° F of 800 psi. The same report indicates that the inventors concluded that the brick which they had already made from the Mg-1285 Scalistiri magnesite (Mix B) had properties similar to the Anker T received from Domnarvet. The inventors further concluded that the Grecian and Turkish magnesites were similar and, as a result thereof, they further concluded that Veitsch was not using any “special manufacturing technique to make Anker-T.” (PT 42.) 88) From the above it is clear that there is no basis in the record to support Mr. Davies’ statements at the trial that the Scalistiri magnesite was ordered as a result of experiments involving low B2O3 magnesites in the range of 0.05%. (R. 615, 620 and 755.) 89) The Court concludes that the samples of Scalistiri Grecian magnesite were ordered by plaintiff for the following reasons: a. The inventors’ knowledge that the increased B2O3 content of plaintiff’s 31-62 grain manufactured in December of 1962 reduced its hot strength as measured by modulus of rupture at 2300° F; b. The knowledge of plaintiff and the inventors of the reputed hot strength of Anker T brick being used in Europe; c. The information revealed to the inventors by Doctor Gilpin in regard to making a brick comparable to the Anker T brick by using Grecian magnesite; d. The low B203 analysis of the used fragment of the Anker T brick which plaintiff had received from its Swedish agent; and e. The low B203 analysis of the five samples of Scalistiri magnesite which plaintiff had received in January of 1963. 90) Mr. Davies testified at trial that the Invention Record (PT 34), dated May 28, 1963, was the embodiment of what later became designated as Claim 10 of the patent in suit. (R. 237-238.) 91) Mr. Davies further testified (R. 236-237) that his concept of Claim 10 came to him sometime in February or March of 1963. Mr. Davies relied on the information contained in PT 33 as the basis for the statement contained in the Invention Record, but the Court concludes that Mr. Davies’ reliance is misplaced in view of the fact that nothing in the document relates to B2O8 content of less than 0.05%. Furthermore, according to the Invention Record, the concept was limited to systems with a lime to silica ratio between 3:1 and 4:1. The declaration of the critical limitation of 0.05% B2O8 lacked any experimental support, and the Court finds that it was merely an extrapolation of the results obtained by plaintiff’s laboratory from the analysis of the fragment of Anker T brick having a B2O8 content of 0.03% and the analyses of the B2O3 content of the five samples of Grecian magnesite which had been available to plaintiff since January of 1963, and which were analyzed as a direct result of the inventors’ conversations with Doctor Gilpin. The inventors had merely concluded that the reason for the hot strength of the Anker T brick and of the brick made from Grecian magnesite by Doctor Gilpin was the low B2O8 content. The inventors, however, reached this conclusion in regard to the effect of the B2O8 content as a result of their own insight since it is clear that Doctor Gilpin was unaware of any significance to be attributed to the B$s content of the materials which he had discussed with the inventors on March 31st or April 1st of 1963. 92) There is no evidence in the record to indicate that any Anker T brick either had or has ever been manufactured in the United States by Veitsch, and defendant admitted in Request for Admission No. 9 that it was unaware of “any evidence indicating than an Anker T brick has ever been made in the United States by Veitsch.” (PT 6.) 93) Aside from the experimental brick made by plaintiff from the two shipments of Scalistiri Grecian magnesite, there is no evidence in the record which indicates that a brick composed solely from Scalistiri magnesite was commercially manufactured by anyone in the United States prior to about August of 1966. (PT 6, No. 9(b).) 94) In late May and early June of 1963, at a time prior to any of plaintiff’s experiments which related to the reduction in B208 content below the 0.10% to 0.14% which plaintiff normally encountered in its 31-62 grain that was manufactured from its 98 grade magnesium hydrate which it received from Dow Chemical (See PT 39, Work Order dated June 3, 1963), plaintiff began a search for a low B2O8 source material. Its first step in that direction was to place an order for a 200-pound sample of Scalistiri’s Mg-967 grade magnesite on May 22, 1963. (PT 40.) 95) A document, dated June 11, 1963, bearing the caption “H-W Mg (OH)2,” was introduced into evidence at trial to indicate one of the first steps by plaintiff in the attempt to obtain a low boron slurry from Dow Chemical. (R. 363.) The Court makes the following conclusion in regard to that document: a. The first page of the document relates to a conversation which the author had with Mr. Earl Leatham (spelled “Lethem” in the document), most probably by telephone on the date indicated, relating to problems which plaintiff was having with its refractories for BOF. furnaces, i. e., the 78-62 and 7-63 refractories; b. Mr. Leatham informed the author that plaintiff had previously made an outstanding product but that that product had lost its outstanding property; c. Mr. Leatham informed the author of the results of some of plaintiff’s research in regard to the B2O8 content of the calcined Dow material made by Dow from March 31, 1963, through May 11, 1963; d. With the exception of the analysis shown for April 26, 1963, the four remaining analyses correspond to those contained in a Laboratory Report dated June 13, 1963, the Work Order for which was issued on June 10, 1963, and that study related to plaintiff’s effort to determine the source of the excess B2O8 content of the 31-62 grain which had been produced at Ludinjgton in December of 1962 (PT 81); e. Mr. Leatham indicated .that plaintiff was interested in obtaining a 200-. pound sample of magnesium hydrate with a low B2O3 content; f. Mr. Leatham indicated to the author that plaintiff was not sure that B203 was the cause of its problem; g. The author further indicated that Dow had no ready source of low B2O3 magnesium hydrate, but he indicated that it would take two days to make 200 pounds thereof at a cost of approximately $1500. (PT 203.) 96) The Court refuses to draw any inference from the testimony adduced at trial from Mr. Davies in regard to the B2O3 content of Dow’s magnesium hydrate, as reflected in PT 203, that the information therein related to any studies conducted by plaintiff for any purpose other than to determine the source of the abnormal 0.30% B2O3 content of its 31-62 grain that had been manufactured in December of 1962. 97) There is no testimony or document in the record to indicate that Dow Chemical ever provided the 200-pound sample of its magnesium hydrate which was discussed in PT 203, even though it would have only taken two days to prepare such a sample at a cost of $1500. 98) Additional efforts by plaintiff to find a raw material of low B2O3 content included the following: a. Israeli Magnesite 1. At a time subsequent to August 2, 1963, when Mr. Havranek received the reports of the analysis reported under B 7866 (Birch Exhibit KD, p. 13), Mr. Havranek, under a study designated B 7910, began a study of Israeli magnesite. His report indicated that at the time he began the experiment the only “successful method of increasing hot strength to date” was by increasing the lime/silica ratio to greater than 3:1. The aim of the study was to produce “ + 99% MgO brick from Israeli magnesite with special emphasis on hot strength.” Using the techniques detailed under B 7866 Mr. Havranek added 1% sodium carbonate to the Israeli hydrate prior to the time it was dobied at 8000 psi and caustic burned at 1800° F. The material then was to be redobied and burned at 3140° F, and Mr. Havranek anticipated that the boron should “volatilize as borax in either one of the burns.” Mr. Havranek indicated that the boron content was checked after the caustic burning and it was “still all there.” After further treatment and pressing, the material, when burned at 3140° F, lost most of its B203 content. Burned brick made from this material had a modulus of rupture at 2300° F that was about four times that of plaintiff’s Harklase brick, and Mr. Havranek noted that the “most significant improvement in this brick over lower porosity harklase was the increase in hot strength.” Mr. Havranek further indicated that “(s)ome Israeli caustic MgO were sent to Ludington for briquetting.” (Birch Exhibit KD, p. 17.) (Emphasis added.) 2. Mr. Havranek requested the briquetting of the high purity Israeli magnesite on September 23, 1963, in a letter to Mr. Good at the Ludington Works. By a letter dated September 26, 1963, Mr. Good indicated that Mr. Havranek’s timing was perfect since the plant’s shop kiln would be down for repairs for the next few weeks. By a letter dated October 18, 1963, Mr. Havranek indicated that he was forwarding two drums containing approximately 500 pounds of caustic burned Israeli magnesite for briquetting. By a letter dated November 15,1963, Mr. Good indicated that he had finally managed to briquette the material which Mr. Havranek had sent to him. The laboratory Report dated March 26, 1964, indicated that the burned brick made from this briquetted material had a hot modulus of rupture at 2300° F of 1550 psi and a modulus of rupture at 2600° F of 740 psi. Mr. Havranek further indicated that this represented “a tenfold increase in hot strength compared with Harklase which is made from 98 grade magnesite.” (PT 138.) b. Alcan Q-20 1. The inventors began experimenting with Alcan Q-20 magnesite, a low B20s material (0.02%), in early November of 1963. (PT 44.) 2. Plaintiff’s Laboratory Report, dated January 7, 1964, indicated that brick made with Alcan Q-20 magnesite were superior to the H-W 7-63 brick, although the Alcan Q-20 magnesite contained a high amount of iron oxide (1.2%). Mr. Havranek considered this result surprising in view of the fact that a study conducted under Laboratory No. B 7728 indicated that an addition of iron oxide sharply reduced hot strength. The report further indicated that “In lime/silica ratio and boron content (the Alcan Q-20) is similar to Anker-T made by Veitscher for Kaldo vessels.” (The lime/silica ratio of the Alcan Q-20 magnesite was 2.3:1.) The report also contained the following statement: “Even with Grecian magnesite of equivalent density in Study B 7922 (PT 40) we were unable to equal these strength properties.” The report further indicated that an attempt would be made to duplicate the Alcan Q-20 magnesite from Dow hydrate under Laboratory No. B 7989. Despite the apparent success of the brick at 2300° F and the obvious optimism contained in the laboratory report, a notation by Mr. Davies on a letter dated March 2, 1964, indicated that the brick were not satisfactory for the Dravo tests for the Kaldo vessel at Sharon Steel. The fact that the brick failed a load test of 250 psi at 2540° F on or about March 6, 1964, undoubtedly prompted Mr. Davies’ notation (PT 45, p. 6). (PT 43.) 3. Prior to April 1,1964, the inventors conducted further experiments with Al-can Q-20 magnesite. The study, reported under Laboratory No. B 8006, was a three-phase project. The first phase involved a study of the effects of the lime/silica ratio over a range of 1:1 to 3.2:1. The second phase was a study of the effect of an increasing B202 content in a system with a relatively constant lime/silica ratio. The first two phases were conducted using Alcan Q-20 magnesium hydrate. The final phase merely involved the preparation of brick from regular Alcan Q-20 magnesite which had been burned in a rotary kiln at Canadian Refractories Limited. At 2300° F all the brick prepared from the Alcan Q-20 had a modulus of rupture at 2300° F in excess of 1000 psi with the exception of the brick containing 0.15% B203, which had a modulus of rupture of 470 psi at 2300° F. However, at 2600° F, none of the brick made from the Alcan Q-20 had a modulus of rupture in excess of 440 psi. The report, however, did indicate the significance of low B203 content. (PT 47.) 4. A study begun on March 11, 1964, the aim of which was “to reduce boron content of synthetic magnesites by dilution with low-boron natural magnesites,” included the use of Alcan Q-20 magnesite in combination with plaintiff’s 98 grade magnesite, as well as additional mixtures using Chewelah clinker, Grecian magnesite, and plaintiff’s 98 grade magnesite in varying percentages. The results confirmed previous research in regard to the adverse effect of increasing B2O3 contents, and they indicated an interrelationship in the lime/silica ratio, R2O3 content and B2O3 content. (PT 50.) e. Low B¿)s Magnesite Made from Dow’s Hydrate 1. PT 203, dated June 11, 1963, is the earliest document reflecting plaintiff’s expressing an interest in a low B2O3 magnesium hydrate from Dow. 2. The inventors first reduced the B2O3 content of plaintiff’s 31-62 grain (made from the Dow magnesium hydrate) from the normal range of 0.10% — 0.14% to 0.075% and 0.63% by adding .5% and 1% respectively of sodium carbonate to the 7-63 brickmaking batch sometime in July, 1963. (PT 39; Birch Exhibit KD, pp. 13, 18.) 3. PT 205 indicates that plaintiff next approached Dow on December 4, 1963, in regard to obtaining a low B2O3 magnesium hydrate containing less than 0.07% B2 ,03 on a dead burned basis. 4. PT 206 indicates that plaintiff next contacted Dow in regard to a reduction of the B2O3 content of its magnesium hydrate on January 15, 1964. At that time plaintiff expressed an interest in receiving material from Dow which contained no more than 0.02% B2O3 on a dead burned basis. 5. PT 208 indicates that on April 8, 1964, representatives of plaintiff called upon representatives of Dow, and they were informed that Dow had completed an investigation into methods of reducing the B203 content of their product approximately 50% from 0.12% — 0.14% to between 0.06% — 0.08%. The document further indicates that plaintiff again contacted Dow on or about April 13, 1964, to emphasize their desire to have a product with a B2O3 content in the range of 0.02% — 0.05%. 6. PT 51 indicates that between March 31 and July 27,1964, the inventors successfully reduced the B2O3 content of various grades of magnesite which it manufactured from the Dow magnesium hydrate. It is clear from the report that Dow did not manufacture the low boron material used in the study. 7. PT 52 indicates that sometime between June 23 and August 24, 1964, the inventors prepared brick at Garber Research Center using low boron 31-62 grain and 98 grade magnesite grains which ranged from 0.041%o — 0.09% B208. It is clear from the report that Dow did not manufacture the low boron material. 8. PT 209, dated June 30, 1964, indicates that Dow was prepared to make a low B203 product for plaintiff in the near future. 9. PT 55, dated September 8, 1964, indicates that approximately 600 tons of special low boron 98 grade magnesite was produced by plaintiff at Ludington from the Dow magnesium hydrate. The B2O3 content of this dead burned magnesite was 0.048%. The hot strength as measured by modulus of rupture at both 2300° F and 2600° F of plaintiff’s Harklase brick made from this low boron magnesite increased tremendously. 10. PT 57, dated November 19, 1964, indicates that a portion of the 600 tons of the low boron 98 grade magnesite produced at Ludington was converted to 31-62 grain. H-W 7-63 brick made from this low boron 31-62 A grain was not superior to similar, brick made from the regular 31-62 grain. Nonetheless, plaintiff’s Oxiline B brick (plaintiff’s 78-62 refractory), which were made from this low boron 31-62 A grain at plaintiff’s Windham Works, were installed in the BOF at National Steel, Great Lakes, and the lining set a new record of 528 “heats” for that shop. 99) As Mr. Davies stated at trial, plaintiff was interested in a low boron magnesium hydrate from Dow because there was no satisfactory natural magnesite available in this country. (R. 750-751.) 100) Other factors considered important by plaintiff in selecting raw material for its magnesite brick were: a. The chemical composition and uniformity of the product; b. Assurance of adequate continuing supply; and c. The price. (R. 73-74.) 101) The initial application covering matters which ultimately resulted in the patent in suit (Serial No. 349,736), filed March 5, 1964, related primarily to methods of removing or reducing the B2O3 content of dead burned magnesia to a level below 0.05%. Though that application was later abandoned, it contained a recitation which reads squarely upon the statements contained in the Invention Record. The recitation included the statement that: “The brick had a modulus of rupture at 2300° F which was in excess of 2000 psi.” (DT EP, pp. 4-5.) As indicated in Finding of Fact No. 75, there is no evidence in the record prior to May 28, 1963, which indicates that any magnesite brick with a modulus of rupture at 2300° F in excess of 2000 pounds had ever been produced or tested in plaintiff’s laboratory. The Court finds that that recitation was false. 102) The initial application recited a method of removing boron from commercial dead burned magnesite grain by making an addition of sodium carbonate to the brick-making batch. (DT EP, p. 2, lines 17-29; p. 3, lines 1 & 2.) 103) The method, mentioned immediately above, was carried forward into the patent in suit as Example 18. (PT 1, column 7, lines 25-40.) 104) The Court has been unable to find any document dated prior to March 5, 1964, the filing date of the initial application, which illustrates a reduction in the B2OS content of commercial dead burned magnesite from 0.14% to 0.03%. a. PT 39, dated August 9, 1963, and bearing the Laboratory No. B 7866, contains the results of the inventors’ first attempt to remove B2O8 from commercial dead burned magnesite, but the report indicates that the B2O8 content was reduced from 0.10% to 0.063%, as opposed to the recitation in the first application and the patent indicating a reduction from 0.14% to 0.03% B2O8. Additionally, the burn temperature indicated in PT 39 was 2900° F as compared to the temperature of 3050° F recited in the application and patent. b. PT 138, which covers work done in a period from sometime in August or September of 1963 until March 26, 1964, indicates that the inventors successfully reduced the B2O8 content of Israeli magnesite from 0.15% to less than 0.01% by making an addition of 1% sodium carbonate to the magnesite and burning it at a temperature of 3140° F. However, the Israeli magnesite was 99.6% MgO as compared to the recitation in the initial application of 96% MgO. , c. Page 17 of Mr. Havranek’s notebook (Birch Exhibit KD) refers to the study conducted under Laboratory No. B 7866 (PT 39) as the basis for the technique of adding sodium carbonate to reduce the B2O3 content. d. PT 51, which covers the period from March 31 to July 27, 1964, also makes reference to the same report as the basis for the same procedure. Aside from the fact that none of the chemical analyses of the mixes detailed in PT 51 correspond to the analyses contained in the initial application and the patent in terms of their chemical composition, the date of the Work Order, March 31, 1964, precludes this study from being the source of the recitation in the initial application. 105) The Court further finds that PT 39 was the study which provided the data upon which the recitation in the initial application, which evolved into Example 18 of the patent in suit (as indicated in Finding of Fact No. 103 above) was predicated. As such, the information contained in the initial application is false and misleading for the following reasons: a. The B2O3 content of the brick was not reduced below 0.03% (which would have been below the critical figure of 0.05%), but, at best, it was reduced to 0.063%. b. Research conducted by the inventors subsequent to the filing of the initial application but prior to the filing of the application which resulted in the patent in suit indicated that the technique was unsuccessful in removing the B2O3 from plaintiff’s 31-62 grain except in small scale studies. Plaintiff’s 31-62 grain clearly had a chemical composition falling within the chemical limitations detailed in Example 18. (PT 51.) 106) The initial application also recited a method of reducing B203 content by making additions of sodium chloride, sodium fluoride and sodium carbonate to magnesium hydrate. (DT EP, p. 3, lines 3-14.) 107) A comparison of the chemical data obtained in the above recitation and that contained on page 3 of PT 39 indicates that PT 39 served as the basis for the recitation. (The Court also relies upon the statement contained under the date 6/19/63 on page 18 of Birch Exhibit KD, as well as plaintiff’s answer to Basic’s Interrogatory No. 102.) 108) Example 19 of the patent in suit corresponds to the above recitation in the initial application except for the statement contained therein that the additions were made to “dead burned magnesite” as opposed to the earlier recitation which indicated that the additions were made to batches of “magnesium hydrate.” (PT 1, column 7, lines 41-52.) 109) Although there are three documents in this case which indicate an addition of sodium carbonate to reduce the B203 content of dead burned magnesite (PT 39, PT 138, and PT 51), there is no evidence whatsoever which indicates that either sodium chloride or sodium fluoride were added to dead burned magnesite to reduce the B2O3 content. The Court therefore concludes that the representation made by Example 19 of the patent was false. 110) The source of the data for TABLE IV (Example I) of the Third Application (DT ER, p. 8) was Mix B in PT 216. TABLE IV (Example I) of the Third Application became Example 1 of the patent in suit, and the Court finds that the data set forth in Example 1 of the patent in suit is clearly supported by the data in the record. 111) The source of the data for TABLE V (Example II) of the Third Application (DT ER, pp. 8-9) was Mix G of PT 216. TABLE V (Example II) of the Third Application became Example 2 of the patent in suit, and the Court finds that the data set forth in Example 2 of the patent in suit is supported by the data in the record. 112) The Court, however, further finds that the data contained in Example 2 of the patent in misleading in that the modulus of rupture at 2600° F, which is not reported in either the Third Application or the patent itself, was 125 psi as reported in PT 216. The Court finds the example misleading because of the representation made in column 7, lines 7-22 of the patent in suit, that brick made within the teachings of the patent have a “good” modulus of rupture as defined implicitly by Table 4 of the patent as being 210 psi at the lowest and the representation made by Mr. William C. Nealon at page 35 of the Fourth Application (PT 2). 113) The source of the data for Example III of TABLE VI of the Third Application (DT ER, p. 9) was Mix G of PT 47. Example III of TABLE VI became Example 3 of the patent in suit, and the Court finds that the data set forth in Example 3 of the patent in suit is clearly supported by the data in the record. 114) The source of the data for Example IV of TABLE VI of the Third Application (DT ER, p. 9) was Mix C2 of PT 61. Example IV of TABLE VI became Example 4 of the patent in suit, and the Court finds that the data set forth in Example 4 of the patent in suit is not supported by the record. 115) The following table, TABLE A, compares the analyses set forth in Mix C2 of PT 61, Example IV of the Third Application and Example 4 of the patent in suit. 116) It is clear from the above comparison that the lime (CaO) content indicated in Example IV of the Second Application and Example 4 of the patent in suit is misstated by 0.5%. This misstatement is responsible for the reduction of the lime/silica (C/S) ratio from 2.9:1 to 2.5:1. Additionally, and more importantly, it reduces the quantity of B20s permitted by the 1C + St formula 100% from 0.55% to 0.47%. The brick made from Mix C2 of PT 61 contains a B203 content that is 0.01% in excess of that permitted by the formula, but it nonetheless had a modulus of rupture at 2300° F of 680 psi. Example 4 of the patent in suit indicates that its B203 content is 0.09% in excess of that permitted by the formula, and in addition, represents its modulus of rupture at 2300° F as being 600 psi. The Court therefore concludes that the data contained in Example 4 of the patent in suit is false and misleading. 117) Example V and Example VI of the Third Application, 4)age 10, lines 2-10, became respectively Example 5 and Example 6 of the patent in suit. Plaintiff was unable to locate any documents to support either of the examples. (DT HB, No. 88 and No. 89.) In addition to that, however, Example 6 may or may not fit within the scope of the claims of the patent in suit. It does not fall within the scope of Claims 1, 3, 4, 6, 7, 8, 9, or 15 because the CaO to SÍO2 weight ratio being in excess of 3:1. It does not fall within the scope of Claims 2 or 5 because those claims require more than 1% SÍO2 and Example 6 contains only 1% SÍO2. It does not fall within the scope of Claim 10 because its B2O8 content of 0.15% is in excess of the “essentially less than 0.05% B2O8” requirement of Claim 10. It falls within the scope of Claims 11-14 if, but only if, one interprets “greater than about 1%” SÍO2 to include 1%. Even assuming that 1% is “greater than about 1%”, the problem that still exists is that the chemical composition of Example 6, if practiced under Claim 14 of the patent in suit, clearly falls within the scope of Claims 5 and 6 of plaintiff’s U. S. Patent No. 3,141,790 if one is consistent in interpreting the meaning of the word “about” as used in the “greater than” and “no more than” context in which it appears in those claims. 118) The Second Application, Serial No. 393,207, filed on July 16, 1964, related primarily to magnesite refractory brick suitable for use in basic oxygen furnaces. The application was limited to refractories containing “at least 95% MgO” in which the lime/silica ratio was essentially less than 3:1. (DT EQ, pp. 1-7.) 119) TABLE I on page 8 of the Second Application sets forth the results of tests on five different refractories having varying chemical compositions. TABLE I of the Second Application was carried forward into the patent in suit and became Table 2 !in the patent. All the data contained in TABLE I came from PT 51. The following ' table sets forth the data compiled from all three exhibits and the footnotes thereto , point out any discrepancies. From TABLE , B contained on page 40 of this Opinion, it is clear that at least six “mistakes” occurred :in transcribing the data from PT 51 to Table 2 of the patent in suit. While carelessness may explain five of the “mistakes” noted in the footnotes to TABLE B, and possibly excuse them, the representation that the brick of Example 11 of the patent in suit did not fail the load test at 2700° F, whereas, in fact, it failed after one hour, is downright misleading. See Table B on next page. 120) TABLE II, on page 9 of the Second Application, sets forth the same data contained in Table 3 in column 6 of the patent. PT 51 is also the source for the data contained in TABLE II of the Second Application. The following table, TABLE C, combines the data from the three documents and the footnotes point out the discrepancies. 121) The data listed in PT 51 as Typical Data for H-W C Grade magnesite is probably inaccurate. The Umfrid deposition, PT 14, at pages 53 and 54 gives a range of from .16% to .22% B203 for the C Grade magnesite, a product made at Cape May. PT 203 contains the figures .16% to 0.17% B2O3 as representative of Cape May magnesite, and Mr. Davies testified at trial that these figures corresponded to his recollection of the B2O3 contents of the Cape May material during that period of time (R. 366). PT 162 gives a figure of 0.1% B203 content for Cape May D Grade magnesite. PT 216 gives a range from 0.16% to 0.19% B203 for brick made from magnesite manufactured at Cape May. DT FV indicates a B203 content of 0.18% for 42-64 grain made at Garber Research Center from Cape May magnesium hydrate. DT FT indicates a B2 0s content of 0.17% for brick manufactured from 42-64 grain made at Cape May. PT 281, dated July 30, 1964, indicates that two shipments of 42-64 grain made from the Cape May magnesium hydrate contained a B2O3 content of about 0.22%. The handwritten chemical analysis, bearing the date 7/2/64, indicated a B203 content of 0.21% for Mix A whereas the typed data for Mix A indicated a B2O3 content of 0.23%. The typed data for Mix A was carried forward to column 4 of the analyses shown on page 3 of PT 56. 122) The Court concludes that the data contained in Example 12 of the patent in suit is misleading for the following reasons: a. The Second Application and the patent in suit both contained a recitation ■ which indicated that a specific batch of magnesite having the chemical composi-. tion set forth in Example 12 was actually ' prepared and tested by the inventors.! PT 51, however, clearly indicates that Typical Data for H-W C Grade magnesite, not an actual test sample, were included in the report; b. The Typical Data included in PT 51 indicated a maximum B2O3 content of 0.15%, whereas Example 12 showed a B2O3 content of 0.2%; c. The bulk of the exhibits discussed in Finding of Fact No. 121, above, indicate that magnesite made at Cape May had a B2O3 content of less than 0.2%, primarily in the range of 0.16% to 0.19%, although PT 281, PT 56, and Mr. Umfrid, indicated that it ranged as high as 0.22% and PT 162 indicated that it ranged as low as 0.1%; d. Example 12 of the patent in suit contains the formula (C + S) as a means 100% of defining the maximum B203 content. Applying that formula to the composition of Example 12 results in a determination of the maximum B203 content as 0.185%. The stated B203 content of 0.2% would lead one to infer that the B203 content was responsible for the low modulus of rupture at both 2300° F and 2600° F. That inference, however, is not supported by an assumed B?0S content of 0.2% when in fact there was no measurement of the actual B203 content, and additional data concerning plaintiff’s C Grade magnesite indicated that the B203 content thereof could easily have been lower than the maximum permissible B203 content as defined by the formula as being 0.185%. 123) On the basis of the Court’s TABLE C, supra, the Court finds that the data set forth in Example 13 of the patent in suit is supported by the record. 124) Example IV of the Second Application, at page 11, lines 7-20, was carried forward and became Table 4 of the patent in suit (column 7, lines 7-19). PT 52 was the source document for three of the four examples contained therein. The following chart, TABLE D, combines the data from these three documents and any discrepancies are pointed out by the footnotes there-m‘ See Table D on next page. 125) On the basis of the Court’s TABLE D, supra, the Court finds that the data set forth in Examples 14, 15, and 16 of the patent in suit are supported by the record. 126) The following table, TABLE E, is a comparison of the analyses which plaintiff made of samples of Anker T to the analysis set forth in Example 17 of the patent. The analysis of Anker T which is set forth in PT 52 is not conta