Full opinion text
MEMORANDUM OPINION FLAUM, District Judge: This cause having been tried by the court without a jury, the court, having heard the testimony and examined the exhibits properly placed in evidence by the parties, having heard the arguments of counsel, and being otherwise fully advised in the premises, hereby enters the following findings of fact and conclusions of law, pursuant to Fed.R.Civ.P. 52(a). This court has jurisdiction over this matter under 28 U.S.C. § 1338(a). Venue is admittedly proper in this district. Plaintiff, B & J Manufacturing Co. (B & J), is an Illinois corporation having a principal office and place of business at 700 West 193rd Street, Glenwood, Illinois. Hennessy Industries, Inc. (Hennessy) is a Delaware corporation having a principal office and place of business at 520 Lively Boulevard, Elk Grove Village, Illinois. B & J is the holder of three patents — viz., United States Patent 3,552,469 (the ’469 patent), entitled “Tire Bead Seater”, United States Patent 3,675,705 (the ’705 patent), entitled “Tire Bead Seating and Inflation Apparatus”, and United States Patent 3,805,871 (the ’871 patent), entitled “Tire Mounting, Bead Seating and Inflation Apparatus and Method of Use”. It alleges that these patents have been infringed by Hennessy. Hennessy denies the charge of infringement and makes an alternative affirmative defense of license. In addition, it claims that those claims of the patents that it is said to have infringed are invalid. For the reasons set forth below, the court holds that all of the contested claims of the three patents are valid, that the accused devices infringe the claims of those patents that B & J alleges they infringe, and that the sale by Hennessy of the accused devices as kits and their sale in any form after its receipt of the latter from counsel for B & J dated September 16, 1974, constituted unlicensed infringement. The court rules, further, that an accounting must be held to ascertain the compensation owing to B & J. Treble damages and attorney’s fees will not be awarded to B & J. It is, however, entitled to an award of costs. BACKGROUND The tubeless tire made its first appearance on American automobiles in the early 1950’s. By the middle of that decade, the tubeless tire had become standard equipment on passenger cars manufactured in this country. Indeed, it also replaced tires equipped with inner tubes for use on trucks and other off-the-road vehicles. The introduction of tubeless tires led to the appearance of a new problem in tire inflation. When its upper and lower beads are in sealing contact with the wheel rim, a tubeless tire can be inflated through the valve stem located in the wheel. However, it often happens that, owing to the vicissitudes of, inter alia, the shipping, storing, or packaging of a tubeless tire, when it has been mounted on a wheel, at least one of its beads is found not to be in sufficient sealing contact with the wheel rim. In such a case, the inflation of the tire cannot, without the use of some mechanical aid, be accomplished entirely through the valve stem, as the air injected into the cavity would escape through the opening, or window, between the unseated bead and the wheel rim proximate to it. Thus, a new method had to be devised to facilitate the inflation of these problem tires. As a result of an industry-wide effort, numerous devices were fashioned to accomplish this task. These apparatus all required the creation of a mechanical seal between the tire bead and the wheel rim. Some of them involved the use of a constricting band, by means of which the circumference of the tire sidewall was constricted, thereby causing the interior rim of the sidewall, the tire bead, to move into sealing engagement with the wheel rim. Others operated by enclosing the window within a larger sealed space, and then seating the tire beads by injecting air into this closed container. Neither of these methods of tubeless tire inflation were without its drawbacks. The use of constrictor bands was always hazardous for the would-be tire inflator. The appearance of radial ply and steel-belted radial ply tires on the market added to the problem, as they rendered constrictor bands ineffective and/or harmful to the tires themselves. Difficulties also attended the use of many of the devices that achieved a mechanical seal by the second means mentioned above. For instance, to employ a device on the order of the Omega Band bead seater marketed by Bruce Caulkins, Inc. (BCI), patented as United States Patent 3,280,880, entitled “Method of and Apparatus for Inflating Tubeless Tires”, filed January 29, 1965 and issued on October 25, 1966, it was necessary to have a different mechanical sealing part for each tire, each rim diameter, and each rim size. The apparatus disclosed by the Muller patent, United States Patent 3,461,938, entitled “Tire Mounting and Inflation System”, filed March 9, 1967 and issued on August 16, 1969, required the application of 10,000 lbs. of pressure against the wheel rim in order to seat the beads of and inflate “problem” tubeless tires. Bruce D. Caulkins (Caulkins) holds a Bachelor’s degree in science and a Master’s degree in physics, with minors in chemistry and mathematics. He worked for Uniroyal between the end of his formal education in 1929 and 1945, in connection with its business of manufacturing and selling tires. In 1945, he joined the Atlas Supply Company (Atlas), for whom Uniroyal had manufactured tires during at least the latter portion of Caulkins’ tenure with Uniroyal. At Atlas, Caulkins was responsible for selecting the tires and equipment relating thereto that would be made available to Standard Oil service stations under the Atlas brand name. Caulkins returned to Uniroyal in 1960 as the Director of Quality Control of their automobile tire manufacturing operations. He continued to work for Uniroyal until August 1, 1963, at which time he commenced devoting himself to the affairs of BCI, a basically one-person enterprise that he had incorporated in March, 1963. From the beginning, BCI marketed tire-related products developed by Caulkins. In 1965, BCI started selling the aforementioned Omega Band, which was the invention of Caulkins and others. This product was a commercial success, and, in 1968, BCI recruited Caulkins’ friend Lee M. Corless (Corless) to provide some office help. Corless received a B.S. in mechanical engineering from Michigan State University in 1930. With the exception of the war years, during most of which he headed an Army school for motor mechanics, Corless spent the next thirty-three years in the employ of several American automobile manufacturing companies. Principally, his duties with them involved experimental automotive engineering. Not long after becoming associated with BCI, Corless began to go out into the field to talk to BCI’s customers and discuss with them whatever problems that they might have had with BCI’s products. At that time, BCI was primarily selling Omega Bands, and so Corless became educated in the above-mentioned problems involved in the inflation of tubeless tires. He came to the conclusion that there had to be a “better answer” to those problems than the mechanical sealing devices then in use, and he set out to find it. Corless’ experiments resulted in the issuance to him of the three patents in suit. He assigned his rights under the patents over to BCI, which, on June 1, 1971, granted Hennessy a nonexclusive license under the then-issued ’469 patent, the then-pending application which shortly thereafter issued as the ’705 patent, and the about-to-be-filed application which matured into the ’871 patent. Subsequently, in July, 1971, B & J acquired BCI’s entire right, title and interest in and to the patents in suit. The Coats Company, Inc. (Coats), a subsidiary of Hennessy, is its supplier and manufacturer of tire changing machines. Coats .tire changing machines are sold by Hennessy with or without tubeless tire inflation apparatus, according to its customers’ specifications. Hennessy also markets the Coats-made tire inflation apparatus parts sold separately for field installation on Coats brand tire changers. These OEM machines and kits are the devices accused of infringement in this suit. PATENT VALIDITY The ’469 Patent The application that lead to the issuance of the ’469 patent was filed on February 16, 1969. The application was amended in January, 1970, before the Patent Office had taken any action thereon, at the request of Corless. The patent was issued without further amendment on January 5, 1971, all of its claims being allowed. Finally, in June of 1971, BCI, then the holder of the patent, filed a disclaimer with the Patent Office in which it disclaimed several claims of the issued patent. Hennessy challenges the validity of this patent on two grounds. First, it alleges that the ’469 patent is invalid under 35 U.S.C. § 102 for anticipation. Second, it maintains that the claims of the patent are invalid under 35 U.S.C. § 103, because they are obvious in light of the prior art. Before evaluating the merits of these arguments, the court deems it proper to review certain general principles of patent law. 35 U.S.C. § 282 states that [a] patent shall be presumed valid. Each claim of a patent . . . shall be presumed valid independently of the validity of other claims . . . . The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity. This statutory presumption is not conclusive; rather, it shifts the burden of proof to the party attacking the validity of the patent. Republic Industries, Inc. v. Schlage Lock Co., 592 F.2d 963 (7th Cir. 1979). In general, clear and convincing evidence of invalidity is necessary to overcome this presumption. Laser Alignment, Inc. v. Woodfruff & Sons, Inc., 491 F.2d 866, 871 (7th Cir.), cert. denied, 419 U.S. 874, 95 S.Ct. 135, 42 L.Ed.2d 113 (1974). The presumption is strengthened when the record before the Patent Office Examiner, the file wrapper, discloses that the prior art references, or equivalent references, relied on by the party claiming invalidity were considered by the Examiner during the prosecution of the application for a patent. Id. On the other hand, the presumption does not exist against evidence of prior, non-equivalent, art not before the Patent Office, The Allen Group v. Nu-Star, Inc., 575 F.2d 146 (7th Cir. 1974) (per curiam), and invalidity need only be proven in such cases by a preponderance of the evidence. The burden of proof imposed upon the party attacking a patent’s validity is similarly reduced when allowed claims are subsequently disclaimed. Hoover Co. v. Mitchell Manufacturing Co., 269 F.2d 795 (7th Cir. 1959); 4 Deller’s Walker on Patents § 286, at 237 (1965). With these principles in mind, the court will turn to the arguments raised by Hennessy against the validity of the ’469 patent. 35 U.S.C. § 102 provides, in pertinent part, as follows: A person shall be entitled to a patent unless— (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States In Namirowski v. Nabisco, Inc., 421 F.Supp. 349 (N.D.Ill.1976), aff’d mem., 567 F.2d 392 (7th Cir. 1977), cert. denied, 435 U.S. 971, 98 S.Ct. 1612, 56 L.Ed.2d 62 (1978), this court concluded that a purported invention is anticipated, hence unpatentable under 35 U.S.C. § 102, “only where, except for insubstantial differences, [a previous patent, printed publication or domestic product] contains all of the same elements in the same fashion to perform an identical function.” 421 F.Supp. at 353 (quoting Popeil Bros., Inc. v. Schick Electric, Inc., 494 F.2d 162, 164 (7th Cir. 1974)) (emphasis supplied in Namirowski). Thus, as the first step in deciding whether the ’469 patent is void for want of novelty, the court must identify the challenged claims of said patent, and identify the elements thereof. The ’469 patent consists of 22 claims. Three of these are independent claims. The others are dependent claims. Claim 1 discloses an [apparatus for inflating tubeless tires on a vehicle wheel comprising an annular tube of larger diameter than the wheel to be received over the wheel adjacent to the rim thereof, orifice means around the inner periphery of the tube for injecting a substantially continuous ring of air under pressure through the space between the wheel rim and the bead of a non-inflated tubeless tire mounted on a wheel, and inlet means on the tube for supplying air under pressure to the interior of the tube. Claims 2-9 and 11-15 are dependent on claim 1. Claim 2 describes the angle at which the orifice means are to be aimed. Claims 3 and 4 describe different forms that orifice means might take. Claim 5 provides that the annular tube may be of a variable diameter. Claim 6 describes one such tube, a discontinuous ring whose ends are joined by a turnbuckle. Claim 7 discloses the apparatus defined in Claim 6 equipped with orifice means designed specifically so as to direct their streams of air into “the peripheral space occupied by the turnbuckle”. Claims 8 and 9 describe another type of variable-diameter tube, a discontinuous tube provided with telescoping ends. Finally, Claims 11-15 provide for varying cross-sectional shapes in which the annular tube could be fashioned. Independent claim 16 discloses [t]he method of inflating a tubeless tire on a vehicle wheel comprising the steps of mounting a noninflated tubeless tire on a vehicle wheel, injecting air under pressure as a substantially continuous ring into the tire peripherally around the tire through the space between the wheel rim and the adjacent tire bead to partially inflate the tire and cause the tire bead to almost make sealing contact with the wheel rim, and then completely inflating the tire by injecting air under pressure through the conventional tire valve. Claims 17-19 are dependent upon claim 16. Claim 17 provides that the injection of air under pressure through the window shall cease substantially simultaneously with the commencement of the injection of air under pressure through the valve stem. Claim 18 modifies claim 17 by disclosing that the accomplishment of the simultaneous switch from injection via the annular ring to injection via the valve stem shall be achieved by use of a valve deyice. Claim 19 elaborates upon the method described in claim 16 by providing for a reservoir of air under pressure as a source for the initial injection of air into the tire via the annular ring. Claim 21, the third and last independent claim in the ’469 patent, discloses an [a]pparatus for inflating tubeless tires on a vehicle wheel comprising an annular tube of larger overall diameter than the wheel to be received on the wheel, orifice means around the periphery of the tube and spaced radially outwardly from the periphery of the wheel for injecting air under pressure as a substantially continuous ring through the space between the wheel rim and the bead of a non-inflated tubeless tire mounted on the wheel, and inlet means on the tube for supplying air under pressure to the interior of the tube. Claims 22, 23, and 26 are dependent upon claim 21. Claim 22 describes the inner diameter of the annular tube as larger than the diameter of the wheel, such that the tube may be received over the wheel and adjacent to its rim. It further provides that when the apparatus appears in this form, the orifice means should be located on the inner periphery of the tube. Claim 23 defines a version of claim 21 in which the outer, but not the inner, diameter of the annular tube is greater than the diameter of the wheel. Claim 26 provides that the apparatus described in claim 26, which is designed such that the annular tube rests on the wheel rim during tire inflation, should be equipped with an auxiliary device to insure that the tube is actually in sealing engagement with the wheel rim. Hennessy argues that claims 1 and 16, and therefore the claims dependent upon them, are unpatentable because they are anticipated by United States Patent 2,874,-760, entitled “Bead Seating Device For Tubeless Tires”, filed June 9, 1954, and issued to Walter F. Bishop on February 24, 1959 (Bishop). The Bishop patent discloses a bead seating device that operates through the use of a mechanical seal. Specifically, Bishop teaches that a tubeless tire whose beads are not in sealing contact with the wheel rim can be inflated by means of a device composed of a rigid plate so fashioned as to be able to be positioned in airtight sealing contact with the wheel rim; an extension thereof jutting outwards from the top of that plate over the sidewall of the tire that it is sought to seat; and a flexible rubber membrane that is connected on one end to the aforementioned extension of the rigid plate, and that descends from thence to the tire sidewall, the membrane being designed so as to be able to achieve airtight sealing contact with said sidewall. Bishop’s specifications describe the inflation of such a tire with this device as involving the injection of air under pressure into the previously (mechanically) sealed space bounded by the patented device and the cavity formed by the wheel and the tire along the entire circumference of the window, thereby seating the beads and inflating the tire. The file wrapper of the ’469 patent discloses that the Patent Office Examiner considered Bishop during the prosecution of the application for the ’469 patent. Thus, Hennessy must overcome the presumption of validity if it is to prevail on the issue of anticipation. The court holds that Hennessy has failed to prove that Bishop is a prior patent which contained all the elements enumerated in [claims 1 and 16 of the ’469 patent], which performed the same function in the same way as the [device] defined in those claims, and whose [purpose was] to perform the same function as was performed by the device described in those claims. Namirowski v. Nabisco, Inc., 421 F.Supp. at 354 (citations omitted) (emphasis added). The two devices plainly were intended to perform the function of tire bead seating. However, the other portions of the standard enunciated in Namirowski are not met in this case. Bishop lacks the annular tube called for in claim 1. More importantly, there exists a profound structural difference between Bishop and the ’469 patent: Bishop requires the existence of a sealing mechanism as part of its bead seating apparatus, while the ’469 patent requires no mechanical sealing mechanism at all. This structural difference is reflected in a methodological distinction — before Bishop can be used to seat the bead of and inflate a “problem” tubeless tire, its disclosure requires the mechanical creation of a relatively airtight chamber enclosing the window, tire cavity, and wheel, whereas no such initial seal need be created before the bead seating and inflation process commences according to the teachings of the ’469 patent. This, taken together with the evidence before the court as to how the apparatus disclosed by the ’469 patent works, suggests to the court that Bishop and the ’469 patent operate on the basis of fundamentally different principles. Hennessy has not presented the court with evidence which would cause it to reach any other conclusion with regard to the question of whether the devices perform the same function “in the same way”. Accordingly, Hennessy has failed to prove that the challenged claims of the ’469 patent are unpatentable under 35 U.S.C. § 102. Hennessy also argues that the ’469 patent is invalid under 35 U.S.C. § 103. The defense of obviousness raises the question of inventiveness, as opposed to the question of novelty, upon which the defense of anticipation turns. As the court noted in Illinois Tool Works v. Sweethart Plastics, Inc., 436 F.2d 1180, 1183 (7th Cir.), cert. denied, 403 U.S. 942, 91 S.Ct. 2270, 29 L.Ed.2d 722 (1971), [t]he obviousness test is somewhat broader in its restrictions on the issuance of valid patents, and prior art which does not render an invention anticipated may nonetheless make it obvious. (footnote omitted). 35 U.S.C. § 103 provides that [a] patent may not be obtained . if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. In Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), the Supreme Court outlined the proper analysis to be followed when obviousness is at issue. While the ultimate question of patent validity is one of law [citation omitted], the § 103 condition, which is one of three conditions, each of which must be satisfied, lends itself to several basic factual inquiries. Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. 383 U.S. at 17, 86 S.Ct. at 694. “[T]he Graham analysis [is] the exclusive means by which to measure nonobviousness under section 103.” Republic Industries, Inc. v. Schlage Lock Co., 592 F.2d 963, 972 (7th Cir. 1979). Hennessy refers the court to the following prior art as relevant to its claim of obviousness: United States Patent 2,874,-759, entitled “Bead Seating and Inflating Device for Tubeless Tires”, filed January 12, 1953, and issued to E. G. Ranallo on February 24, 1959 (Ranallo); United States Patent 2,874,761, entitled “Bead Seating and Inflating Device for Tubeless Tires”, filed August 26, 1954, and issued to A. J. Varvaro on February 24, 1959 (Varvaro); United States Patent 2,936,827, entitled “Apparatus for Mounting and Inflating Tubeless Tires”, filed June 20, 1955, and issued to M. B. Riggs on May 17, 1960 (Riggs); and United States Patent 2,500,-015, entitled “Automatic Tubeless Tire Bead Seating and Inflation Machine”, filed March 10, 1955, and issued to H. S. Harrison on August 18, 1959 (Harrison). The file wrapper of the ’469 patent reveals that Bishop and Harrison were considered by the Examiner during the prosecution of the application for the patent. However, the other prior art mentioned above, the disclosures of which the court has examined, is no more pertinent than the two references that were considered by the Examiner: all of the above prior art references, including Bishop and Harrison, rely for their efficacy upon the creation of an initial mechanical seal in order to seat the beads of and achieve the inflation of a tubeless tire whose sidewalls do not engage the wheel in sealing contact, and they all describe and claim only apparatus incorporating and methods employing mechanical sealing devices. Therefore, it is only necessary for the court to refer to the disclosures of Bishop, which Hennessy considers to to be by far the most pertinent prior art, in order to describe “the scope and content of the prior art”. As summarized above, the teaching of Bishop is that one could seat the beads of and inflate a “problem” tubeless tire by creating a mechanical seal around the tire cavity, wheel, and window, and then injecting air under pressure into this sealed chamber. Hennessy claims that the progression from Bishop’s device to the apparatus disclosed in the ’469 patent would have been obvious to a person skilled in the art of tire inflation because Bishop provides for the creation of “a temporary barrier, but not a seal”. Before turning to the obviousness question, the court deems it appropriate to note its disagreement with this characterization of the disclosure of Bishop. The claims of the Bishop patent require the mechanical creation of an initial seal prior to inflation of the tire by the injection of air under pressure into the tire cavity. Further, while it is true that the Bishop specifications state that one portion of the sealing mechanism described in the patent may consist of a semipermeable rubber membrane, nothing in the statement explicating the purpose and function of this avatar of Bishop’s sealing apparatus casts any doubt upon the fact that Bishop teaches that the creation of an initial mechanical seal is essential to the operability of the Bishop apparatus. Indeed, that statement, upon which Hennessy relies so heavily, underlines this fact. Prior to resolving the obviousness issue, it is incumbent upon the court to ascertain what the level of ordinary skill in the art of tubeless tire inflation was at the time the device disclosed in the ’469 patent was invented. Hennessy has submitted no evidence as to the level or kind of education or the type of work experience typical among practitioners of this art. Rather, it has elected to describe the level of ordinary skill in the art only in terms of a hypothetical person “working in his shop with the prior art references — which he is presumed to know — hanging on the walls around him”. Application of Winslow, 365 F.2d 1017, 1020, 53 CCPA 1574 (1966). It is the court’s conclusion that Hennessy has failed to prove that the ’469 patent is invalid for obviousness. It introduced no expert testimony to that effect at trial. Indeed, one of Hennessy’s witnesses, Charles Rummler, whose testimony the court finds credible in this limited regard, acknowledges that the Corless device disclosed in the ’469 patent operates in a manner “directly contrary to the teachings of the prior art”, including Bishop. Upon its own review of the record before it, the court is of the opinion that Corless’ invention was not an obvious outgrowth of the teachings of the prior art, but the result of his totally unprecedented approach to the problem of the inflation of “problem” tubeless tires. As Hennessy has not prevailed on either of its arguments against the validity of the ’469 patent, the court rules that that patent is valid. The ’705 Patent The ’705 patent matured from an application filed on November 16, 1970, at which time the application for what subsequently became the ’469 patent was still pending in the Patent Office. After the issuance of the ’469 patent, on July 29, 1971, a terminal disclaimer was filed with regard to the former application, disclaiming “the terminal part of any patent granted on [that application] which would extend beyond the expiration date of [the ’469 patent]”. The application was amended before the Patent Office had taken any action thereon, at the request of the applicant, which request was made in late July, 1971. The Patent Office Examiner, who was the same Examiner before whom the ’469 and ’871 patents were prosecuted, disallowed two claims of the application and allowed the other claims on November 3, 1971. After receiving a communication sent by Corless’ attorney and filed with the Patent Office on March 17, 1972, the Examiner reconsidered his earlier action and decided to allow all of the claims of the amended application. The ’705 patent was issued on July 11, 1972. Hennessy challenges the validity of the allegedly infringed claims of the ’705 patent on three grounds. First, it alleges that the claims are invalid under 35 U.S.C. § 101 on grounds of double patenting. Second, it maintains that these claims are invalid under 35 U.S.C. § 102 for anticipation. Third, it asserts that these claims are invalid under 35 U.S.C. § 103 for obviousness. The ’705 patent contains thirteen claims, including three independent and ten dependent claims. Claim 1, upon which claims 2-11 are dependent, discloses an [apparatus for inflating tubeless tires on a vehicle wheel having oppositely disposed rim portions comprising tire bead seating apparatus including an annular tube of larger diameter than the wheel to surround a rim of the wheel, structure extending radially inwardly of said tube for abutment against said rim to position the apparatus with respect to the wheel, orifice means around the inner periphery of the tube for injecting a substantially continuous ring of air under pressure through the space between the wheel rim and the bead of a non-inflated tubeless tire mounted on the wheel, and inlet means on the tube for supplying air under pressure to the interior of the tube; said tire bead seating apparatus having no mechanical sealing element capable of sealing a gap between the wheel and the tire. Claims 2-4 describe the above-mentioned “positioning” means, which also constitute handles. Claims 5-10 elaborate upon various aspects of what claim 1 refers to as the “inlet means”. Claim 11 reveals a form of the annular tube in which the tube is made up of a plurality of detached arcurate segments, the ends of each of which are sealed, and each of which is equipped with its own inlet through which to receive air under pressure. Claim 12, the second of the ’705 patent’s independent claims, discloses [t]he method of inflating a non-inflated tubeless tire on a vehicle wheel comprising the steps of applying an annular orifice structure to one side of a tire and wheel assembly, positioning the orifice structure with respect to the wheel by abutment of structure extending radially inwardly from said orifice structure against the wheel, injecting air under pressure from said orifice structure into the tire peripherally around the wheel through the space between the wheel rim and the tire bead in sufficient amounts, without using a mechanical seal, so that more air is injected into the tire than may escape with the result that the tire will be expanded to cause the tire beads to sufficiently close on the wheel rims to permit complete inflation through the conventional tire valve, and then completely inflating the tire by injecting air under pressure through the conventional tire valve. Claim 13, the third independent claim of the ’705 patent, discloses an [a]pparatus for inflating tubeless tires on a vehicle wheel having oppositely disposed rim portions comprising tire bead seating apparatus including an annular orifice structure having orifice means provided around a periphery of larger diameter than the diameter of a wheel to surround the rim of a wheel for injecting air under pressure around the periphery of the wheel through the space between the wheel rim and the bead of a non-inflated tubeless tire mounted on the wheel in sufficient amounts, without using a mechanical seal, so that more air will be injected into the tire than may escape with the result that the tire will be expanded to cause the beads to sufficiently close on the wheel rims to permit complete inflation through the conventional tire valve, structure extending radially inwardly of said annular orifice structure for abutment against said wheel to position the apparatus with respect to the wheel, and inlet means on said orifice structure for supplying air under pressure to the orifice means. Claims 1, 12 and 13 are the allegedly infringed claims, and it is the validity of these claims that is challenged by Hennessy. The doctrine of double patenting grows out of the recognition by the Supreme Court in Miller v. Eagle Manufacturing Co., 151 U.S. 186, 14 S.Ct. 310, 38 L.Ed. 121 (1894), of the principle that “no patent can issue for an invention actually covered by a former patent”. 151 U.S. at 198, 14 S.Ct., at 315. It is a set of judicially created rules, Ropat Corp. v. McGraw-Edison Co., 535 F.2d 378, 380 (7th Cir. 1976); Application of Braithwaite, 379 F.2d 594, 602 (Cust. & Pat.App.1967) (Smith, J., concurring), which act to deny the patentability of co-pending applications regarding an invention upon which a patent has already been granted to the same inventor. See generally, 1 Deller’s Walker on Patents § 62 (2nd ed. 1964). Double patenting analysis therefore is employed where an application that satisfies the test of patentability under 35 U.S.C. §§ 102, 103 has been filed by a person who already holds a relevant patent. As the Court of Customs and Patent Appeals observed in Application of White, 405 F.2d 904, 906, 56 CCPA 870 (1969), such a subsequent invention will fall into one of three categories: unobvious, obvious, and same invention. The subsequent application may represent an attempt to twice claim the same invention. Or it may be an attempt to patent an obvious improvement or modification of a claim patented in the first-to-issue patent. Finally, it may be that the new invention constitutes an unobvious variant of the claims of the previously-issued patent. The impact of the double patenting doctrine on an invention varies according to which of the three categories the invention falls into. See generally Application of Thorington, 418 F.2d 528, 57 CCPA 759 (1969); Application of Eckel, 393 F.2d 848, 55 CCPA 1068 (1968). If the invention is “únobvious”, in the sense discussed in the preceding paragraph, there can, of course, be no double patenting. Application of White, 405 F.2d at 906. If the invention is the “same invention”, the “same invention” aspect of double patenting analysis will apply. This branch of the double patenting doctrine has been anchored in 35 U.S.C. § 101, which provides that [wjhoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor . (emphasis added). It is intended to bar an inventor from obtaining multiple patents on a single invention. The filing of a terminal disclaimer does not avoid the effect of this type of double patenting. If the invention is “obvious”, within the meaning of the previous paragraph, the “obviousness” type of double patenting analysis will apply. This branch of the doctrine has no statutory basis. Rather, it is a judicially-created doctrine grounded in public policy . . . and primarily intended to prevent prolongation of monopoly. Application of Thorington, 418 F.2d at 534. Accordingly, this type of double patenting objection can be defeated by a terminal disclaimer. Id. Because that portion of the life of the ’705 patent extending beyond the expiration date of the ’469 patent has been disclaimed, Hennessy can only challenge the validity of the ’705 patent under the “same invention” aspect of double patenting doctrine. Thus, the question before the court is whether claims 1, 12, and 13 of the ’705 patent constitute the “same invention” that was claimed in the ’469 patent. The parties agree that the law governing the definition of “same invention” is to be found in In re Eckel, 393 F.2d 848, 55 CCPA 1068 (1968), and its progeny. At least under the circumstances of this case, the court concurs. As refined in Application of Vogel, 422 F.2d 438, 57 CCPA 920 (1970), and Application of Avery, 518 F.2d 1228 (Cust. & Pat. App.1975), the test is one of cross-readability. This test, in the words of the Vogel court, asks whether one of the claims could be literally infringed without literally infringing the other. If it could be, the claims do not define identically the same invention. In assessing Hennessy’s charge that claims 1, 12, and 13 of the ’705 patent are invalid for double patenting, the court bears in mind the fact that the presumption of validity is applicable in this context. TSC Industries, Inc. v. International Harvester Co., 406 F.2d 53 (7th Cir. 1968). Moreover, the court notes that the presumption is strengthened where, as here, the Examiner who approved the issuance of the later patent not only referenced to the earlier-issued patent, but was the same Examiner who allowed the latter patent. The court holds that Hennessy has not succeeded in proving that the claims are invalid for double patenting. The claims of the ’469 patent could be infringed without literally infringing claims 1 and 12 of the ’705 patent by manufacturing and using an annular bead seater which is not equipped with the positioning/holding apparatus disclosed in the latter patent. Claim 13 of the ’705 patent is not cross-readable on the claims of the ’469 patent both for this reason and because claim 13 does not require that the bead seating apparatus consist of an annular “ring”. The court also rejects Hennessy’s anticipation and obviousness attacks upon the ’705 patent. 35 U.S.C. § 102(b) does not represent a statutory bar against the patentability of the claims of the ’705 patent. The device disclosed in the ’469 patent was not first publicly demonstrated or sold until mid-April, 1970, less than one year prior to the date of the filing of the application that matured into the ’705 patent. Hennessy does not suggest, and the court does not find, that any of the claims subsequently added to this application by amendment are not entitled to enjoy the effective filing date of November 16, 1970. Thus, none of the circumstances mentioned in section 102(b) is present in this case. Illinois Tool Works, Inc. v. Solo Cup Co., 461 F.2d 265 (7th Cir.), cert. denied, 407 U.S. 916, 92 S.Ct. 2441, 32 L.Ed.2d 691 (1972), teaches that the ’469 patent does not constitute prior art with regard to the ’705 patent within the meaning of 35 U.S.C. § 102(a). Nor is it considered to be prior art with regard to the ’705 patent for the purposes of 35 U.S.C. § 103. See, e. g., Nashua Corp. v. RCA Corp., 431 F.2d 220 (1st Cir. 1970); Weatherhead Co. v. Drillmaster Supply Co., 227 F.2d 98, 101 (7th Cir. 1955); Application of Braithwaite, 379 F.2d 594, 600 n. 4 (Cust. & Pat.App.1967); Application of Braithwaite, 379, F.2d 594, 603 n. 5 (Cust. Pat. App.1967) (Smith, J., concurring); Application of Robeson, 331 F.2d 610, 612 n. 2, 51 CCPA 1271 (1968). Hence, the only prior art reference with regard to the ’705 patent that was not available as prior art for the purposes of sections 102(a) and 103 in determining the validity of the ’469 patent is United States Patent 3,669,175, entitled “Bead Expander”, filed September 29, 1969, and issued to B. L. Sorenson, et al., on June 13, 1972. This patent, like the prior art relative to the ’469 patent, teaches the necessity of a mechanical seal to the bead seating of “problem” tubeless tires. Accordingly, Hennessy’s anticipation and obviousness arguments fail for the same reasons that similar contentions concerning the validity of the ’469 patent failed. Therefore, the court finds that Hennessy has not successfully met its burden of proving claims 1, 12, and 13 of the ’705 patent invalid. The ’871 Patent The ’871 patent, which is a continuation-in-part of the ’705 patent, matured from an application filed in the Patent Office on July 26, 1971. The application was amended at the request of the applicant, which request was made by a letter filed on September 5, 1972, before the Patent Office had taken any action thereon. On September 15, 1972 and September 25, 1972 the Patent Office Examiner, who was the same Examiner who had already approved the ’469 patent and the ’705 patent, rejected several independent claims of the application as obvious in light of the ’469 patent. On November 9, 1972, Corless’ assignee, B & J, filed an amendment adding new specifications and proposed claims 14-17 to his application and requesting a declaration of interference with respect to the added claims. On the same date, B & J also filed a terminal disclaimer disclaiming the “terminal part of any patent granted on the above-identified application which would extend beyond the expiration date of [the '469 patent].” After proposed claims 14-17 prevailed in the interference proceeding with certain claims of United States entitled “Improved Tire Bead Seater”, Patent 3,683,991, filed February 11, 1971 and issued to F. H. Ruhland on August 15,1972, the Examiner allowed all of the claims except proposed claim 15 on January 9, 1973. He rejected that claim and demanded the deletion of a portion of the specifications that had been added to the application in the amendment dated November 9, 1972. This language was rejected by him on the ground that it was impermissibly directed to “new matter” under 35 U.S.C. § 132. By means of a letter filed February 1, 1973, the offending claim and specification language were deleted from the application, and the ’871 patent was issued on April 23, 1974. As issued, the ’871 patent contains 16 claims. These include four independent and nine dependent apparatus claims and two independent and one dependent method claims. Claims 1-3 were originally filed in the Patent Office as claims 12-14 in Corless’ application that matured into the ’705 patent. They were deleted from that application by the claimant’s amendment filed July 29, 1971. The remarks accompanying that letter requesting the Patent Office to amend the application explained that “[c]laims 12-14 have been cancelled because the structure recited therein is being disclosed and claimed in a Continuation in Part Application”. Claim 1 discloses an [ajpparatus for inflating tubeless tires on a vehicle wheel having oppositely disposed rim portions comprising a tire mounting device including a base, means on said base to receive a vehicle wheel, clamp means for engaging the wheel, said device including means for mounting and de-mounting tires on a wheel held by said clamp means, tire bead seating apparatus on said base including an annular tube of larger outer diameter than the wheel to surround the lower rim of a wheel set onto the base, orifice means around the inner periphery of the tube for injecting a substantially continuous ring of air under pressure through the space between the wheel rim and the bead of a non-inflated tubeless tire mounted on the wheel and inlet means on the tube for supplying air under pressure to the interior of the tube. Claim 2 defines the above-mentioned clamp means and inlet means and characterizes the annular tube as a series of discrete arcuate segments arranged in a circular pattern. Claim 3 adds a mechanism to the apparatus described in claim 1 which could move the apparatus towards or away from the wheel and tire assembly. Claim 4 is an independent apparatus claim, upon which claims 5-9 are dependent. It discloses an [a]pparatus for inflating tubeless tires on a vehicle wheel having oppositely disposed rim portions, comprising a tire mounting device including a base, means on said base to receive a vehicle wheel, said device including means for mounting and de-mounting tires on a wheel tire bead seating apparatus on said base including an annular orifice structure including orifice means provided around a periphery of larger diameter than the diameter of a wheel to surround the lower rim of a wheel set onto the base for injecting air under pressure around the periphery of the wheel through the space between the wheel rim and the bead of a noninflated tubeless tire mounted on the wheel in sufficient amounts, without using a mechanical seal, so that more air will be injected into the tire than may escape with the result that the tire will be expanded to cause the tire beads to sufficiently close on the wheel rims to permit complete inflation through the conventional valve, and inlet means on said orifice structure for supplying air under pressure to the orifice means. Claim 5 characterizes the orifice structure of claim 4 as an annular tube. Claims 6 and 7 modify claim 4 in the same way that claims 2 and 3 modify claim 1. Claim 8 adds a bead breaking structure to the apparatus defined in claim 4, and further describes the orifice structure as a ring-like tubular passageway provided with a gap through which the bead breaking structure may pass. Claim 9 teaches the addition of a shelf structure, equipped with’ an orifice structure in the form of an annular passageway on its periphery, to the top of the base of the mounting device. Claims 10 and 11 are two of the three method claims of the ’871 patent. Claim 10 teaches [t]he method of inflating a tubeless tire on a vehicle wheel comprising the steps of mounting a vehicle wheel and non-inflated tubeless tire assembly on a support surface of a tire mounting device, injecting air under pressure into the tire peripherally around the wheel through the space between the wheel rim and the tire bead adjacent the support surface in sufficient amounts, without using a mechanical seal, so that more air is injected into the tire than may escape with the result that the tire is expanded to cause the tire beads to sufficiently close on the wheel rims to permit complete inflation through the conventional tire valve, and then completely inflating the tire by injecting air under pressure through the conventional tire valve. Claim 11 adds to the above-recited method the step of lifting the tire so that the top bead makes contact with the wheel rim prior to the injection of air into the cavity formed by the tire carcass and the wheel. Claim 12 discloses an [a]pparatus for inflating tubeless tires on a vehicle wheel having oppositely disposed rim portions, comprising a tire mounting device including a base, means on said base to receive a vehicle wheel, said device including an orifice for injecting air under pressure through the space between the wheel rim and the bead of a non-inflated tubeless tire mounted on the wheel in sufficient amounts, without using a mechanical seal, so that more air will be injected into the tire than may escape with the result that the tire will be expanded to cause the tire beads to sufficiently close on the wheel rims to permit complete inflation through the conventional valve, and inlet means on said orifice structure for supplying air under pressure to the orifice means. Claim 13 reveals [t]he method for inflating a tubeless tire on a vehicle wheel comprising the steps of mounting a vehicle wheel and non-inflated tubeless tire assembly on a support surface of a tire mounting device, injecting air under pressure into the tire through the space between the wheel rim and the tire bead adjacent the support surface in sufficient amounts, without using a mechanical seal, so that more air is injected into the tire than may escape with the result that the tire is expanded to cause the tire beads to sufficiently close on the wheel rims to permit complete inflation through the conventional tire valve, and then completely inflating the tire by injecting air under pressure through the conventional tire valve. Claim 14, upon which claims 15 and 16 are dependent, teaches an [a]pparatus for seating the bead of a tubeless tire on the rim of a wheel and inflating the tire comprising: a. a plenum in the form of a discontinuous ring having an inlet for receiving air under relatively high pressure therein; b. a plurality of jets in communication with said plenum for forming relatively high velocity jets of air enamating from said plenum; and c. said jets being positioned for directing said jets of air into the tire between the rim and the bead.[] Claim 15 describes the plenum of claim 14 as at least partially accurate. Claim 16 discloses the presence of at least 12 jets in the apparatus disclosed in claim 14. Hennessy raises several arguments against the validity of the claims of the ’871 patent. First, it maintains that claims 12, 14, 15, and 16 are invalid under the late claiming doctrine of Muncie Gear Works, Inc. v. Outboard Marine & Manufacturing Co., 315 U.S. 759, 62 S.Ct. 865, 86 L.Ed. 1171 (1942). Second, it contends that the patent is invalid for double patenting. Third, Hennessy claims that the claims at issue are void under the doctrine of Lincoln Engineering Co. v. Stewart Warner Corp., 303 U.S. 545, 58 S.Ct. 662, 82 L.Ed. 1008 (1938). Fourth, it says that the claims are unpatentable for obviousness. In pertinent part, 35 U.S.C. 102(b) provides that a person shall not be entitled to the issuance of a patent if the invention was in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States. The late claiming doctrine of Muncie Gear holds that an inventor may not achieve by amending a pending application what he is prohibited by section 102(b) from accomplishing by way of a new application. Faulkner v. Baldwin Piano & Organ Co., 561 F.2d 677 (7th Cir. 1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1450, 55 L.Ed.2d 495 (1978). Hennessy contends that claim 12 is invalid under this doctrine because it was added by amendment to the application that ultimately matured into the ’871 patent on September 5, 1972, which is more than one year after the first sales of the device embodying the Corless inventions, which occurred in May, 1970. Hennessy also argues that claims 14-16 are invalid for late claiming on the ground that they were added to the application on November 9, 1972, which is more than a year after Hennessy publicly disclosed its discontinuous ring inflater, which disclosure occurred in September, 1971. The court will first address Hennessy’s argument concerning the validity of claims 14-16. 35 U.S.C. § 132 and 37 C.F.R. § 1.118 prohibit the introduction of “new matter” into an application by way of amendment. By allowing claims 14-16, all of which were added to the application that matured into the ’871 patent by the amendment dated November 9, 1972, the Examiner in the Patent Office clearly found them not to constitute “new matter” with respect to either the ’705 patent or the application for what became the ’871 patent. This determination is presumed to be correct. Technion Instruments Corp. v. Coleman Instruments Corp., 385 F.2d 391, 393 (7th Cir. 1967). Hennessy has not presented the testimony of any qualified experts in opposition to this determination, and the court concludes that these claims do not constitute “new matter” with respect to either the ’705 patent or the original application for the ’871 patent. Thus, there was no late claiming with regard to these claims. See, e. g., Rel-Reeves, Inc. v. United States, 534 F.2d 274, 280, 209 Ct.Cl. 595 (1976); Acme Highway Products Corp. v. D. S. Brown Co., 431 F.2d 1074 (6th Cir. 1970), cert. denied, 401 U.S. 956, 91 S.Ct. 977, 28 L.Ed.2d 239 (1971); Binks Mfg. Co. v. Ransburg Electro-Coating Corp., 281 F.2d 252, 257 (7th Cir.), cert. granted, 364 U.S. 926, 81 S.Ct. 353, 5 L.Ed.2d 265 (1960), writ dismissed, 366 U.S. 211, 81 S.Ct. 1091, 6 L.Ed.2d 239 (1961); Illinois Tool Works, Inc. v. Continental Can Co., 273 F.Supp. 94, 123 (N.D.Ill.1967), aff’d, 397 F.2d 517 (7th Cir. 1968). In regard to the Muncie Gear objection to claim 12, the court notes that the Examiner implicitly found that it, too, did not insert “new matter” into the then pending application. Again, Hennessy attempts to rebut the presumption of correctness attached to this determination solely by observing that no prior claim in any of the three patents in suit literally claimed what claim 12 claims— “an orifice”. However, once again, Hennessy has failed to rebut this presumption. The original application for the ’871 patent adequately disclosed the subject matter of claim 12. For instance, claim 4 is identical to claim 12, except that it substitutes an annular orifice structure including orifice means provided around a periphery of larger diameter than the diameter of a wheel to surround the lower rim of a wheel set onto the base for injecting air under pressure around the periphery of the wheel for the latter claim’s “an orifice for injecting air under pressure”. These differences are not significant. “Orifice means” comprehends “an orifice” — “inlet means” is used in the same application to describe one inlet. The specifications expressly state that it is not necessary to employ an annular orifice structure in order to utilize the invention disclosed in the application. The “periphery” language is plainly intended merely to reflect the fact that air to be injected into the window must be injected from a position beyond the wheel rim if a bead is to be seated without using a mechanical seal. This requirement is clearly present in the language of claim 12. Hence, the court is not convinced that the Patent Office Examiner’s conclusion that claim 12 did not constitute “new matter” with respect to the application that matured into the ’871 patent was erroneous. This does not, however, resolve the question of whether claim 12 is invalid for late claiming, because the filing date of the application that matured into the ‘871 patent, July 26, 1971, is more than twelve months after May, 1970. Consequently, late claiming will only be avoided if claim 12 is entitled, under 35 U.S.C. § 120, to enjoy the benefit of the earlier filing date of the ’705 patent, which was co-pending with the original application for the ’871 patent. The court finds that claim 12 is entitled to the benefit of an effective filing date of November 16, 1970. Technion Instruments Corp. v. Coleman Instruments Corp., 385 F.2d 391 (7th Cir. 1967), teaches that [t]o come within the purview of 35 U.S.C. § 120, the following qualifications must be met by the later patent application. 1) The same invention must be disclosed. 2) It must be filed by the same inventor. 3) It must be filed before patenting of the first application. 4) It must contain a specific reference to the earlier-filed application. If the conditions are met, the effective filing date of the later application is that of the earlier application. 385 F.2d at 393. These tests are met in this case. The application that matured into the ’871 patent, as originally filed, adequately disclosed the same invention disclosed by the then-pending application for the ’705 patent. Specifically, claim 12 of the ’871 patent describes, with two modifications, the apparatus of claim 13 of the ’705 patent. The former claim differs from the latter in that it lacks claim 13’s positioning/holding structure and contains the additional element of the modified tire mounting device. Both of these modifications were taught by the original disclosures of the application for the ’705 patent. In sum, the application for the ’705 patent, which was co-pending with the application for the ’871 patent, adequately, see Bendix Corp. v. Balax, Inc., 421 F.2d 809 (7th Cir.), cert. denied, 399 U.S. 911, 90 S.Ct. 2203, 26 L.Ed.2d 562 (1970), disclosed the same invention as that claimed in claim 12. The amendment inserting claim 12 into the application for the ’871 patent was filed by Corless’ appointed attorneys. Finally, the application for ’871 patent contained a specific reference to the co-pending application. Because claim 12 is entitled to the benefit of an effective filing date of November 16, 1970, Hennessy’s charge of late claiming must be rejected. The court concludes that the same fate must befall Hennessy’s Lincoln Engineering-based attack on claims 1-13 of the ’871 patent. These claims involve the combination of a modified tire mounting device and a tire bead seater and inflater in one apparatus. This combination had been known in the tire inflation art prior to the filing of the application for this patent, see, e. g., the above-mentioned Riggs patent, but always in the context of tire bead seating and inflation mechanisms reliant for their efficacy upon an initial mechanical seal. After revolutionizing the field of tubeless tire inflation through his invention of the device revealed by the ’469 patent, Corless naturally sought to patent that invention in combination with a tire mounting device. In Lincoln Engineering, the Supreme Court held that [t]he mere aggregation of a number of old parts or elements which, in the aggregation, perform or produce no new or different function or operation than that theretofore performed or produced by them, is not patentable invention. And the improvement of one part of an old combination gives no right to claim that improvement in combination with other old parts which perform no new function in the combination. 303 U.S. at 549-550, 58 S.Ct. at 664-665 (footnotes omitted). However, at the very least, this ruling has been severely limited by the Court’s subsequent decision in Williams Manufacturing Co. v. United Shoe Machinery Co., 316 U.S. 364, 62 S.Ct. 1179, 86 L.Ed. 1537 (1942). This court shares the view of the Second Circuit Court of Appeals that subsequent history militates against an expansive application of the Court’s reasoning in Lincoln Engineering. Jamesburg Corp. v. Litton Industrial Products, Inc., 586 F.2d 917, 924 (2d Cir. 1978), cert. denied, 440 U.S. 961, 99 S.Ct. 1503, 59 L.Ed.2d 774 (1979). Under the facts of this case, the court can see no reason to apply the doctrine of Lincoln Engineering to invalidate these claims. Any device that infringes them would also infringe one of the earlier patents. The disclaimer of that portion of the life of the ’871 patent extending beyond the life of the ’469 patent eliminates the possibility that the upholding of these claims could improperly extend Corless’ monopoly over his bead seating invention beyond the 17 year statutory limit. Indeed, the addition of the elements concerning the tire changer machine narrows rather than broadens the claims. Further, this is not a lawsuit against a contributory infringer. See, Jamesburg Corp. v. Litton Industrial Products, Inc., 586 F.2d at 924. Moreover, this case does not concern an attempt to patent a combination of which all the elements are old. Finally, all of the elements of the claims must cooperate to perform the desired end of the tire bead seating and inflation. Cf. Reese v. Elkhart Welding and Boiler Works, Inc., 447 F.2d 517 (7th Cir. 1971). Therefore, the court does not find the rule of Lincoln Engineering applicable to this case, and Hennessy’s over-claiming argument falls. Turning next to Hennessy’s double patenting objection to the ’871 patent, the court again notes that a terminal disclaimer has been filed in the Patent Office disclaiming the portion of the life of the ’871 patent extending beyond the life of the ’469 patent. Hence, the validity of the ’871 patent can only be challenged under the “same invention” aspect of the double patenting doctrine. As such, the question before the court is whether the claims of the ’871 patent are cross-readable on the claims of the ’705 patent or the ’469 patent. Upon examination of the three patents, the court finds that the claims of the ’871 patent are not cross-readable on the claims of the earlier filed patents. None of the former claims requires the “inwardly extending structure” that is an element of each of the latter claims. Moreover, with the exception of claims 14-16, each of the claims of the ’871 patent require the presence of a modified tire mounting device, which is not required by the claims of the other two patents. Accordingly, Hennessy has not proven the ’871 patent invalid for double patenting. Hennessy does not contend, and the court does not find, that the ’469 patent or the ’705 patent constitute prior art with regard to the ’871 patent, within the meaning of 35 U.S.C. § 103. Therefore, the court rejects Hennessy’s obviousness attacks on the validity of claims 1, 4, 5, 8, 10-12 and 14-16 of the ’871 patent for the same reasons that it rejected similar contentions concerning the validity of the ’469 patent. Accordingly, the court finds all of the contested claims of the ’871 patent to be valid. INFRINGEMENT 35 U.S.C. § 271(a) provides that [e]xcept as otherwise provided in this title, whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent. Infringement may be shown in one of two ways. On