Full opinion text
SUR PLEADINGS AND PROOF LUONGO, District Judge. This action consists of two complaints, one filed in 1972, and the other filed in 1975. A common issue in both is inventor-ship of the use of the chemical 2-chloro-ethylphosphonic acid as a plant growth regulator. Defendant, Amchem Products, Inc. (Amchem), is the current holder of numerous foreign and domestic patents stemming from the invention. Plaintiff, GAF Corporation (GAF), seeks, inter alia, in the 1972 action, 399 F.Supp. 647 (E.D.Pa.1975), reversed and remanded 570 F.2d 457 (3 Cir. 1978), to have Amchem declared a constructive trustee of all rights to foreign patents stemming from the invention. It claims that its employee, Dr. David I. Randall, invented the use of 2-chloroethylphosphonic acid as a plant growth regulator in 1966 and that Amchem misappropriated the invention through breach of a confidential relationship between the parties and derived its patent position from Dr. Randall’s conceptions.. In 1975, GAF filed another suit, naming individual defendants in addition to Am-chem. The 1975 suit, in part, requests similar relief in relation to United States Patent No. 3,879,188 (the ’188 Patent). It also seeks a declaratory judgment of the invalidity of the ’188 patent and states a claim under the antitrust laws. The 1975 action is affected by this trial only to the extent that GAF’s claims in that action are predicated on its claim that Dr. Randall invented the plant growth regulating use of the acid. Pursuant to my pretrial order dated April 17, 1979, the trial of this action is to be conducted in two phases: (1) the liability phase, in which will be determined the issues of (a) Dr. Randall’s alleged discovery or inventorship of the plant growth regulating use of the acid, and (b) if Randall was an inventor of the use, whether GAP is barred by laches or estoppel from claiming it, and (2) the relief phase, in which will be tried the issues of the relationship between the uses for the acid claimed in the various foreign patents and U. S. ’188 Patent and the alleged Randall discovery or inventor-ship. The liability phase of the case was tried from December 1-11,1980. Following completion of the evidence, consisting of about 1,500 pages of testimony and more than 360 exhibits, the parties submitted requests for findings of fact and conclusions of law together with memoranda of law. On pleadings, proof, and the written submissions of the parties, I make the following I. FINDINGS OF FACT A. The Parties 1. Plaintiff, GAF Corporation, is a Delaware corporation with its principal place of business in New York, New York. 2. Defendant, Amchem Products, Inc., was, at the time of the initiation of both the 1972 and 1975 actions, a Pennsylvania corporation with its principal place of business in Ambler, Pennsylvania. During the pend-ency of these proceedings, Amchem has been succeeded by Union Carbide Agricultural Products Company, Inc., a wholly owned subsidiary of Union Carbide Corporation. To obviate confusion, I will continue to refer to defendant as Amchem. 3. Dr. David I. Randall was an employee of GAF who, at all times relevant to this dispute, held the position of Senior Scientist (T 102). Although not formally a party to this dispute, Dr. Randall is claimed by GAF to have been either the sole inventor or a joint-inventor of the use of 2-ehloroethylp-hosphonic acid as a plant growth regulator. Dr. Randall died on December 20, 1979 (T 48). 4. Dr. Anson R. Cooke is currently, and was at all times relevant to this dispute, group leader of biological research in herbicides and plant growth regulators at Am-chem (T 1028-1029). He is one of the named inventors of record of the use of 2-chloroethylphosphonic acid to achieve plant growth regulation. 5. Charles David Fritz (Fritz) is an employee of Amchem. During the years relevant to this dispute he conducted various tests on chemicals submitted to Amchem for testing by other companies including GAF (T 1314). He is also listed as an inventor of the invention being contested herein. 6. Wilbur Fell Evans (Evans) is an employee of Amchem. During the period relevant to this dispute he conducted primary screening tests on chemicals submitted to Amchem for testing by other companies including GAF (T 1404). He is also one of the inventors of record of the plant growth regulating use of 2-chloroethylphosphonic acid. B. The GAF-Amchem Relationship a. The Screening Agreement 7. GAF, a chemical producer, lacked facilities to test chemicals it produced for various end uses including biological activity on plants (T 1552). Prior to 1960, it employed a consultant to screen its chemicals for agricultural uses (T 104). 8. In 1960 GAF’s management wanted to increase its research efforts in the area of screening chemicals for various end uses. Eventually GAF, dissatisfied with its consulting arrangement, explored the possibility of entering into a relationship with Am-chem for the screening of its chemicals for agricultural purposes (T 104, TX 54). Am-chem was in the business of developing agricultural chemicals and maintained facilities for screening chemicals developed by other companies for use as herbicides and plant growth regulators (TX 54). GAF also entered into screening relationships with other companies for testing the utility of its compounds for other end uses (TX 20). 9. On September 5, 1961, GAF and Am-chem entered into a screening agreement (TX 56) which was subsequently amended on June 29, 1966 (TX 311). 10. Under the terms of the screening agreement GAF would, from time to time, submit to Amchem lists of chemical compounds for possible screening. Amchem would then select from GAF’s list the chemicals which it was willing to screen. GAF would then furnish Amchem with a sample of each chemical compound which Amchem had selected. Upon receipt of the samples, Amchem would promptly “initiate a program to evaluate and test each such selected chemical as a herbicide” (TX 56, ¶ 1-2). Amchem was contractually bound to submit reports to GAF at least twice a year indicating what chemicals were still being screened (TX 56, ¶ 2). 11. The screening agreement permitted GAF and Amchem to file patent applications covering their respective inventions (TX 56, ¶¶3-4). The agreement further provided for the licensing of such patent rights by each to the other at negotiated rates (TX 56, ¶ 8-9) and envisioned that, if possible, GAF would manufacture chemicals which Amchem developed under the agreement (TX 56, 196). b. GAF’s Procedures Under the Screening Agreement 12. Within GAF the responsibility for selecting the chemicals which had been synthesized by GAF at its Central Research Laboratory (CRL) in Easton, Pennsylvania, and other facilities for submission to Am-chem and other screeners resided in Dr. Max Chiddix. During 1965-1966, Dr. Chiddix was the program manager at CRL for organic research (T 108). 13. Dr. Chiddix partially delegated the responsibility for selecting compounds for the screening programs to Joseph Copes (Copes) who was employed as a chemist by GAF at CRL (T 108, 758). 14. Copes’ task was to select samples for the respective screening arrangements to which GAF was a party (T 758). For each compound he received from the various GAF laboratories nationwide, Copes prepared a compound sheet and assigned a number with the prefix CRL (T 765). The compound sheet had two sections. The top section had noted thereon the CRL number of the compound, its chemical structure and empirical formula, its concentration, and the initials of the chemist who synthesized it as well as a reference to the page of the chemist’s notebook where the synthesis was recorded (T 767, TX 5, 20). The bottom section noted the screener to which the compound was sent and the results of that screener’s testing. (TX 20). 15. For the Amchem screening agreement, Copes attempted to formulate a list of 40 compounds a month (T 769) which he would then submit to Dr. Chiddix for his perusal and approval (T 109). 16. Dr. Chiddix and Copes used very broad criteria in selecting the compounds which would go to Amchem, i. e., that surface active agents such as detergents, and polymeric chemicals were rarely active as herbicides (T 114, 182), but any other type of chemical was viewed as a possible entrant into the Amchem screening program (T 114, 182). The only criterion that Copes developed on his own was to make a list consisting of structures as diversified as possible (T 769). 17. GAF had no express criteria for selecting compounds because it is virtually impossible to predict agricultural or biological activity on the basis of the chemical structure of a compound (T 184-185, T 1042, T 1542-43, TX 54 at 389). 18. Upon approval by Dr. Chiddix, the list was sent to GAF’s Commercial Development Department (CDD) in New York (T 110) and was thereafter forwarded to Am-chem (T 71, TX 69, TX 83). 19. Amchem did not accept all of the compounds submitted by GAF for testing (T 1040, TX 72, 86). When Amchem noted on a particular list the compounds it wished to screen, Copes would send samples of them to Amchem (T 852). c. Amchem’s Procedures under the Screening Program 20. The list prepared by GAF was sent to Dr. Cooke who selected those to be screened by Amchem. (See Finding 19). Like Dr. Chiddix at GAF, Dr. Cooke was unable to predict with any degree of certainty whether a new chemical compound would show activity (T 1042). The only guidelines which Cooke used were exclusionary ones. For example, he would not accept for screening any chemicals which were known carcinogens, mercurials, or arsenics (T 1041). The chemicals Dr. Cooke selected were then assigned a number with the prefix G. 21. The selected chemicals were put into testing programs formulated exclusively by Amchem. GAF made no recommendations as to how Amchem should conduct its screening (T 1039). 22. The GAF chemicals were subjected to primary screening tests designed to determine if a particular compound had any biological activity (T 1031). 23. Primary screening tests are conducted as follows: The compounds are dissolved in a solvent or diluting agent for application to the test plants (T 1033) (usually a mixture of different varieties of weed or crop seeds) planted in a wooden flat approximately twelve inches wide, 20 inches long and three inches deep and filled with a specially prepared soil mixture. Fertilizer is then applied to the soil at various rates depending on the season of the year and the growth rates at that time. Two tests are made on each plant to monitor the response of a compound in primary screening. In the first, a pre-emergence test, the seeds are sprayed at a predetermined rate before they germinate (T 1033, 1040-42). In separately planted flats the chemical is applied to the plants after the plants have germinated and have grown to approximately 2-3 inches in height (T 1034, 1140). Untreated control test flats are also planted with the same species as the treated flats (T 1156— 36). 24. In conducting the primary screening tests, numerous variables must be considered, including the spraying technique, the formulation and concentration of the chemical, the rate of application of the chemical to the plants, the season of the year and the amount of fertilizer to be applied to the soil (T 1033-34). 25. The treated flats are observed daily by the experimenter to determine if they are showing any variation from the control flat (T 1034). The experimenter looks for any type of biological activity he can observe (T 1043). 26. Approximately 2-4 weeks after the chemical is applied, the experimenter records his final observations on the primary screening card (T 1034, 1406 see, e. g., TX 91, 95, 102). The results are recorded pursuant to a coding system developed by Dr. Cooke in 1963 (TX 65), with activity rated on a scale ranging from 0 (no activity) to 10 (100% activity). Different types of plant activity are coded by the letters A-K (TX 65). For example, under the Cooke coding system, a rating of 4-D means that the treated plants showed 40% defoliation activity, i. e., 40% more of the leaves of all the treated plants in a species abscized (dried up and fell off) as compared to the same species in the control flat (TX 65, T 1138-39). 27. A group known as the Primary Screening Committee, headed by Dr. Cooke, meets at some point after a chemical shows biological activity in primary screening (T 1036) to discuss the primary screening results and to decide whether the compound should be moved into the secondary screening program (T 1037). 28. Secondary screening tests are designed to determine what, if any, potential commercial utility a compound has (T 1036). In secondary screening the chemical is applied to determine if it will trigger certain responses indicated by the primary screening results. The compound is applied at lower rates more closely resembling commercial applications (T 1035-1038). Those compounds which show possible commercial utility are then placed in an advanced screening program where they are tested under field conditions (T 1031-32). 29. The status of the compounds screened under the GAF-Amchem agreement was reported to Amchem at semi-annual meetings (T 1554). In addition, Am-chem submitted a written semi-annual report indicating what compounds were still in the secondary screening program at that time. (See, e. g., TX 135, 207). 30. The instances when commercial compounds have been discovered through the GAF-Amchem screening program have been rare. During the course of the screening relationship, only approximately 15% of the 4,000 chemicals submitted by GAF went into secondary screening (T 1042). Of those, only one, 2-chloroethylphosphonic acid, was commercialized (id). C. List 38 a. Submission and Testing 31. On March 3,1965, GAF submitted to Amchem a list (list 38) consisting of 43 compounds. (TX 83, 84, 85). Amchem accepted 37 of the 43 compounds for testing (compare TX 83 with TX 86). 32. Included among the compounds accepted were 2-chloroethylphosphonic acid (the acid), the pyrocatechol ester of the acid (the ester) and the dichloride of the acid (the dichloride) (TX 83, 84, T 111). The acid was coded CRL 3418 by GAF and G-996 by Amchem. The ester was coded CRL 3412 by GAF and G-994 by Amchem. The dichloride was coded CRL 3410 by GAF and G-992 by Amchem. These compounds were all initially synthesized by Dr. S. R. Buc of GAF in a program for developing reactive dyes. 33. Many of the chemicals on list 38 were also offered to other screeners (e. g., Merck and Company, Inc., Niagara Chemical, Parke, Davis & Co., and the National Institute of Health (TX 20)) in order to determine if they had utility as pharmaceutical chemicals, insecticides, agricultural fungicides, etc. 34. The compound sheets for the acid, the ester and the diehloride bore the notation that they were 100% (TX 84). In addition, at least up until sometime in January 1966 when the acid bottle was marked “not pure” (Finding 53), the labels on the bottles in which the samples of the acid and the ester were stored also bore the notation “100%”. (See TX 897, 898, T 1328-1329). The notation “100%” was not an assertion that the compound contained no impurities. Normally, there were some impurities in all the samples. The notation “100%” signified the concentration of the sample, i. e., the sample was 100% to the extent that it contained only the named compound with its normal impurities and that nothing, such as an inert material, had been added to dilute the sample (T 168-171). It was important for Amchem to know the concentration of a sample in order to determine the rates of application in the screening program (T 168). As far back as 1964, Amchem requested that GAF inform it of the compounds which were not pure in order to facilitate the formulation of the compounds for application (TX 72, see also T 174-75). 35. The acid sample sent on March 3, 1965, pursuant to list 38 was found not to be 100% in March of 1966 (see Finding 88, infra.) Tests run on the list 38 acid sample in 1972 and 1973 showed that it actually contained only 10-20% of the acid (TX 830, 851). 36. During March-May 1965, the ester, the dichloride and the impure acid samples were placed in Amchem’s primary screening program (see TX 91, 95, 102), the tests being conducted by Evans (TX 91,95,102, T 1405-1412) and witnessed by Fritz (TX 91, 95,102). 37. The dichloride, the ester and the acid all showed some defoliation activity on snapbeans in primary screening. The acid received a 4-D rating (indicating 40%) whereas the ester and the dichloride received a rating of 6-D (indicating 60%) (see TX 91, 95,102, T 1046-1052). Defoliation is a plant growth response manifested by the abscission of the plant’s leaves (T 322-323, 330). The ester was also given a rating of 10-K based on the observation by Evans of tillering of wild oats (TX 102, T 1411-1412). Tillering, the growth of additional buds from the plant stem, is a plant growth response which is an indication that apical dominance is being controlled. Apical dominance is the tendency of a plant to grow at its apex, a characteristic which inhibits the growth of lateral buds (T 317-320, 336, 339). Evans’ observation that the ester caused tillering of wild oats was significant because increased crop yields and other advantageous effects having commercial value could be achieved through control of apical dominance (T 1051-1052, 1182, 1411). 38. On May 17, 1965, the Amchem primary screening committee met and decided that the acid, the ester, and the dichloride showed sufficient biological activity to warrant placement in the secondary screening program. The acid, the dichloride and the ester were to be tested for defoliation of cotton. Because of the tillering observed during primary screening, the ester was also to be tested for control of apical dominance (TX 111, 112, T 1053, 1054). 39. Fritz ran the secondary screening tests of the acid, the ester and the dichloride for defoliation on cotton plants planted on July 28, 1965 (TX 130, 132, 134). The ester and the dichloride were applied to those plants on November 19,1965 (TX 132, 134). The acid was not applied until December 2, 1965 (TX 130 at 1). Neither the dichloride, the acid nor the ester caused defoliation of cotton plants (TX 130, 130, 134). 40. On November 29, 1965, after the defoliation tests of the ester were completed, Fritz set aside for possible reuse the cotton plants treated with the ester (T 1319,1377). Fritz often did this if a compound did not affect the cotton plants because it was very difficult to grow new cotton plants in the greenhouse (T 1376, 1377). Several da.ys after Fritz set the plants aside, he noticed that they showed increased branching and axillary stimulation, i. e., control of apical dominance (T 1180, T 1319-1320). On December 7, 1965, he recorded his observation on a secondary screening card, noting, “observation; additional leaf development over entire stem of both plants; several new flowers forming.” (TX 134, p. 2; T 1057). 41. Fritz was very excited about his discovery that the ester caused axillary stimulation on cotton plants and immediately reported his finding to Dr. Cooke and others in the screening group (T 1320). 42. Within a few days after Fritz’ observation, Dr. Cooke and Fritz decided to run immediately a secondary screening test designed to determine if the application of the ester would result in lateral branching and increased yields on tomato plants (T 1059). Dr. Cooke also planned to take a sample of the ester with him on a scheduled trip to Puerto Rico to test it for the induction of flowering in pineapples (T 1061, 1105). 43. At the time of the Fritz observation (T 1179), the secondary screening tests of the ester for control of apical dominance, which had been ordered at the May meeting as a result of Evans’ observation of the tillering of wild oats (see Finding 38), had not been run. These tests were to have been run by someone other than Fritz (T 1183). After the Fritz observation, however, Cooke assigned to Fritz the task of screening the ester for control of apical dominance. (See T 1181-1182). 44. At approximately the same time that Fritz and Cooke were deciding how to proceed with the ester, they observed the cotton plants which had been respectively treated with the dichloride and the acid in the secondary defoliation tests and found no lateral branching on either set of these plants (T 1185-1186, 1379). These observations were not recorded because they were informal and not part of a planned test (T 1186, 1381). 45. Dr. Cooke was puzzled by the fact that the acid did not exhibit the same activity as the ester, since he believed that esters of corresponding acids commonly have plant growth regulating qualities very similar to those exhibited by the free acid (T 1061, 1065). Dr. Cooke had held this belief as far back as 1950 when he wrote his master’s thesis, and observed (although he was not referring to 2-chloroethylphosphonic acid): “[ajlmost equal activity is obtained from the corresponding salt, amide, or ester [of the acid] which ‘in vivo’ [meaning within the organism] is hydrolized to the acid.” (TX 49, p. 4). On the basis of this belief Dr. Cooke instructed Fritz to conduct tests to determine if the ester was showing a synergistic response (T 1061, cf. T 1343).' A compound acts synergistically when it exhibits activity which is greater than the sum of the activity of its component parts. For example, normally where compound C consists of component A which shows 10% activity and component B which shows 10% activity, compound C should show 20% activity. If compound C shows greater than 20% activity, a synergistic response occurs (T 1072, T 1374 — 1376). In order for Fritz to determine if the ester was acting synergistically it was necessary for him to test the principal components of the ester, which were the acid and a substance known as catechol (T 374). 46. On December 10, 1965, Fritz began the secondary screening tests on the ester to determine whether it controlled apical dominance in tomato plants. Positive results were recorded on January 17, 1966 (TX 184, T 1323). 47. On December 27, 1965, there was a meeting of the secondary screening committee at Amchem. A report of this meeting, prepared by Dr. Cooke on the following day, records that the acid, the dichloride and the ester were all dropped from the secondary screening program for defoliation (TX 187, p. 3, T 1063, 1183). b. The January 4th Meeting 48. On January 4, 1966, at the semi-annual meeting held at GAF’s headquarters in New York City, Dr. Cooke reported on the status of the GAF compounds which were being tested by Amchem (T 115,1064,1554). Dr. Cooke informed the GAF representatives that the ester showed great promise for increasing crop yields through the control of apical dominance (T 116, 1015, 1556). He based his report on his and Fritz’ observations of the cotton plants and informal observations of the tomato plants that were undergoing testing at the time of the meeting. 49. Dr. Cooke also reported the negative results of the secondary screening tests of the acid, the ester and the dichloride for defoliation of cotton and informed GAF that these compounds were no longer being tested for that activity (T 1065, see T 88-92, 838, TX 191). 50. Dr. Cooke, both orally and in writing, requested that GAF supply Amchem with an additional 50 gram sample of the ester for further secondary screening. (TX 189, T 118, T 1065). Dr. Cooke also informed GAF that he wished to test as many analogs (related chemicals) of the ester as possible for activity (T 245, 1556). That GAF was to formulate these additional samples and analogs was reflective of the fact that GAF “performed ... as a technical service laboratory” for Amchem (T 720). 51. Dr. Cooke mentioned that he was puzzled by the difference in activity between the ester and the acid (T 1066). The question was raised as to whether the acid sample was in fact pure and someone from GAF said that they would determine if Amchem had been given a good sample (T 1065-1066). At trial Dr. Cooke did not identify the person who stated that he would check on the acid’s purity. Although the GAF representatives who were present at the meeting denied at trial that the purity of the acid was ever discussed (see T 92-93, 95, T 117, T 254-255), I accept as credible Dr. Cooke’s testimony in light of his and other Amchem employees’ conduct and actions both prior to and after the January 4 meeting (see T 1065, 1066 supra, Findings 45, 53, infra). I find that at the January 4 meeting, Dr. Cooke did communicate to GAF his continuing interest in the acid as it related to the ester’s activity (T 1065-1066). I find further that Dr. Cooke informed GAF that the acid was “dropped” by Amchem only insofar as it was no longer being tested for defoliation activity (T 1065-1066, see TX 207). 52. One of the GAF employees present at the January 4, 1966 meeting was Dr. David I. Randall. Dr. Randall, a senior scientist, was in charge of a research program for the synthesis of herbicides at GAF (T 102-102a). He attended the meeting because the Amchem test results were important to his research program (T 118). He also was assigned the task of synthesizing analogs of the ester (T 266, 1556). Dr. Randall did not actively participate in this meeting since it was his first formal exposure to the Amchem screening program (T 265). c. The Events at Amchem after the January 4th Meeting 53. When Dr. Cooke returned to Am-chem he had a discussion with Mrs. Nancy Gallagher, an Amchem chemist, and Fritz concerning the results of the meeting. Dr. Cooke informed them that the acid’s purity was suspect (T 1070, 1344, 1395) and told Fritz not to use the original acid sample in the synergistic studies they had planned in December (T 1070,1343). Shortly after this discussion, Mrs. Gallagher marked the primary screening card for the acid with the words “This is an impure sample,” (T 1395, TX 91) and Fritz noted on the label of the acid sample bottle “not pure” (T 1328, see TX 894, 895, 897). 54. Amchem continued the secondary screening of the ester over the following months. On January 10, 1966, while on a field trip to Puerto Rico, Dr. Cooke applied the ester to pineapple to determine if the ester could force the blossoming of that species (T 1068-1069, TX 202). The induction of flowering in pineapples is a plant growth response which is associated with the presence of ethylene, a plant growth hormone (see Finding 71). He had planned this test in December (Finding 42). On a return trip the following month, Dr. Cooke learned that the test failed due to the fact that he had applied the sample in a manner which killed the growing bud of the plant (T 1069). 55. On February 3, 1966, Dr. Cooke sent GAF a written Semi-Annual Report which indicated that while the ester was still being tested for control of apical dominance, the acid, the dichloride and the ester were no longer being screened for defoliation activity (TX 207). 56. On February 4, 1966, Fritz and Evans executed an invention disclosure relating to the activity of the ester. Dr. Cooke signed it as a witness (TX 211). The disclosure did not discuss the acid (TX 211, T 1120). 57. On that same day Fritz began to run the synergistic studies which he and Dr. Cooke had discussed in December (TX 208, T 1370-1373). Because the purity of the acid was suspect, only the ester and the chemical catechol were applied to the plants at this time (TX 208, 243, 244). Fritz planned to finish the synergistic tests when a pure sample of the acid became available (compare TX 243 & 244 with 263, T 1349-1351, 1370-1371). 58. Dr. Cooke requested that GAF submit an additional one pound sample of the ester in a letter to Dr. Leonard of GAF dated February 4, 1966. He also again requested that GAF submit analogs of the ester so that Amchem could be sure that it was “going with the most active compound.” In this letter Dr. Cooke also questioned the ester’s stability, pointing out that when water was added to the ester for formulation of the plant spray, the ester tended to come out of solution and became warm (TX 210). 59. On February 6, 1966, Dr. Randall began work on preparing analogs of the ester (TX 212). 60. On February 15, 1966, Dr. Leonard of GAF responded to Dr. Cooke’s inquiry concerning the stability of the ester. He wrote that his laboratory people felt that the activity observed by Dr. Cooke might have been due to the heat of solution and the compound’s limited solubility (TX 218). 61. On March 1, 1966, Dr. Cooke met with Dr. Katz of GAF at Amchem’s research farm in Ambler (T 1078). A memorandum written by Dr. Katz the following day stated in part: [S]ince both Amchem and GAF had noticed a heat of solution when aqueous solutions of this product were made, there may be the possibility that the active ingredient was not compound as submitted to Amchem. Because of this, we were also in the process of doing a definitive characterization study. (TX 235). 62. Three days later, on March 4, 1966, Dr. Mayhew, the director of GAF’s commercial development department, and George Tone, an attorney in GAF’s patent department, met with Dr. Cooke at the Amchem farm in Ambler, Pennsylvania (T 907,1080). The purpose of the meeting was to discuss the patent status of the ester and related compounds (T 1080, 1557). At this meeting Dr. Cooke discussed with Dr. Mayhew and Mr. Tone some of the observations he had made concerning the ester. He again pointed out that the ester tended to be unstable in water and speculated that some hydrolysis may have been occurring (T 1081, 1557, TX 242). According to Dr. Mayhew, Dr. Cooke also discussed the ambiguity between the activity of the ester and the acid and stated that the ester was acting synergistically or possibly that the original samples may not have been pure (T 1557). All of the participants in the meeting agreed that because they were not sure if they were working with the active component any patent application would be premature at that point (TX 242). 63. Following the Katz meeting of March 1, 1966, Dr. Randall resumed work. This was his first visible work in this area of research since February 7. (Compare TX 212 with TX 234. T 390). In the course of preparing an additional sample of the ester, Dr. Randall used a method which required the acid as an intermediate. While making the acid he discovered that the first acid sample sent to Amchem on List 38 was impure. (See Findings 86-88). On March 11, 1966 he succeeded in preparing a pure sample of the acid (TX 247). 64. On March 10,1966, before Dr. Cooke was aware that the acid was definitely impure, he used the first sample in a test for rooting of privet plants (TX 328). 65. On March 16, 1966, Dr. Randall personally delivered the pure acid sample [assigned the number CRL 3418A by GAF and G996B by Amchem (TX 260, 263)] to. Dr. Cooke (T 1084). He also delivered an additional sample of the ester and two of its analogs (T 1087, TX 254, 256, 259). 66. Dr. Randall’s determination that the original acid sample was impure confirmed Dr. Cooke’s suspicions as to the authenticity of the initial sample and provided an explanation for the previously unexplained difference between the activity of the acid and the ester (T 1206). 67. Shortly after the pure acid sample was received, Dr. Cooke instructed Fritz to set up a test to determine if the plants treated with the acid showed an epinastic response (T 1157, TX 263). Epinasty is a term describing the downward slope of the petiole away from the plant stem (T 324), and is an indication that growth activity is occurring within the plant (T 1158). Fritz sprayed the tomato plants with the pure acid on March 29, 1966. Additionally, in the same test, he sprayed the plants with two ester samples, a 50-50 combination of the new acid and catechol and two analogs of the ester (TX 263, T 1333-1334, 1351). On April 6,1966, Fritz noted that the plants treated with the acid showed an epinastic response as did the plants treated with the acid and catechol combination, the ester and one of the analogs (TX 263). The plants were allowed to grow another month at which time a significant increase in lateral branching (indicating control of apical dominance) was observed (TX 265). Fritz viewed the March 29th application of the acid, ester and catechol as the synergistic test which he had been unable to run in February (see Finding 57) due to the unavailability of a pure acid sample (T 1351). The results of this test, indicating the comparative effects of the compounds, were recorded on May 5, 1966 (TX 265). 68. During early April Fritz retested the dichloride sample (TX 268, 270). When initially tested the dichloride had been formulated with ethyl alcohol (T 806, 1172). In the retest Fritz formulated the dichloride with water and, on application to plants, this compound induced an epinastic response (TX 270). The reason for the activity in the second test as compared to the first test was that the dichloride hydrolized to the acid in water whereas it had not done so when mixed with ethyl alcohol (T 1172). Fritz tested the dichloride because he was informed by Dr. Cooke and/or Mrs. Gallagher that the dichloride should be considered an analog of the ester- (T 1359-1363). Fritz had a limited chemical background (T 1314-1315), and was unaware that he was actually testing the acid when he tested the dichloride in water (T 1359-1363). Fritz also retested the impure acid sample (T 1363, TX 268). Reflecting his limited chemical background, Fritz felt that a retest of the impure sample would have utility in determining the threshold epinastic response level of the pure acid sample (T 1363, cf. T 1162). Dr. Cooke testified that he gave Fritz “a lot of freedom” in his research program and did not know why Fritz retested the dichloride and original acid (T 1161-1163). I find that the retest of the original acid and dichloride were not run in order to prove or disprove any Randall “conception.” 69. On April 7,1966, Dr. Cooke informed Amchem’s patent department that the acid was biologically active and that the ester was not necessary for its biological activity (TX 276). Further tests subsequently confirmed the equality in activity between the ester and the acid (TX 359). It was also concluded that the ester was active because it hydrolized to the acid within the plant (T 468-469). 70. The decision was made within Am-chem to concentrate on the development of the acid as opposed to the ester because the acid was significantly less expensive to produce (TX 276, TX 300). d. The Identification of the Ethylene Response 71. During the spring and summer of 1966 testing continued on the chloroethylphosphonic compounds. At this time no one knew for certain why these compounds had such significant plant growth regulating qualities. Dr. Cooke, however, had speculated as early as December 1965 that the plants treated with the ester were manifesting an ethylene type response (T 1195-1196, 1101, 1105). Ethylene had long been known to cause desirable plant growth activity (T 315). For example, among the effects normally associated with ethylene are the control of apical dominance, ripening of fruit, induction of pineapple flowering, abscission of leaves (defoliation), and stunting, /. e., the induction of rigor in a plant to prevent lodging, i. e., the natural tendency of a plant to fall down (T 317-323, 340, see TX 792 ¶ 9). 72. The unsuccessful test for the induction of fruiting of pineapple plants which Dr. Cooke ran in Puerto Rico in February, 1966, was planned as a result of Dr. Cooke’s belief that the ester was manifesting an ethylene type response. (See T 1105, see Finding 42). Despite the failure of this test, Dr. Cooke still felt during the summer of 1966 that the chloroethylphosphonic compounds caused an ethylene type response (T 1232). During that summer a Dr. R. W. Leeper visited the Amchem farm on a job interview. During the course of the interview Dr. Cooke showed Dr. Leeper a privet hedge and told him that it had been treated with a substance which was then thought to work through the release of ethylene (T 1388). 73. In May of 1966, Dr. Cooke wrote to Tom Kirchoff of Amchem’s patent department, listing the known biological activities of the ester. At the time Dr. Cooke wrote this report he knew that the ester and acid were equal in activity and any response caused by the ester would similarly be caused by the acid (TX 276, T 1088, 1091, Finding 69). The responses noted in Cooke’s report to Kirchoff were defoliation, tillering of small grains, auxin activity, the induction of rooting, the control of apical dominance, increased branching, increased protein content, retardation of terminal growth, increased flowering and fruiting, the prevention of lodging, stimulation of germination, and hormone or epinastic effects (TX 292). Many of these effects are associated with ethylene (T 317-326, T 337-338, see also TX 480 and Finding 70). Thus, although the mechanism of action of the chloroethylphosphonic compounds was not known in May of 1966, many of the plant responses associated with ethylene were observed by that time (see T 351). 74. In October of 1966, Dick Hart, an Amchem employee charged with formulation of commercial batches of the acid, noted that the acid gave off significant amounts of gas during the course of neutralization (T 1093, 1423-1423). Hart informed Dr. Cooke who, in turn, brought the matter to Dr. Randall’s attention at GAF (T 305, T 1092-1093). Dr. Cooke requested that Dr. Randall attempt to find out why this reaction was occurring (T 1094). 75. On November 7, 1966, Dr. Randall wrote, It has been noticed repeatedly during the last several months that gas is evolved in [the acid] on treating with base. It is possible that ethylene is liberated if so this might explain its hormone activity on plants as ethylene is encountered repeatedly in various metabolic pathways and is known to have certain hormone effects. (TX 387). Dr. Randall determined that the gas evolved when the acid, reacted with base, rose to a pH slightly above pH6 which is approximately the pH of a plant. Dr. Randall then collected the gas and determined it was ethylene (TX 387, T 287-288). On November 11, Dr. Randall tested the acid for ripening of green bananas in order to prove his theory (TX 393, T 293). Dr. Randall immediately reported the fact that the acid gave off ethylene to Dr. Katz of GAF who, on November 16,1966, communicated the information to Dr. Cooke at Am-chem (T 295, TX 399). Dr. Cooke, who had also been notified earlier by Dr. Randall during a telephone conversation, thought that the ethylene response was very interesting as it confirmed his prior speculations regarding the activity of the chloroethylphosphonic compounds (T 1095). 76. After Dr. Randall determined that the acid released ethylene, Amchem began exploring the use of the acid for the ripening of fruits, a well known ethylene response (TX 408). Ripening of fruit is another manifestation of the control of apical dominance (T 322). 77. The release of ethylene from 2-chlo-roethylphosphonic acid was described by the Australian scientists, Judith A. Maynard and J. M. Swan. In an article written in February of 1963, they wrote: “2-chloroethylphosphonic acid was stable to titration with 0-ln alkali at room temperature but decomposed in 30% KOH yielding ethylene. 2-chlorodecylphos-phonic acid was found to decompose slowly at pH 4.5 and the rate of decomposition increased rapidly as the pH was increased, being already too fast to measure at pH7.” (TX 902) In a senior scientist report written in April 1967, Dr. Randall described the difference between his determination that the acid gave off ethylene and Maynard and Swan’s determination. He wrote, “we found to the contrary [of Maynard and Swan] that [the acid] was not stable to titration with NaOH. It is rather a question of rates, ethylene being evolved slowly at a pH of 4.5 and slightly lower.... [the acid] appears to be appreciably more stable against alkaline attack.” (TX 460, 750). Dr. Randall also wrote in that same report, “It was known as early as 1939 that 1000 ppm. of ethylene in air caused early and uniform flowering in pineapples. It is predictable that within a short time after Amchem’s release of literature and samples of [the acid] that plant people will suspect ethylene release as the active principle in this compound. Identification of the [acid] should be also fairly rapid.” (TX 460). The literature which Dr. Randall referred to was an information sheet prepared by. Amchem in March 1967 (TX 460 citing 451). This sheet does not list the ripening of fruit as a response (TX 451). The plant growth responses listed for the acid on this sheet were all known prior to the identification of the ethylene response (compare TX 451 with TX 292). 78. The method of applying the acid to achieve plant growth regulation was discovered well before the identification of the gas as ethylene. (See Finding 70). The identification of the gas as ethylene was essentially an explanation of that invention (T 352). Dr. Randall himself so described it (TX 387, 460). The decision by Amchem to develop and seek patent protection for the use of the acid as a plant growth regulator was made well before Dr. Randall determined the identity of the gas. (See, e. g., TX 334, 353, 367, 375, 377). D. The Contributions of Dr. Randall 79. GAF’s claims in this action are based upon what it regards as Dr. Randall’s contributions to inventing the plant growth regulating use of the acid and his identification of the ethylene response. GAF owns the rights to any inventions made by Dr. Randall during his employment pursuant to an agreement executed in 1956 (TX 50). 80. Dr. Randall was a GAF senior scientist from 1965 on. This position, the highest non-managerial job in the corporation, allowed him to select his area of research (T 102-105). Although not an expert in the field of plant physiology or agronomy (T 268),. Dr. Randall chose to develop a research program in the area of the synthesis of herbicides (T 1027). His choice of herbicides as his area of research was a linkage of his professional expertise in organic chemistry and his hobby as a gardener (T 102-103). 81. Dr. Randall was not involved in any way with the submission of the list 38 compounds to Amchem and his first formal exposure to the Amchem screening program was the January 4,1966 meeting (see Finding 52, T 628-629). Like others at that meeting, he heard Dr. Cooke report on the activity of the ester in controlling apical dominance. He also heard Dr. Cooke report that both the acid and diehloride had caused defoliation activity during primary screening (T 265). 82. Around the time of the January 4th meeting, Dr. Randall was assigned the task of preparing the additional ester sample and analogs of the ester for Amchem (T 266). He began work preparing analogs of the ester at CRL in Easton, Pennsylvania, on February 6, 1966 (TX 212, T 246). On this day he worked solely on sketching out some of the possible analogs of the ester in his notebook (TX 212 at p. 209-210, T 228-230). On February 7, 1966, Dr. Randall began to make notes indicating some possible hydrolysis products of the ester (TX 212 at p. 212, T 242). Dr. Randall’s speculation concerning the hydrolysis of the ester took place after Dr. Cooke’s February 4 letter describing the reaction of the ester in water was received by Dr. Leonard at GAF’s New York headquarters (see TX 215). 83. Dr. Randall determined that, when in water, the ester hydrolized to what is called a half or mono ester. He then speculated that, chemically, the half-ester could possibly hydrolize further to chloroethylphosphonic acid within the plant (TX 212 at 212, T 248. T 270). Immediately after this chemical speculation, he wrote: If the apical dominance is due to chlorethane [sic] phosphonic acid the catechol ester would hydrolize much easier than the aliphatic esters. (TX 212 at 212). Dr. Randall, therefore, did not, at this time, conceive that the acid could be applied independently to the plant in order to achieve control of apical dominance. His notebook entry indicates that he still believed that an ester was essential to activity and his work on this day was merely expressing a preference for a catechol as opposed to an aliphatic ester. 84. During the month of February, Dr. Randall did not tell anyone that he thought that the acid could be applied independently of the ester to control apical dominance (see T 411). No reference to this concept is made in Dr. Randall’s notebook, and no mention of this conception is made in Dr. Randall’s March 1966 monthly highlight report wherein he describes his February work on the ester (TX 231). 85. On March 1, 1966 Dr. Katz visited Amchem where Dr. Cooke informed him, inter alia, of his observations concerning the instability of the ester. (Finding 61). Dr. Katz informed Dr. Randall of these discussions. On March 2, Dr. Randall, who had done no visible work in this area since February 7, began running hydrolysis experiments on the ester (T 391-393, 399, TX 234). When Dr. Katz informed Dr. Randall of Dr. Cooke’s concerns regarding the stability of the ester, Dr. Randall did not mention that he believed that the acid was the active ingredient and that the ester was hydrolizing.to the acid (T 395). 86. During the days of March 2 to March 9, Dr. Randall ran experiments in an effort to develop a new process for making the ester (T 1463, TX 234A). These experiments, which attempted to develop the ester through an arbusov reaction, were unsuccessful (T 1463-1465). 87. At the same time that Dr. Randall was having difficulties in running the arbusov reaction he began exploring a manner of preparing the ester which required the acid as an intermediate (see TX 709, 827a). This was a viable although difficult method of preparing the ester (T 132, TX 313). GAF ultimately used this method in preparing a 20 pound sample of the ester (TX 313). 88. Dr. Randall was unsuccessful in synthesizing the acid as an intermediate on March 7 and March 10 (TX 237, 246). During the course of this work, Dr. Randall realized that the original acid sample sent to Amchem was not 100% acid. On March 11, 1966 he formulated what turned out to be a relatively pure sample of the acid (TX 247, T 377). 89. Sometime between March 11 and March 15 Dr. Randall telephoned Dr. Cooke, (T 401-402, 1082), and requested that Dr. Cooke grant him permission to visit Am-chem in order to observe and discuss the screening program. Dr. Cooke granted permission (T 1080, see T 1562). Despite Dr. Randall’s claims to the contrary, I credit Dr. Cooke’s testimony that Dr. Randall did not mention the purity of the acid or his conception during this telephone call (T 1083). Dr. Randall, however, also needed to obtain permission from Dr. Mayhew of GAF’s Commercial Development Department before he could visit Amchem (T 1561). Dr. Randall informed Dr. Mayhew that he had a number of samples, including the new acid, which he wanted to deliver to Amchem. When informed by Dr. Mayhew that that was an insufficient reason for going to Amchem, Dr. Randall responded that he wanted to see how the screening program was carried out and, on that basis, Dr. Mayhew granted permission. Dr. Randall made no mention that he considered the acid the active ingredient (T 1562) or that he considered himself to be the inventor of the plant growth regulating use of the acid. 90. On March 16, 1966, Dr. Randall brought the pure acid sample, another ester sample and two analogs of the ester to Amchem (see Finding 65). Again, despite Dr. Randall’s assertions to the contrary, I credit Dr. Cooke’s testimony that he and Dr. Cooke did not discuss the question of whether the acid alone was the active ingredient (T 1085). I find that Dr. Randall’s purpose in bringing the acid to Amchem was simply to correct the error which had been made when the non-pure sample had been delivered in 1965 (see T 1477, 1478, T 938). 91. Dr. Randall discussed his work on the ester in a senior scientist report dated March 30,1966, at which time he still manifested his belief that the activity of the ester was due to the half-ester (TX 267). He wrote, “[ajlthough at this time the action of [the ester] on plants probably is due to the half-ester, chloroethane phosphonic acid must not be ruled out. For this reason an authentic sample of [the acid] was submitted to Amchem for testing in synergistic mixtures with catechol.” (TX 267). He further wrote, “Presuming that apical dominance is not due to chloroethane phosphonic acid ... a number of phosphonates will be prepared .... ” (TX 276). Thus, at this time, even after he had established that the initial acid sample was impure, Dr. Randall was not claiming that the acid was the active ingredient. 92. Dr. Randall’s identification in November that the acid gave off ethylene explained why the acid was an effective plant growth regulator (Finding 78). 93. Dr. Randall, over the course of his career, had over 100 inventions to his credit and was very familiar with the process by which patents on those inventions were acquired (T 1451). He also was aware of the significance of his notebook references in the invention and patent processes (T 1454). He never brought his February 7, 1966, notebook to anyone’s attention prior to 1971. 94. Dr. Randall was actively involved in the formulation of GAF’s patent position from 1966 on (see TX 470, see, e. g., Findings 100-103, 106, 108). Although he inquired as to whether he could be considered an inventor of the acid in 1967, at no time prior to 1971 did Dr. Randall express a belief that he was the person who first conceived that the acid was a plant growth regulator (see Finding 89, T 276). 95. From the foregoing Findings which establish that Dr. Randall’s notebooks contain no reference to his alleged conception, and that he told no one of any conception, and that he was acutely aware of the invention and patent processes, I find that Dr. Randall did not believe that he had made an original conception that the acid was a plant growth regulator which controlled apical dominance in February-March 1966, and I find his assertions in the years 1971 until his death, that he had such a conception in 1966 as not being worthy of belief. E. GAF’s Acquiescence to Amchem’s Filing of a Use Invention for the Acid for 1966-1971 96. GAF’s perception of its patent position under the screening agreement was set out in a memorandum from Tone to his superior Robert Gottschalk on February 21, 1966. In this memorandum Tone described the procedures whereby chemicals were offered to screeners. (See also Findings 12-19 supra.) He then described the patent positions of the respective parties under such screening arrangements. He wrote In general there are two types of inventions which come out of these agreements; a) new compounds which are patentable as such, including isomers or homologs of knwn [s/e] compounds which ordinarily are not patentable but become patentable where we can establish unique utility for them, over known isomers or homologs, in agricultural or pharmaceutical applications. The second type of invention would be any specific compositions utilizing compounds which we have submitted for screening and methods for treating plants, etc. employing these compounds. This type of application patent would be available both in the case of novel compounds which are patentable per se, and also in the case of chemicals which are not patentable per se. Under the present set up it is probable that GAF would be the inventor only in the case of compounds patentable per se. Use type of inventions would probably belong to our screeners. (TX 225). The rationale behind Tone’s opinion was that since GAF normally submitted chemicals to screeners with no expectation of activity they made no inventive contribution to the discovery of the use. Thus, in such cases, the use invention would belong to the screener (T 971). Gottschalk reported Tone’s opinion to GAF’s vice president Philip Dalton on March 1, 1966 in the course of formulating an opinion that, under the facts in the instant case, the invention of the use of the acid belonged to Amchem (TX 233). This opinion was repeated many times over the following years. (See, e. g., 340, TX 467, 642, T 698). The record indicates that the GAF patent department did not tell anyone that use inventions belonged to Amchem under all circumstances (TX 642, T 959). Tone wrote a memorandum in July of 1969 which specifically stated the proposition that GAF could file for use patents if a GAF chemist submitted a chemical to Am-chem with the belief that it would yield ethylene (TX 645). Dr. Randall responded to this memorandum on August 1, explaining some scientific misconceptions that Tone was under. Thus, although Dr. Randall testified that he was under the impression that use patents always went to Am-chem, at least by July of 1969, he knew that, under some circumstances, such inventions would belong to GAF. (See TX 645, 648). 97. Amchem communicated its desire to obtain patent protection on the ester to GAF as early as March 1,1966 (TX 237, 242, T 911). At this time GAF agreed to coordinate the activities of its patent department with Amchem’s (T 911). Additionally, GAF agreed to continue work on the ester to determine its active ingredients so that Am-chem could file patents on its use (TX 242). 98. In a May, 1966 semi-annual meeting, Amchem informed GAF of its plans to develop and obtain patent protection for the plant growth regulating use of the acid (TX 296). 99. On June 29, 1966, the screening agreement was amended to give GAF a right of first refusal to manufacture and furnish GAF chemicals which Amchem decided to commercialize (TX 311). 100. GAF was receiving reports on the status of the chloroethylphosphonic compounds being tested by Amchem during the summer of 1966 (see TX 327). A meeting was planned for September 8, 1966 to discuss, among other things, the patent status of these compounds and to allow both companies to collaborate in forming their patent positions through the exchange of pertinent information (TX 334, 339). Prior to this meeting Dalton requested that Gottschalk prepare “a definitive summary and appraisal of GAF’s technical and patent position with respect to activities in connection with [the] screening program with Am-chem.” (TX 339). In response, Gottschalk wrote Dalton and informed him that Tone and Dr. Randall would prepare the requested summary (TX 33). 101. Shortly thereafter, on or around August 24, 1966, Dr. Randall and Tone met to discuss the screening program. As a result of this meeting Tone wrote that GAF would file six patent applications directed toward previously unknown chemicals and improved manufacturing processes for the ester and its related compounds. Tone opined that use patents for the ester and the acid belonged to Amchem (TX 340). 102. In addition, a memorandum was prepared by Dr. Leonard for the September 8 meeting listing the analogs of the ester which were sent to Amchem. The acid was included as an analog in this list. Dr. Randall received a copy of the list (TX 327). 103. The September 8,1966 meeting was attended by numerous high level managerial and technical employees of GAF, including Dr. Randall, Dr. Mayhew, Dr. Chiddix, Dr. Leonard and Tone (T 1455). Among those present from Amchem were Dr. Cooke and Tom Kirehoff of Amchem’s patent department (T 929). At the meeting Amchem again informed GAF that it was going to file a patent application on the use of the acid. The GAF participants present, including Dr. Randall, raised no objection to this claim and, in fact, agreed that Amchem should “endeavor to cover the use of compounds of the ... general formula [which included the acid and various esters].” (TX 353, T 1456). 104. Throughout the remainder of 1966, even after the identification of the ethylene release, GAF continued to acquiesce in Am-chem’s filing of use patents on the acid. (See, e. g., TX 400, 403, 424). 105. On February 23, 1967, the original Fritz and Evans patent application for a “Growth Regulation Process Utilizing Phosphonic Compounds” was filed. (TX 444). On October 14, 1969, Dr. Cooke was added to the application as a joint-inventor on the theory that Dr. Cooke identified the ethylene response (TX 656). At trial Dr. Cooke admitted that an affidavit he executed in support of the claim contained some errors (T 1229-1230, TX 656). 106. On March 10, 1967, Dr. Randall filed a patent proposal within GAF for a “new Process for Production of Ethylene from Beta-chloro-ethyl Phosphonic Acid.” Tone and another GAF patent attorney reviewed Dr. Randall’s claim in detail and concluded that it was not patentable because the concept that the neutralization of the acid would yield ethylene was predicted by Maynard and Swan (TX 468, see Finding 77, TX 902). Further, Tone felt it was unpatentable because “at most it is merely an explanation of how [the acid] and its esters, etc., operate in the process of'Am-chem Case 642 [the acid use case], i. e., by the generation of ethylene which is the actual plant growth regulating material.” (TX 468). 107. On May 12,1967, there was a meeting at Amchem concerning the chloroethylphosphonic compounds. At some point during that day Dr. Randall told Tone about the work he had done on the acid and inquired whether he possibly could be considered an inventor of the acid’s use. (T 934, T 274). This was the first time that Dr. Randall had ever inquired as to the possibility that he might have been an inventor of the use of the acid. (See T 1453, 1458, 1475-1476). Tone did not look at the Randall notebook of February 7 (T 981). Tone believed that a GAF employee could be a use inventor if he had submitted a chemical looking for confirmation of an expected response (T 938, 972). After listening to Dr. Randall’s story, however, Tone concluded that Randall did not submit the acid in the belief that it would work, but rather had corrected a mistake which GAF had made initially by sending Amchem an impure sample initially (T 938). I find that Dr. Randall did not claim in this conversation that when he made the pure acid sample in March of 1966 he believed it was the active ingredient (T 936). 108. On May 19, 1967, Tone wrote a memorandum to Dr. Katz stating that GAF had filed all the patent applications which it was able to file at that time (TX 470). On August 3, 1967, Dr. Randall filed a memorandum conveying the same conclusion (TX 477). 109. On November 10, 1967, Amchem informed GAF of the foreign countries wherein it was filing use patents for the acid (TX 498). Subsequently, on July 12, 1968, Amchem provided GAF with the serial numbers and filing dates relating to its foreign applications (TX 596). 110. The foregoing Findings of Fact establish that GAF acquiesced in Amchem’s filing of use patents on the acid (see, also, TX 400, 468, 477) after GAF had made investigation of and given careful consideration to its patent position. (See, e. g., 223, 225, 339, 403, 468, 477). 111. During the period of 1966-1971 neither Dr. Cooke nor anyone else at Amchem was informed that Dr. Randall had conceived the idea that the acid was an active plant growth regulator in February and March of 1966. (See, e. g., Findings 80, 85, 86, 89-102). 112. The first time that anyone at Am-chem had any knowledge that GAF intended to claim that Dr. Randall conceived that the acid was a plant growth regulator was in January of 1971 when Dalton so informed Amchem executives (T 684-85). 113. During the years 1966-1971, Am-chem spent approximately $2,000,000 in the research and development of the acid (T 1571)