Full opinion text
MEMORANDUM OPINION AND ORDER LAMBROS, District Judge. The consolidated cases, C 69-461 and C 74-121, sound in suit for royalties under a licensing agreement and patent infringement. The issues are centered upon two patents owned by plaintiff — U. S. Patent No. 3,209,228, in the name of Alex F. Gawron (“Gawron Patent”), titled “System For Controlling Electric Motors in Power Tools and The Like;” and U. S. Patent No. 3,260,-827 in the name of Carl J. Frenzel (“Frenzel Patent”), titled “Motor Reversing Mechanism For Electrically Powered Portable Tools.” These consolidated cases were referred to the Honorable Jack B. Streepy, Magistrate for the United States District Court, Northern District of Ohio, Eastern Division. 28 U.S.C. § 636(b)(2). Magistrate Streepy was authorized by this Court, with the written permission of the parties, to try these cases as a special master under the provisions of Rule 53 of the Federal Rules of Civil Procedure. The Magistrate conducted a twenty-one day trial, which developed over 3600 pages of testimony and over 400 exhibits. He considered proposed findings of fact and conclusions of law from both parties and extensive posttrial memoranda. The result was a well-reasoned, concise and clear Report and Recommended Decision, filed with the Court on March 9, 1979. On March 19, 1979, defendants filed “Objections of Defendants to the Magistrate’s Report Filed on March 9, 1979” with this Court. This document is a shocking display of groundless ad hominem attacks on the Magistrate, crude solecisms, and incoherent analysis and argument. The memorandum alleges a “pattern of prejudiced rationalization” in the actions of the Magistrate, and refers to his actions in preparing the report as “chicanery.” These attacks are not supported by any evidence other than the fact that the Magistrate, in reaching his conclusion, decided certain legal issues contrary to the wishes of defendant. This Court readily acknowledges defense counsel’s expertise in the field of patent law and continues in its respect for counsel’s legal abilities and reputation in the legal community; therefore, the Court can only conclude that counsel was driven to this excess by the length, difficulty and unfavorable result of the hearing — and this is understandable. However, the Magistrate’s reputation is questioned by these attacks, and the allegations are certainly undeserved. Therefore, this Court directs that all passages in defendant’s memoranda that make personal attack upon the Magistrate beyond the parameters of legal argument and analysis be stricken. Federal Rules of Civil Procedure, Rules 7(b)(2) and 11. I. Rule 53(e)(2) provides that “the court-shall accept the master’s findings of fact unless clearly erroneous.” Professors Moore and Lucas explain the purpose of the rule in this way: The mandate of Rule 53(e)(2), as applied in the typical case where the master who makes the findings of fact is the one who heard the parties and the testimony is based on hard common sense: the master, as a judicial officer, must as a general proposition be trusted as to factual matters, particularly those involving oral and disputed testimony. [5A Moore’s Federal Practice ¶ 53.12[4] (1979), footnotes omitted.] Thus, it is inappropriate for this Court to retry the case — to reexamine all of the evidence and reweigh it — unless defendant can make an initial showing that the Magistrate made a clearly erroneous appraisal of the weight of the evidence. Defendant’s objections to the findings of fact, however, do not go to the heart of the clearly erroneous appraisal standard. Defendant’s initial objections are to those findings relating to the nonobviousness of the Gawron patent in the light of the state of prior art in 1962. The. Magistrate found that the use of human feedback in a variable-speed trigger tool to obtain a constant rotational speed was not obvious to one skilled in the art at the time of the patent’s approval. [Finding 8(c), Magistrate’s Report (hereafter, “MR”).] The Magistrate reached this conclusion by carefully comparing all prior related patents with the Gawron patent and by considering the testimony of various experts, all of which resulted in substantial evidence in support of a finding of nonobviousness. Defendant may disagree with the weight given to various evidence and testimony by the Magistrate, but this is not cause for a finding of “clearly erroneous” by this Court. Defendant seeks to have the Magistrate’s findings specifically state all of the evidence presented by defendant in this matter, but this is not the purpose of the Findings of Fact. The Magistrate is granted authority to weigh and sift the evidence and then to distill the evidence into a summary of the material facts upon which conclusions of law may be based. So long as there is substantial evidence on the record to support this distillation, this Court may not discard it. The Court has carefully gone over the record and finds substantial support for the Findings made by the Magistrate. The same problem is present in defendant’s remaining objections to the Findings of Fact. Defendant disputes the weight given by the Magistrate to the various documents, evidence and testimony offered, and complains that the Magistrate failed to include all the evidence presented by defendant into the Findings of Fact. As explained above, these arguments are not appropriate to this Court’s decision to accept and adopt the Findings of the Magistrate, vel non. The Court has carefully considered the record, and finds that there is substantial support therein for the Findings of the Magistrate. II. A different standard of review applies to the Magistrate’s Conclusions of Law. These have no effect except to the extent that they are correct propositions of law. 5A Moore’s Federal Practice ¶ 53.12[5] (1979). Defendant’s objection to the Conclusions of Law are based upon the Magistrate’s analysis of Precision Investment Manufacturing Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 65 S.Ct. 993, 89 L.Ed. 1381 (1945), which case deals with the defense of fraud on the patent office in a patent infringement action. Defendants argue that several examples of fraud by plaintiff can be found in the circumstances of the Gawron patent application. Most of these examples have a common nexus — the failure of plaintiff to disclose defendant’s device to the patent office when seeking the Gawron patent. In early March of 1965, both plaintiff and defendant had patent applications for the Gawron-type device pending. The patent examiner had twice rejected plaintiff’s patent application, and the parties decided to enter into an agreement in furtherance of their mutual interests respecting the pending patents. [MR, p. 19]. Negotiations culminated in an agreement dated March 9, 1965, between Skil and Lucerne that provided that parties would disclose evidence relating to patent rights to each other. The parties would then decide if they could agree on the import of the evidence; failing agreement, parties would ask the Patent Office to set up an interference to determine patent rights. [MR, pp. 19-20]. They disclosed their respective patent applications to each other on the day the agreement was concluded. On March 16, 1965, plaintiff demonstrated its device to the patent examiner by operating a variable-speed-control drill that incorporated plaintiff’s claimed invention. The invention was embodied in a Lucerne speed control device that plaintiff had purchased from defendant Lucerne. Apparently, the examiner was not informed that Lucerne had made the device for Skil. Six days later, plaintiff again amended its application and, this time, the application was allowed by the examiner. On May 20, 1965, Mr. Gawron executed a supplemental oath, stating in part that “. . .he does not know and does not believe that the same [Gawron invention] was even known or used before his invention thereof.” [MR, pp. 20-21], The Magistrate began his thorough analysis of these facts by pointing out that the Sixth Circuit deals with the fraud defense by requiring that the party asserting the defense prove “specific intent”, that is, intent to defraud. Kearney & Trecker Corp. v. Cincinnati Milacron, Inc., 562 F.2d 365 (6th Cir. 1977); Kolene Corporation v. Motor City Metal Treating Inc., 440 F.2d 77 (6th Cir. 1971), cert. den., 404 U.S. 886, 92 S.Ct. 203, 30 L.Ed.2d 169. Further, the specific intent must be associated with a material matter. Schnadig Corporation v. Gaines Manufacturing Co., Inc., 494 F.2d 383 (6th Cir. 1974). Defendant admits that this statement of the law is correct [see footnote 3, supra], and also does not dispute or object to the Magistrate’s Findings of Fact on this issue. Defendant builds its argument on the following language from Precision Instrument, especially the emphasized sentence: Those who have applications pending with the Patent Office or who are parties to Patent Office proceedings have an uncompromising duty to report to it all facts concerning possible fraud or inequitableness underlying the applications in issue, [citations] This duty is not excused by reasonable doubts as to the sufficiency of the proof of the inequitable conduct nor by resort to independent legal advice. Public interest demands that all facts relevant to such matters be submitted formally or informally to the Patent Office which can then pass upon the sufficiency of the evidence. [324 U.S. at 818, 65 S.Ct. at 999, emphasis added.] Defendant argues that plaintiff’s failure to disclose the pendency of the Lucerne application cannot be justified by plaintiff’s assertion that, despite an agreement by defendant to give plaintiff evidence of reduction to practice and first inventorship, no evidence was forthcoming. Given the Magistrate’s determination that the Lucerne device was covered by the Gawron patent application terms and that the device was ordered by Skil and produced by Lucerne with Skil’s advice and assistance, this Court fails to see how the Patent Office could have been misled as to the claims of the Gawron Patent by failure of Skil to reveal who had produced the demonstration device. With respect to Lucerne’s claim that Skil failed to reveal the pendency of the Lucerne application to the patent examiner, it is true that a failure “to call attention to material and relevant prior art” will support a defense of fraud. Buzzelli v. Minnesota Mining & Manufacturing Co., 521 F.2d 1162, at 1163 (6th Cir. 1975). Buzzelli in fact quotes the passage from Precision Instrument on which defendant has based its claim. However, defendant has misanalyzed the sentence emphasized in the quotation, supra, from that passage. That sentence explains that a mere showing that plaintiff had doubts about the relevance of a pending application or relied on legal advice, does not, of itself, excuse a failure to reveal; yet, it would be ludicrous to assume that an applicant is therefore required to reveal all applications that could conceivably be argued to have some relationship to the patent being urged. The passage shows only that legal advice is not per se an excuse from charges of fraud. In fact, Buzzelli suggests that the prior art must be shown to have been material and relevant before a failure to reveal would be considered fraudulent. The Findings of the Magistrate make it clear that the Lucerne application did not meet these criteria. The heart of the matter is the invention date of the Lucerne device. If the Lucerne date preceded Gawron’s invention, the Lucerne application was material to the Patent Office. If not, the Lucerne invention date made no difference. The later date of the Lucerne invention, then, makes disclosure immaterial. See, H. K. Porter Co., Inc. v. Gates Rubber Co., 187 U.S.P.Q. 692 (D.C.Colo.1975). The matter is brought into sharper perspective when it is remembered that Skil first learned of the Lucerne device in early 1964, nearly sixteen months after filing the Gawron application. During the next twenty months, up to the date the Gawron patent was granted in September of 1965, Lucerne failed to provide Skil with any documentary evidence that the Lucerne device preceded the Gawron application date. Lucerne did no more during this period than claim priority, a claim that, under the circumstances, Skil had reasonable cause to doubt. In fact, Lucerne’s counsel essentially conceded in July of 1965 that no proof of prior invention had yet been produced. [MR, p. 57.] HI. On March 14, 1979, the Magistrate ordered that the 1977 counterclaim antitrust issues be severed from this case and that a previously issued 1977 order staying all proceedings as to those counterclaims be terminated. Defendants objected to the appropriateness of this action by the Magistrate and he therefore rephrased the Order of March 4 into a Report and Recommendation of April 17, 1979. The Court sees the wisdom of such an Order in promoting efficiency within its docket. Rule 42(b) of the Federal Rules of Civil Procedure. IV. The Court hereby adopts in full and without change or exception the Report and Recommendation of the Magistrate of March 9, 1979, and the Report and Recommendation of the Magistrate of April 17, 1979. These Reports are attached hereto as Appendices A and B and are made a part hereof and their recommended actions shall be the Order of this Court. This Court commends the Magistrate for a careful and thorough examination of the facts and the law. IT IS SO ORDERED. REPORT AND RECOMMENDED DECISION OF MAGISTRATE JACK B. STREEPY, United States Magistrate. This consolidated action was referred to the magistrate, with consent of the parties, to conduct pretrial and trial proceedings as a master, pursuant to 28 U.S.C. § 636. Based upon the evidence taken during a twenty-one day trial I recommend the following. References to the record are not exhaustive. Any matter set forth in the Discussion and Conclusions of Law deemed to be a Finding of Fact is hereby incorporated into its appropriate designation. FINDINGS OF FACT The Actions and the Parties 1. The issues in this consolidated action revolve around two patents owned by the plaintiff, Skil Corporation (Skil). Those patents are: (1) U.S. Patent No. 3,209,228, in the name of Alex F. Gawron (the Gawron patent), titled “System For Controlling Electric Motors In Power Tools and The Like” (Plaintiff’s Exhibit, hereafter PX, 1); and (2) U.S. Patent No. 3,260,827 in the name of Carl J. Frenzel (the Frenzel patent), titled “Motor Reversing Mechanism For Electrically Powered Portable Tools” (PX 24). Mr. Gawron and Mr. Frenzel have assigned their respective patents, and all rights therein to Skil. (PX 3, 26; Pretrial Stipulation, hereafter Stip., paras. 12, 13). 2. In action C 69^471 Skil has sued Lucerne Products Inc. (Lucerne) and Mr. Benjamin H. Matthews for royalties in a four count complaint. The parties are of diverse citizenship (Stip., paras. 1, 2, 6). The complaint essentially contends that Skil entered into licensing agreements with the defendants concerning the Gawron and Frenzel patents, that the defendants have failed to pay due and owing royalties, and that the defendants have erroneously contended that certain devices which they manufacture are not covered by the patents. 3. In action C 74-121 Skil has sued Lucerne; Mr. Matthews; the Millers Falls Company (Millers Falls), now a division of defendant Ingersoll-Rand Company; Wen Products, Inc. (Wen); and Rockwell Manufacturing Company, now Rockwell International Corporation (Rockwell). The action is a one count complaint alleging that the defendants have infringed the Gawron patent. 4. In their responses to the complaints the defendants have raised numerous issues, including whether the Gawron and Frenzel patents are valid, whether there has been infringement of the Gawron patent, whether certain devices are covered by the Gawron and Frenzel patents, whether Skil committed fraud upon the Patent Office in obtaining the Gawron and Frenzel patents, whether Skil engaged in patent misuse concerning the Gawron and Frenzel patents, and whether Skil legally declared the license agreement concerning the Gawron patent to be cancelled. THE GAWRON PATENT Nonobviousness 5. The Gawron patent consists of four claims. Each claim is a combination of elements which includes: (1) an appropriate electric motor, (2) a silicon controlled rectifier (SCR) speed control circuit, (3) a trigger, and (4) human feedback. These elements are combined to achieve the desired goal of speed control, which, as applied to a universal motor driven hand drill, is comprised of three distinct elements: (1) original selection of an appropriate drill speed (rpm) for a particular drilling operation; (2) maintaining that drill speed during operation as the load on the drill varies; and (3) changing the original drill speed while the drilling operation is being performed if a second drill speed becomes more appropriate. The SCR speed control circuit permits the drill to be operated within a relatively wide range of speed. Manipulating the trigger sets the desired speed. Once the drilling begins the operator’s human senses (human feedback) tell him whether he should maintain the initial drill speed, increase it, or decrease it. As the load varies on the drill human feedback also tells the operator how to manipulate the trigger in order to maintain the desired constant speed (PX 1). 6. As of September 28, 1962, the date of the Gawron patent application, the scope and content of the prior art included the following: (a) Gemmill patent (Gemmill) No. 2,609,-525, (PX 2A; Defendants’ Exhibit, hereafter DX 32), which teaches that the speed of an electric appliance, such as a food mixer, can be varied by using a trigger in combination with a circuit which features a rheostat. The desired speed for the food mixer is obtained and maintained by human feedback (T 982-983). (b) An SCR manual (SCR manual) published by the General Electric Company (DX 40), which teaches that since 1957, in hundreds of different jobs, the SCR has replaced certain components, including rheostats (Id, p. ii). (c) Slater patent (Slater) No. 3,103,618 (PX 2A; DX 35), which teaches that an SCR circuit can be used in a switch to vary the dimming of a lamp by utilizing a knob to set the desired level of dimming. (d) Australia patent (Australia) No. 242,-179 (PX 2A), which teaches that an SCR circuit can be used in a portable electric drill to vary the drill speed by combining a knob, to set the desired speed, with a built-in speed regulating circuit, to maintain that speed. (e) An article by F. W. Gutzwiller (Gutzwiller) titled “Universal Motor Speed Control”, published by the General Electric Company (PX 2A; DX 37, 38), which teaches that SCR circuits can be used to obtain a range of motor speeds, and that if constant speed is desired with a varying load an SCR circuit with inherent feedback is required. 7. The difference between the prior art and the claims of the Gawron patent is as follows: (a) Gemmill teaches the elements of speed control, human feedback (T 982-983), and use of a trigger; however, its circuitry features a rheostat rather than an SCR. Moreover, the Gemmill rheostat speed control circuit cannot be used in an electric hand drill (T 1047, 2419-2420, 2905-2907). (b) Although Gutzwiller reveals the SCR circuit which is utilized by the Gawron patent (DX 37, pp. 2-3; T 978-980), it does not teach that the circuit can be utilized to achieve essentially constant speed characteristics with a varying load, nor does it teach the use of a trigger. (c) Slater relates to a dimming switch rather than the speed of a hand driven motor, and does not mention varying load conditions. Moreover, Slater alters the voltage and current being applied by means of utilizing a knob to preset the desired level, rather than by utilizing human feedback with a trigger to reach the desired level during operation. (d) Australia teaches an SCR circuit being utilized in a portable electric drill, but teaches use of automatic, or inherent, feedback rather than human feedback. Australia uses a knob to preset the desired speed and relies upon the inherent feedback circuit to maintain that speed; whereas Gawron does not present the desired speed, rather it uses a trigger to reach the desired speed and relies upon human feedback to maintain that speed during operation of the drill. (e) The SCR manual does not refer to the elements of human feedback, use of a trigger to achieve speed control, nor even speed control. 8. It is possible to combine the Gemmill feedback device with the relevant Gutzwiller SCR circuit to create the claims of the Gawron patent (DX 32, 173; T 2185-2214). The factual issue is whether this combination of elements was within the level of ordinary skill in the art as of September 28, 1962. That level of skill was as follows. (a) The Gemmill patent was issued in 1952 (DX 32, p. 1). SCRs were not introduced on the market until 1957 (DX 40). No suggestion has been made that Mr. Gemmill was skilled in the art of SCR circuitry. (b) Mr. Gutzwiller did possess expertise in the art of SCR circuitry, as reflected in his 1961 prior art publication (DX 37, 38; PX 2A). An essential element of the inventive concept of the Gawron patent is set forth in the last full paragraph of the specification prior to setting forth the claims, which reads as follows (PX 1): As it is apparent to those skilled in the art, the circuit shown and described does not have inherent speed feedback. However, essentially constant speed under varying load conditions can be readily obtained by manipulation of the trigger which is under the operator’s control at all times during operation of the tool. This quoted paragraph of the Gawron patent is diametrically opposed to the teaching of Gutzwiller, which taught that to achieve essentially constant speed with the application of a varying load and SCR speed control circuit with inherent feedback was required (T 1001, 1050-1052). This interpretation of Gutzwiller is readily apparent from an analysis thereof: (1) Gutzwiller describes four SCR circuits. One circuit, that which is utilized in the Gawron patent (T 978-980), does not have inherent, or automatic, feedback. The other three Gutzwiller circuits do have this feature. Gutzwiller distinguishes betweén the benefits of SCR circuits: (1) all four circuits “ . . . can be used wherever a wide range of speed is required. . . . whereas (2) as to the three circuits with “inherent speed feedback”, they are also capable of providing “ . . . essentially constant speed characteristics adequate for many types of applications over a wide range of speed.” (DX 37, p. 1). (2) Gutzwiller’s first SCR circuit, that without inherent speed feedback, is incorporated in the Gawron patent. With regard to this circuit, Gutzwiller notes (Id.., p. 3): As it stands, this circuit is handicapped by the well-known drooping speed-torque characteristic of series motors. As load is increased, the motor slows down markedly, and if load is removed, the motor runs up to a high speed. To achieve essentially constant speed characteristics with varying load, some type of feedback is necessary for a series motor control. The following three circuits achieve feedback. The three SCR circuits which solve this problem are those which contain inherent speed feedback. (3) In comparing the four SCR circuits under the heading, “Speed Regulation & Stability Performance” Gutzwiller rates the first circuit, that without feedback, as “Poor (no feedback)”. The other three circuits, those with inherent feedback, are rated as “limited”, “good”, or “best”. (Id., p. 8). (4) It is evident from the above discussion that what separates the first circuit, that without inherent feedback, from the other circuits is the ability of the latter to “achieve essentially constant speed characteristics with varying load”. Gutzwiller is clearly stating that only those circuits with inherent feedback are capable of achieving this feature. The Gawron patent requires constant drill speed under varying load, hence Gutzwiller teaches that inherent feedback SCR circuits are required in a Gawron patent device. (5) Gutzwiller included the first circuit, that which does not have the inherent feedback necessary to achieve essentially constant speed characteristics with varying load, because his publication does not appear to be limited to uses which required constant speed capability. He lists nine categories of typical uses for the SCR circuits, including food mixers, hand tools, process machinery, movie projectors, machine tools, home appliances, conveyor systems, fans, and hobby and toy applications. (Id., p. 1). With such a wide variety of suggested uses it would not be surprising that at least one of them only requires the capability of achieving a wide range of speed, without the additional capability of maintaining constant speed under the application of a varying load. (c) No evidence was offered at trial to suggest that as of September 28,1962 Gutzwiller did not reflect the level of ordinary skill in the art of SCR circuits. Accordingly, the ordinary skill in the art of SCR speed control circuits as of September 28, 1962, taught that to achieve essentially constant speed under the application of varying load an SCR speed control circuit with inherent feedback capability was required. No evidence was offered to show it was obvious to the appropriate mechanic of ordinary skill as of September 28, 1962, to combine Gem-mill with Gutzwiller’s first SCR circuit as a means of achieving constant speed under varying load. 9. On September 21, 1965, Mr. Gawron filed an application for a patent in Canada (DX 41, p. 1). During the course of the proceedings the agents for Mr. Gawron stated that claims 1 to 4 of the Canadian application were virtually identical with the claims of the United States Gawron patent (Id., p. 18). The application was eventually rejected as being within the expected skill of one versed in the art. (Id., pp. 75-79). (a) No evidence was introduced showing that in 1965 Canadian patent law was substantially identical to United States patent law, or that the facts and circumstances surrounding the Canadian application were substantially identical to those surrounding the Gawron application before the United States Patent Office. 10. Skil entered into licensing agreements concerning, among other patents, the Gawron patent. Thus Skil contracted with Arrow-Hart Inc., beginning in 1965 (PX 115), the Milwaukee Electric Tool Corp. in 1966 (PX 113), McGraw-Edison Company in 1966 (PX 114), Singer Company in 1967 (PX 117), Black & Decker Manufacturing Company in 1971 (PX 118), and defendant Millers Falls Company in 1975 (PX 116). Generally speaking, the royalty rates under these licensing agreements ranged between three and four percent. Skil has received in excess of one million dollars in royalties on the Gawron patent (PX 119E; T 700-701), and since 1964 it has sold approximately one hundred million dollars worth of products which embody the Gawron patent (PX 136, 137, 138; T 615-616). 11. Skil filed an action for infringement of the Gawron patent in the United States District Court for the Northern District of Illinois, and on June 28, 1968, the court ruled the Gawron patent invalid (PX 111; Skil Corporation v. Cutler-Hammer, Inc., 159 U.S.P.Q. 423 (N.D.Ill.1968)). This ruling was appealed and on June 12, 1969, the Seventh Circuit Court of Appeals reversed, ruling that the Gawron patent was valid (PX 111; Skil Corporation v. Cutler-Hammer, Inc., 412 F.2d 821 (7th Cir. 1969)). First Inventorship 12. Mr. Gawron began working for Skil in 1960 as an engineer in research and development (T 59). He filed his application for what later became the Gawron patent on September 28, 1962 (PX 2). 13. In the latter part of 1960 Mr. Matthews began investigating, on behalf of Lucerne, possible functions of the switch used to turn portable power tools on and off. (DX 155). By December 23, 1960, this investigation had evolved into a “speed control project” which was being worked on by Mr. Matthews and Mr. Jules F. Rhine (DX 156, T 2238-2239). Their efforts eventually produced, independent of the efforts of Mr. Gawron, the invention set forth in the Gawron patent. A critical issue is the date on which they reduced their speed control device (the Lucerne speed control device) to practice. 14. Both Mr. Rhine and Mr. Matthews testified they first successfully operated a drill with the Lucerne speed control device during the week between Christmas of 1960 and New Years Day of 1961. Mr. Rhine testified they “stuffed” the device into a Ram drill, which “did operate” (T 2261), and that upon pulling the drill trigger they “did achieve control” and “did vary the speed of the drill” (T 2315-2316). Mr. Matthews testified that as the trigger was pulled the drill “would start slowly and get faster and faster and faster”. He noted the device varied the motor’s speed “Continuously.” (T 2543). (a) This testimony comprises the entire description of the 1960 testing of the speed control device. None of the details or surrounding circumstances were described. (b) An electric hand drill with a speed control device must be capable of drilling into wood, plastic metal and other materials. It must also be able to withstand rough treatment. (T 3472-3473). The Lucerne testing did not indicate any drilling into appropriate material. (c) The Lucerne testing did not indicate that a varying load was applied to the drill as it was being operated. 15. Despite viewing the 1960 test as “a landmark”, which represented something they “had been trying to do for many years”, not one piece of paper was introduced which referred to that test. Mr. Matthews’ explanation for this failure was that “. .we don’t keep records like that.” (T 2625). 16. Mr. Rhine and Mr. Matthews testified they demonstrated the Lucerne speed control device to three other individuals (T 2436, 2544). (a) Not one of these individuals was called to corroborate or describe the alleged demonstration, although it appears their testimony would have been relevant (DX 9, pp. 27, 45, 52). (b) There is no evidence that any of these individuals were peculiarly within the control or power of the defendants to produce them at trial. 17. The only relevant Lucerne document which arguably shows the Lucerne speed control device circuitry was drawn by Mr. Matthews and dated July 6, 1961 (DX 158). This crude drawing admittedly was in error since it would cause a short circuit as drawn (T 2550-2551). 18. The first Lucerne speed control device, that which allegedly operated the Ram drill in 1960, was subsequently altered, thus the original is no longer in existence (T 2236, 2247, 2545-2546, 2872-2874). In its altered form it was introduced into evidence (DX 16). The device as altered was not demonstrated at trial to be operable. (a) Mr. Rhine and Mr. Matthews did not agree as to the period of time during which alterations were made to the original device, Mr. Matthews stating they occurred from 1960 to some time in 1962 (T 2874), Mr. Rhine testifying they were made from 1960 to the fall of 1963 (T 2247). (b) A tag attached to the altered Lucerne speed control device reads in part, “November 1960” (DX 16). Mr. Matthews testified he wrote this tag and attached it to the original device in November of 1960. Upon further examination he testified that since the first device was constructed in December of 1960 he put the tag on at that time, but wrote “November 1960” since that represented when he had received the SCR for the device (T 2618-2620). He indicated confusion as to the precise month and year that he obtained certain components of the device, and conceded that picking out the month was “a little difficult.” (T 2822-2829). This tag has followed along with the speed control device during all its later modifications. Mr. Matthews acknowledged it was possible, but not probable, that the tag could have got “fouled up” at some time (T 2620-2625). (c) A photograph taken prior to August 3, 1966, of the first model of the Lucerne speed control device does not show the tag which is now attached to it (DX 9, pp. 61, 64, 66; T 2913-2916). 19. Mr. Rhine testified that he worked on a second model or prototype of the Lucerne speed control device during the 1961 through 1963 time period (DX 17; T 2267-2269). He did not know whether the original parts remained on the device (T 2271). Mr. Matthews testified that “. . .we made it [DX 17] and it worked, and it was put away.” He further testified that no changes were made in its components (T 2632-2633). No other evidence of testing was offered concerning this model. (a) Attached to the second model of the Lucerne speed control device is a tag which reads in part “Feb. 1962” (DX 17). Mr. Matthews testified he wrote this on the tag at about the time it was made (T 2614). Mr. Rhine could not identify this tag (T 2274). (b) A photograph of the second model does not show the tag which is now attached to it (DX 9, pp. 61, 64, 66; T 2913-2916). (c) One of the components of the second model is an SCR with the legend on it “GE C15B 252” (DX 17). Although Mr. Matthews testified that it was the original component of the second model, assembled some time in February of 1962, there is other evidence that the legend shows the SCR could not have been manufactured before the last week of December, 1962 (Plaintiff’s Rebuttal Exhibit, hereafter PXR, 50, pp. 14-15, 18-19, 33-34; PXR 52). 20. Three additional physical devices (DX 19, 20, 21) were introduced to show various stages of development of the Lucerne speed control device. The tags attached to these devices indicate they were developed subsequent to 1962. (See also T 2285, 2291-2292, 2298). 21. There is no clear and convincing evidence that the Lucerne speed control device was tested prior to September 28, 1962, in such a way as to demonstrate its practical utility for its intended purpose. 22. Assuming Lucerne achieved a reduction to practice in December of 1960, it did not disclose its speed control device to the trade until approximately 36 months thereafter, in late 1963 or early 1964. During this 36 month period Lucerne was seeking to achieve a retrofit package for its speed control device which would sell for no more than $3.00. A retrofit package is described as housing the speed control components inside a casing which can be directly placed in the location previously utilized by the normal on/off trigger switch in a hand held electric drill. (T 1591-1592, 1625, 2262-2263, 2284-2285, 2562-2563, 2913, 2943-2944). 23. Lucerne did not file a patent application concerning either its speed control components or its retrofit package until it was prompted to do so upon learning in early 1964 that Skil had a patent application on file (T 2911). (a) The Lucerne patent application of March 26, 1964, contained eight claims, none of which were referred to placing the speed control circuitry into the handle of an electric drill or of achieving a retrofit package. (DX 9, pp. 12-14). The Lucerne patent application specification did note that, “Although not herein disclosed [certain] components of the instant embodiment of control circuit may be constructed of such size as to enable the same to be ‘miniaturized’ . . . so as to enable the complete circuit to be placed within the housing of the motor as, for example, in the handle of the portion of a portable type of power drill or saw.” (Id., pp. 10-11). The Conduct of Skil 24. Mr. Gawron began work on his invention in 1962, and in the summer thereof he constructed a prototype speed control circuit which he placed into a drill. He later filed his patent application on September 28, 1962 (T 72, 76-77; PX 4). 25. Mr. Gawron continued work on his invention after filing his application, in part seeking an economically feasible method to place his SCR speed control invention into an electric hand drill. During this period Mr. Matthews and Mr. Rhine were independently seeking to reach the same goal. 26. On December 3, 1963, the patent examiner rejected all five claims of the Gawron patent application. (PX 2, p. 13). 27. Mr. Matthews and Mr. Rhine were eventually able to achieve a retrofit package for the Lucerne speed control device, and in January of 1964 Lucerne began to demonstrate it to various companies, including Skil in Chicago, Illinois. (T 2572-2573). 28. Lucerne left a sample of its speed control device with Skil. Mr. Gawron subjected it to a series of tests, and submitted a report on his testing (DX 67). (a) Some differences between the Lucerne device and the design of a Skil speed control device were noted, but there were also many similarities. In comparing the two controls Mr. Gawron stated in part (Id., pp. 3-4): Reason for SKIL controlled design-exclusive design. By keeping design in our own Engineering Department, we can move faster and keep competition in the dark about the approach we are taking. By keeping the design here we would not be helping Lucerne in the further development of this control. Lucerne has not demonstrated any special ‘know how’ or engineering talent that we do not possess here. By keeping design here we can gain more knowledge on these controls which should be useful in future products. Reasons against SKIL control design — Would consume additional Engineering man-hours. SKIL would have to assume tooling cost. Mr. Gawron recommended that Skil evaluate the necessary tooling cost for a new trigger control design and estimate the additional time to design same. (b) The Lucerne speed control was the only device known to Mr. Gawron in February of 1964 that was completely encased in a housing which could be mounted in the handle of a drill. His prototype (PX 4), which was the only physical embodiment of his invention that he had constructed, did not have the speed control elements exclusively housed in the handle of the tool. A subsequent design also was not housed exclusively in the tool handle. (T 962-964, 996-997). Mr. Gawron was aware in February of 1964 that the Lucerne speed control device he tested embodied the subject matter of his patent. (T 451). 29. The Lucerne speed control device also prompted two memoranda in February of 1964 from Mr. Frank Kaman, who either was, or was about to become, a vice-president of Skil. The memoranda were dated February 6 and February 20 of 1964. The first memo was directed to eight Skil employees, including its president, assistant to the president, chairman of the board, and general counsel. (DX 1, 2; T 1177-1178). Mr. Kaman described the desirability of an innovative trigger type speed control, and Skil’s efforts to achieve this goal. The retrofit package of the Lucerne device was an attractive feature which Skil did not have. His major concern was directed toward the potential competitive threat of the Lucerne speed control device to Skil’s goal of achieving a unique position or innovation in the field of trigger speed control. He proposed various methods, either singularly or in combination, and sometimes in rather blunt language, to maintain an exclusive position for Skill: (a) Skil could proceed independently of Lucerne with its own development. He recommended this approach be rejected since the Lucerne device was the most feasible method for Skil to put the Gawron invention into production (DX 1, 2). (b) Skil could join forces with Lucerne. This approach was recommended after considerable study of the alternatives (DX 2). (c) Mr. Kaman felt that “there is a chance” the Gawron patent date “may precede” the Lucerne activities, thus Skil “may prevail over Lucerne on this basis alone.” (DX 1). He felt that the Gawron patent “affords some encouragement as to the novelty” of Skil’s efforts, but Skil did “not have positive assurance as to the breadth of coverage” afforded by that patent. Nonetheless there was “no reason to downgrade the originality of” Skil’s patent efforts. Skil could inform Lucerne of its patent position and warn there would be legal consequences if Lucerne did not join forces with Skil. (DX 2). (d) Skil could offer to give Lucerne business in other areas as inducement to obtain exclusive production rights from Lucerne (DX 2). (e) Skil could inform Lucerne of the fact certain improvements were required before its device could be placed into production (DX 1, 2). (f) Skil could order a sufficient number of Lucerne’s speed control device units to saturate its production (DX 1, 2). (g) Skil could acquire the Lucerne corporation, but such an acquisition was not desirable for the sole purpose of acquiring exclusive possession of the Lucerne speed control (DX 1, 2). 30. Skil personnel, including Mr. Kaman, had numerous communications with Lucerne personnel, concerning the Lucerne design, including a trip to the Lucerne plant in Ohio. (T 2573-2577). 31. Skil and Lucerne entered into negotiations, and on March 2, 1964, Skil ordered 100,000 of the Lucerne speed control switches at $3.00 apiece. (DX 3, T 2578-2579). (a) At the time of the purchase order Lucerne did not have production facilities to manufacture its speed control device. Skil assisted Lucerne in the large undertaking of creating the necessary production facilities, in part by supplying two tool and dye makers for a period of approximately three weeks at the Lucerne production plant (T 2408-2411, 2582-2585). (b) Skil insisted on a zero start capability in the speed control and made other suggestions. (T 1637-1638, 2410, 2591-2593, 2605-2606). 32. On March 3, 1964, Skil amended its initial application by canceling original claims 1, 2 and 5 and adding new claims 6 and 7 (PX 2, pp. 15-19). In the supporting remarks Skil noted in part that Mr. Gawron’s electrical control system “. . .is small and compact and readily lends itself to mounting within the handle of the tool without causing heating of the handle.” It also noted that Mr. Gawron’s invention for the first time provided an extremely compact trigger operating control system “. . . which may be readily mounted in the housing of a power tool, such as the handle of an electric drill, for example.” (Id., p. 18). (a) There is no evidence that either Mr. Gawron or Skil informed the Patent Office of the Lucerne speed control device. (b) The prototype drill of Mr. Gawron did not locate the SCR speed control circuitry in the drill handle (T 964-965), and three of the five originally filed patent claims did not limit the circuitry to the drill handle. Original claim three, however, did refer in part to “. . . said motor and devices connected in series therewith being mounted on a handle, and a trigger on said handle connected to . . .” (PX 2, 7). The originally filed specification stated in part that the invention related generally to electric motor control systems and had “particular relation to . . .a universal motor driven hand drill . . . ” (Id., p. 1). It further noted that “. . . the control devices associated with the silicon controlled rectifier [SCR] 15 and the silicon controlled rectifier [SCR] 15 itself can be mounted in a handle or other convenient portion of the tool . . (Id., p. 4). The diagram accompanying the original application showed the speed control circuitry as being mounted in the handle of a tool. (Id., p. 12). (c) The Gawron invention does not include instructions or specifications as to how a physical assembly of the SCR speed control can be constructed (T 996-997). Rather, the invention sets forth a combination of elements necessary to accomplish speed control and the location or packaging of the SCR circuitry is not an element of that combination. 33. Production facilities at Lucerne were sufficiently completed to permit manufacturing of the Lucerne speed control device, designated Model TSC 113 or 114, in the spring of 1964 (T 1295,1595-1596). After the original purchase order was filled, by May of 1965, Skil issued additional purchase orders to Lucerne for its TSC 113/114 model (T 1341), including a second order for another 100,000 switches at $2.35 apiece. (T 2607). 34. On November 24, 1964, the patent examiner rejected the remaining claims of Mr. Gawron’s patent application. (PX 2, pp. 20-21). 35. Attorneys for Skil and Lucerne began negotiations with reference to a potential agreement concerning the exchange of information proving priority of invention dates. (DX 12, 14). 36. Negotiations culminated in an agreement dated March 9, 1965, between Skil and Lucerne, which included the following (PX 98): (a) The agreement was entered into by reason of the pending patent applications of Skil and Lucerne, which applications “. . . may have claims to common subject matter or may support claims to common subject matter, . .”, and the parties’ desire to avoid a Patent Office interference and “decide between themselves as to which party is entitled to any patent. (b) The attorneys would make a mutual disclosure of the respective patent applications, determine whether there was common subject matter, and, if so, compare proofs as to date of inventorship. (c) In the event they could not agree as to which party was entitled to the claim or claims as to common subject matter the Patent Office would be requested to set up an interference to determine same. (d) In the event a patent was issued to either Skil or Lucerne the party owning the patent would grant to the other party a nonexclusive license to make the speed control switch units for a royalty of three percent, or lower in the event another license was granted for a lower royalty. It was the duty of the licensor to sue infringers of whatever patent may be obtained. 37. At the March 9, 1965, signing of the agreement the parties disclosed their respective patent applications to each other (T 2949). 38. Ten days after the license agreement was entered into, on March 16, 1965, Mr. Kaman and an attorney for Skil met with the patent examiner concerning the Gawron patent application. They demonstrated the Gawron invention by operating a variable speed control drill which incorporated the invention. The invention was embodied in a Lucerne speed control device which Skil had purchased from Lucerne. (T 1321-1328). 39. Six days after meeting with the patent examiner, on March 25, 1965, another amendment to the Gawron application was filed (PX 2, pp. 22-24). (a) In the remarks accompanying the amendment the March 16, 1965, meeting was acknowledged and briefly described (Id., pp. 24-26). There is no evidence showing that (1) the patent examiner was informed that the demonstration drill contained a Lucerne speed control device, or that (2) Skil pointed out to the examiner the retrofit feature of the Lucerne device or otherwise contended that the invention included the retrofit feature as an element. (b) The remarks also contained argument seeking to distinguish the Gawron claims, as amended, from certain prior art patents, which included the Gemmill patent. The patent examiner was shown a copy of these patents, and with reference thereto it was noted that, “None of these patents in any way relate to a trigger speed control using a silicon control rectifier circuit, and in particular the type of circuit which permits the operator of the tool to achieve feedback by finger control.” (Id., p. 26). 40. Two weeks later, on April 6, 1965, the patent examiner reconsidered the Gawron application and allowed it. (Id., p. 30). 41. On May 20, 1965, Mr. Gawron executed a supplemental oath, stating in part that “. . .he does not know and does not believe that the same [Gawron invention] was ever known or used before his invention thereof. . . .” (Id., p. 32). 42. On June 15, 1965, the Patent Office received a requested amendment of the Matthews, et al., application which added claims 9 through 12. In the accompanying remarks it was noted that the new claims were being entered into the record inasmuch as the applicant had been advised they had just been allowed in another pending application directed to the identical subject matter. The applicant understood the other application was that of Mr. Gawron. (DX 9, pp. 19-23). 43. On June 30, 1965, attorneys for Skil and Lucerne met in Chicago. Lucerne exhibited its first two trigger speed control device prototypes (DX 16, 17). Counsel for Lucerne represented that the two prototypes were made by Mr. Matthews and others before the relevant Gawron invention dates, but no supporting documentation was shown by Lucerne at this meeting. (T 2949-2954). 44. Approximately one week later, on July 7, 1965, Skil paid the final fee for the Gawron application to the Patent Office (PX 2, p. 36). 45. One week later, by letter dated July 13, 1965, counsel for Skil informed counsel for Lucerne that Skil had received official notice from the Patent Office of allowance of the Gawron application. The letter noted that, “Since we have heard nothing from you concerning establishing the reduction to practice dates associated with the switch unit shown to us during your visit of June 30, 1965, we assume these dates cannot be supported by clear and convincing evidence as required.” The letter continued that Skil paid the final fee to avoid any delay in issuance of the patent, since, “As you and your client will appreciate, a delay in granting of this patent could place both Skil and Lucerne at a disadvantage.” The letter concluded that if Lucerne subsequently developed adequate proof concerning the Lucerne invention dates, “. . . appropriate steps can of course be taken so that the patent will be awarded to the proper party.” (DX 22). 46. Lucerne did not object to Skil’s payment of the fee. In a letter dated July 20, 1965, counsel for Lucerne confirmed receipt of the July 13 Skil letter, and noted in part that Mr. Matthews “. . . has not as yet completed his investigation of files in an effort to find proof of his invention relating to the speed control device which I disclosed to you during my visit of June 30 to the Skil headquarters.” Counsel expected that Mr. Matthews would conclude his investigation within a very short time (DX 23). 47. On September 28, 1965, the Gawron patent (PX 1) issued out of the Gawron application (PX 2). (a) The Gawron application does not mention the June 30, 1965, meeting between the parties. 48. From the very beginning of their contacts, Skil expressed an interest in acquiring Lucerne (T 2608). There was a meeting in the spring of 1966 between, among others, Mr. John W. Sullivan, then President of Skil, and Mr. Matthews. (T 3268-3268A). This meeting was followed by formal offers of purchase from Skil, dated March 30,1966, and April 6,1966 (PX 165, 166). Although Mr. Sullivan was of the opinion that a purchase agreement was imminent (PXR 48), the acquisition was never consummated (T 3299). Mr. Sullivan did not threaten to litigate Lucerne to death if there was no agreed upon sale (T 3299-3300, 3327). 49. On November 15, 1965, Skil and Lucerne amended their earlier license agreement, by entering into an addendum which in part took note of the Gawron patent, and stated that if Lucerne obtained a patent it would be assigned to Skil with Lucerne receiving a nonexclusive, royalty-free license. (PX 99). 50. On May 19,1966, the patent examiner rejected all claims of the Lucerne application (DX 9, pp. 33-35). 51. On August 4, 1966, an amendment was filed to the Lucerne application. As to claims 9 through 12 Lucerne requested that an interference be declared between its application and the Gawron patent (Id., pp. 36-44). 52. In response to the amendment of August 4, 1966, the patent examiner rejected all Lucerne claims on September 9, 1966 (Id., pp. 95-97), and sometime thereafter the application was abandoned (Id., p. 98). 53. After the Gawron patent was issued on September 28, 1965, during the period between early 1966 and August of 1967, Lucerne, for the first time, showed a document (DX 158) to Skil in an effort to establish priority of invention. Two additional documents (DX 156, 157) were first disclosed to Skil in August of 1967. (T 2948-2954). 54. There is no clear and convincing evidence that Skil intentionally withheld from, or misrepresented to, the Patent Office any pertinent or material information concerning the Gawron application. 55. There is no clear and convincing evidence that any of Skil’s conduct before the Patent Office was taken with the intent to deceive. 56. Skil has had a national account with the J. C. Penney Company (J. C. Penney) for the sale of a varying range (from ten to forty) of Skil power tools since at least 1970 (T 1958-1959; DX 120A). (a) The general procedure was for Skil to enter into a contract with J. C. Penney once or twice a year, each contract specifying a price for each separate Skil product being sold during the contract period. Skil’s overall objective in each contract was to obtain a profit. Certain tools in the mix were sold at a loss, but these losses were compensated for by the profit made on other tools in the mix. (T 2762-2765; DX 122, pp. 24-25). 57. During the period 1971 through 1977 Skil sold products, including drills, to J. C. Penney incorporating the Gawron invention. Some of these drills were sold below cost, while others were sold at a profit. During the same period Skil sold products, including drills, which did not incorporate the Gawron invention. Some of these drills were sold below cost, while others were sold at a profit. (T 2002-2004, 2060-2062, 2755-2758, 2760-2767; DX 120A, 142). An example from each of these categories shows the following during the August 3, 1971 contract (DX 120A): (a) A drill containing the Gawron invention, designated as Part 457-49:4, was sold for a 30.8% profit. (b) A drill containing the Gawron invention, designated as Part 501-49:3, was sold at a loss of 14.7%. (c) A drill which did not incorporate the Gawron invention, designated as Part 541-49:5, was sold for a profit of 35.5%. (d) A drill which did not incorporate the Gawron invention, designated as Part 503-49:8, was sold at a loss of 34.1%. 58. There is no evidence that Skil conditioned the sale to J. C. Penney of one product upon the sale of another product, or that Skil conditioned the sale of a product with the Gawron invention upon the sale of any other product. There is no evidence that those Skil products containing the Gawron invention which were sold below cost were sold in that manner because they contained the invention. There is no evidence that during any contract period the total loss from sales of products containing the Gawron invention exceeded the total profit made from other products containing the Gawron invention. 59. Wen, one of the defendants herein, manufactures a line of electric portable tools, including drills (DX 121, p. 7). Wen has sold power tools to J. C. Penney since the early 1960’s (Id., p. 11). Over a certain period of time J. C. Penney discontinued purchasing various items from Wen. While it appears that some of the Wen items were discontinued in favor of Skil items (Id., pp. 49-52), there is no evidence that those particular items included the Gawron patent invention, or that those particular items were being sold by Skil below cost to J. C. Penney. Since 1972 Wen’s business with J. C. Penney has expanded rather substantially, to the point where it has become a “very good” account (DX 122, p. 21). Devices Covered by the Gawron Patent 60. Lucerne has manufactured essentially two different speed control devices: (1) the TSC 113 and 114 models; and (2) the TSC 252, 254, and 256 models. The first type was manufactured and sold between 1964 and 1968. The second type (hereafter referred to as the TSC 254 model) was manufactured and sold from late 1968 to the present time. (PX 44, at Interrogatory 35; PX 130, at Interrogatory 2; Stip., paras. 23, 25). 61. The first speed control device, in models TSC 113 and 114, comes under the terms of the Gawron patent (PX 40, pp. 37, 40; PX 44, at Interrogatory 35, 36; PX 101, 102). The remaining issue is whether the TSC 254 model comes under the Gawron patent. 62. The Gawron invention permits the operator of a tool which is being run on alternating electric current to vary and control the voltage and current being applied to the tool motor, and thus its speed, by using human feedback to manipulate the trigger of the tool. Manipulation of the trigger alone does not achieve speed control. Rather, the trigger and motor must be connected to an SCR speed control circuit. Such a circuit functions as follows (PX 20A, 20B; T 218-246): (a) Absent an SCR speed control circuit the voltage appears at the motor in alternating waves of positive, then negative, polarity. A positive voltage wave begins at zero, increases to its peak voltage, then decreases back to zero. The voltage then reverses its polarity, from positive to negative, and the negative voltage wave then appears at the motor in form and manner essentially the mirror image of the positive wave. One cycle is defined as a positive wave followed by a negative wave. In the United States sixty of these cycles commonly occur each second. The electric current flows through the circuit in two directions, changing its direction with each change in voltage polarity, hence the term “alternating current.” Although the voltage changes its polarity, and the current changes its direction, during each cycle, the motor does not recognize these changes and runs in a single direction at the maximum speed permitted by the voltage. (b) Inserting an SCR in the alternating current circuit has the effect of blocking the flow of current in one of its two directions. As a result the motor receives current for one-half of each cycle, and coasts during the other half cycle. The half cycle of current which the motor receives is always flowing in the same direction. The other current direction is always blocked by the SCR. (c) If only an SCR is placed in the circuit there will not be speed control. The motor will be run by current flowing to it at a constant rate equal to one-half of every cycle. It is necessary to add a timing circuit to the SCR, which enables the operator to alter the amount of voltage and current being applied to the motor, and thus alter the motor speed. The timing circuit is controlled by manipulating the tool trigger. By way of example, the operator may manipulate the trigger to set the timing circuit in such a way that voltage causes current flow to the motor during one-eighth of the cycle rather than the one-half cycle permitted by the SCR alone. By moving the trigger the operator may alter the timing circuit in such a manner to permit current flow to the motor during one-fourth of each cycle, thereby increasing the motor speed. The combination of an SCR with a timing circuit is the SCR speed control circuit. 63. The amount of current being applied to the motor at any give time is sometimes described in terms of bursts, or pulses, or voltage. The motor is energized, or caused to operate, by each pulse of voltage, then coasts between pulses. Because the pulses are being applied at a rapid rate the coasting is indistinguishable from the pulses. The SCR speed control circuit varies the duration of the pulses, hence the amount of voltage being applied to the motor, and thus the motor speed. 64. The timing circuit of the SCR speed control circuit in the Lucerne TSC 254 is in parallel relationship with the motor (DX 149; T 492-506,1383-1386,1560); whereas, the timing circuit of the SCR speed control circuit described in the Gawron patent is in series relationship with the motor (T 491— 492, 1382-1383, 1559-1560). The parallel relationship found in the Lucerne circuit is not covered by the claim language of the Gawron patent, which is limited to a series relationship (PX 1). 65. Comparison between th