Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW DAVID S. PORTER, Chief Judge: This case, which involves patent infringement in the field of magnets and magnetism, demonstrates two noteworthy points. The first is the important role played by magnets and magnetism in our economy. By one estimate, magnets, and magnetism have an economic impact in our economy equivalent to almost 1V2% of the Gross National Product (dx 380; Jacobs, The Role of Magnetism in Technology 1, 5 (General Electric Research & Development Center (November 1963)). As Jacobs points out, the basic principles of magnetism, as applied to the vital areas of electric power, communications, and information storage, “permeate our whole modern society.” Id. The second noteworthy point which this case demonstrates is one we are told John Stuart Mill emphasized over a hundred years ago — the importance of “having the meaning of a word clearly understood before using it, and the meaning of a proposition [clearly understood] before assenting to it.” Inaugural Address as Rector, University of St. Andrews (February 1, 1867). This latter aspect of the case will hopefully become clear to the reader as this opinion progresses. The plaintiff in this case, Minnesota Mining and Manufacturing Company (3M Co.), charges patent infringement on the part of the defendants, Walter S. Blume and The Electrodyne Company, with respect to two patents, U.S. Patent No. 3,235,675 (hereinafter the “675” patent) and U.S. Patent No. 2,999,275 (hereinafter the “275” patent). The 275 and 675 patents are, respectively, the process and the product patents for a magnet currently produced by 3M under the name “Plastiform.” Both the 275 and 675 patents were originally issued to Blume as patentee, and subsequently assigned by him to his employer at the time, Leyman Corporation, subject to a right to receive royalties. By an agreement of September 30, 1967, Leyman Corporation sold all its rights and interest in these patents (subject to Blume’s royalty rights) to 3M, the present plaintiff, as part of the sale of the Leyman Magnetics Division to 3M (jx I). At approximately the same time, 3M signed two agreements with defendant Blume (jx II, III). One of these was an agreement concerning Blume’s royalty rights under his patents which included a commutation of royalty payments (jx II). The other was an employment agreement for one year which included a five-year noncompete agreement, effective upon termination of Blume’s employment, restraining Blume from entering the broad field of magnetics (jx III). Blume ceased employment on October 1, 1968, and thus, by its own terms, the noncompete agreement would have expired on October 1,1973, had not the parties executed two letter-amendments to the original agreement on May 3, 1971, and June 26, 1972 (jx IV, VIII). The main dispute between the parties concerns the meaning and effect of these two amendments, particularly the latter. In their answer, the defendants deny infringing the 675 and 275 patents held by the plaintiff and assert the affirmative defenses of license and estoppel. The license defense is based primarily on the defendants’ interpretation of the 1971 and 1972 letter amendments to the 1967 employment agreement. The estoppel defense is primarily based upon various actions taken by 3M (or, rather, inaction on its part) with respect to the possible infringement of the 275 and 675 Blume patents by Polymag, Inc., a manufacturer located in Sag Harbor, New York, producing magnets similar to that produced under the 275 and 675 patents, under its own patent, the Peccerill patent, U.S. Patent No. 3,312,763 (hereinafter the “763” patent). On motion by the defendants, this Court bifurcated the issues raised by these affirmative defenses for trial prior to the issue of infringement. The parties then entered into a joint stipulation of issues for purposes of trial which is as follows: A. It is agreed that since the entry of the Court’s order on September 2, 1976, the defendants have continuously practiced the 275 method in the manufacture of the product sold by the defendants under the trade name “Plastalloy”. B. The issues raised by defendants and controverted by plaintiff are as follows: 1. The defendants assert that since June 26, 1972 they have been released to make and sell “Matrix-Bonded permanent magnets”, as that term is defined in the 3M letter to Blume of June 26, 1972, and which at all times since approximately July or August 1975 have been sold by defendants under the trade name “Plastalloy.” 2. The defendants assert that they have the right to practice the 275 method and to make, use and sell the product produced thereby and to practice any other patents acquired by 3M from Leyman, specifically including the 675 patent, for the following, reasons: a. ) that the letter from 3M to Blume dated June 26, 1972 (amending the October 1, 1967 agreement between 3M and Blume, as amended by 3M letter to Blume of May 3, 1971) immediately released Blume to make “Matrix-Bonded permanent magnets,” as defined in the letter agreement of June 26, 1972, free from claims of infringement of the 675 product patent and any other patent which 3M acquired from Leyman on September 30, 1967 except that prior to May 1, 1976 Blume could not use the 275 method patent in the production of the said “Matrix-Bonded permanent magnets.” b. ) that 3M is estopped from asserting any infringement by the defendants of the patents it acquired from Leyman on September 30, 1967, and specifically including the patents in suit, namely 275 and 675, because of the position of 3M asserted in the letters dated May 3, 1971 and June 26, 1972 (amending the agreement dated October 1, 1967) together with the written and oral representations which defendant Blume claims were made directly to him and indirectly to him and others (including but without limitations, the 3M-Polymag correspondence and the 3M correspondence with its German associates and the German Patent Office in connection with the German application corresponding to the U.S. 275 method) by authorized representatives of the plaintiff (including, but without limitations, those of Messrs. Granrud, Blankenbaker and Westbee) all of which occurred during the period from October 1,1967 until the filing of the complaint on February 6, 1976 and all of which Blume asserts were relied upon by him prompting his purchase of property and commencement of business including the manufacture of “Plastalloy” with the full and complete knowledge of 3M. c.) that the plaintiff is estopped from asserting any infringement by the defendants of the 275 or 675 patents because of the release provisions of the letter of June 26, 1972 by 3M to the defendant Blume. The trial of the bifurcated issues was held on August 29-September 2, 1977, with daily transcript copy, and the parties have submitted both post-trial briefs and proposed findings of fact and conclusions of law on the stipulated issues. Upon consideration of the issues, this Court makes the following findings of fact and conclusions of law; The plaintiff, 3M Corp., is a Delaware corporation and has its principal place of business at St. Paul, Minnesota. The individual defendant, Walter S. Blume, resides in Hamilton County, Ohio, within this District and is President of the corporate defendant, The Electrodyne Company, Inc. The defendant, The Electrodyne Company, Inc., is a corporation organized and existing under the laws of the State of Ohio, resides therein, and has a regular and established place of business in Clermont County, Ohio, within this District. The jurisdiction of this Court is invoked under Title 28 United States Code, § 2201, et seq., (declaratory judgment action), § 1338(a) (patent infringement), § 1338(b) (unfair competition), and § 1332(a) (diversity jurisdiction for the breach of contract claim). Venue in this District has not been objected to. On September 30, 1967, 3M Co. acquired the magnetics division of Leyman Corporation. At the time of the acquisition Walter Blume was an employee of Leyman and Vice-President in charge of the magnetics division (tr. 29). During his twenty-three years of employment with Leyman, Blume had secured a number of patents, including the 275 and the 675 patents, all of which he assigned to Leyman and for which he received 2% of gross sales over $200,000 as royalty payments (tr. 30). Under the agreement between 3M and Leyman, Leyman conveyed all its right, title and interest in the Blume patents to 3M for $2,267,000 (jx I), of which Blume eventually received $566,800 under a separate 3M-Blume agreement providing for- a commutation of royalty payments over a five-year period (jx II). On the day following the Leyman acquisition, 3M Co. and Blume entered into a one-year employment agreement (jx III). This agreement included a broad noncompete agreement excluding Blume from any participation, direct or indirect, in the “(1) design, (2) development, (3) manufacture, or (4) sale of magnets or magnetic compositions including . . . the process of producing magnetic compositions, the process and formula for incorporation of nonmagnetic binders with magnetic compositions, and apparatus for producing or testing magnets or magnetic compositions” (jx III, Article II). By the terms of the agreement, this noncompete covenant came into effect for a period of five years starting on the day Mr. Blume was last employed by 3M. Mr. Blume was employed by 3M from October 1, 1967, to September 30,1968, and thus the noncompete covenant would have expired by its own terms on September 30, 1973 (tr. 55 -56). Prior to this date, however, the parties twice amended this noncompete restrictive covenant. It is the operation and effect of these amendments on which the license defense primarily depends and to which we now turn. LICENSE ISSUE Prior to discussing the license issue, it may be helpful to discuss the background of Mr. Blume and the relations of the parties during the events at issue in this case. The record shows that Mr. Blume’s formal education was limited to completion of eight years of grade school (tr. 41). Despite that fact, Mr. Blume has extensively educated himself on the topic of magnets and permanent magnetism. According to the 1967 3M-Leyman agreement, eleven United States patents had been issued to Mr. Blurñé as original patentee, three additional United States patents were pending at that time, and twenty-nine foreign patents had been issued corresponding to the outstanding United States patents (jx I). In addition, Mr. Blume testified at trial that he has attended various national and international conferences on magnetism, corresponded with other experts in the field of permanent magnetism and, on prior occasions, had rendered expert written opinions for the plaintiff 3M on the ferromagnetic qualities of permanent magnet materials (tr. 42-43). Clearly, Mr. Blume was an expert in the field of magnets and magnetism, whose technical expertise 3M wanted to harness for their own benefit (tr. 692; dx 188, 189; cf. dx 317). It also appears clear from the record that during the events in question Blume was on friendly terms with several of the representatives of the plaintiff. In particular, defendant Blume and F. A. “Jim” Blankenbaker, head of 3M’s Dielectric Materials and Systems Division, appear to have developed a reasonably close, friendly relationship (tr. 215-17, 691-92). As Mr. Blankenbaker was apparently the source of the ideas which culminated in the two amendments to the original restrictive covenant (tr. 539), the Court feels that the relations between the parties are highly relevant in interpreting the contract documents. Upon completion of his one year of employment, Mr. Blume declined to continue working for 3M. Apparently Mr. Blume was not happy working in the corporate structure of a large organization such as 3M (tr. 691). In any case, during the first few years following Blume’s employment by 3M, Blume attempted to find some business venture in which he could become that which would not violate his restrictive covenant with 3M. The record reflects that during this period Mr. Blume made numerous unsuccessful attempts to establish some business totally outside the field of magnetism (tr. 79-81, 221-23; dx 152-154, 156-66). The record also reflects that during this period Mr. Blume was on several occasions offered consulting agreements with 3M in an effort to make use of his technical expertise (tr. 56-57, 62-64; dx 121, 125, 128, 184-85). However, even though Mr. Blume was apparently willing to act as a consultant on an informal basis (for which he was paid only his out-of-pocket expenses), he was unwilling to sign any formal contractual agreement for fear of reactivating the noncompete covenant in his original employment agreement for an additional five-year period (tr. 64-67; jx III, Article II). By the end of 1970, the parties had reached a quandry — 3M wanted to be able to “harness” Mr. Blume’s “technical horsepower” on a permanent basis to the benefit of their venture into the magnetics field, while Mr. Blume strenuously resisted their overtures for fear of limiting his future right to reenter the broad field of magnetics unless he were offered “consideration commensurate with the gamble represented by the postponement” (dx 188,189). Having paid over $2 million for the Blume patents and negotiated the noncompete covenant with Mr. Blume, 3M was apparently unwilling to do this. Thus, the parties were at loggerheads with Mr. Blume, an individual of proven technical expertise in the entire field of permanent magnetism, “dying on the vine,” in the words of one witness, as a result of the restrictive covenant (tr. 692). Due to their friendly relationship, Mr. Blume and Mr. Blankenbaker would occasionally meet for lunch or dinner whenever Mr. Blume was in St. Paul, Minnesota, or Mr. Blankenbaker was in Cincinnati (tr. 691). At one of these meetings in Cincinnati, on March 9, 1971, Mr. Blankenbaker informed Mr. Blume that the ceramic magnet plant of the John Oster Manufacturing Company, of Milwaukee, Wisconsin (which had produced brittle sintered magnets for internal use) was for sale (tr. 76-79, 693-94). During this meeting Mr. Blankenbaker and Mr. Blume also discussed the effect which Article II, the restrictive covenant in Blume’s 1967 employment contract with 3M, would have on Blume’s purchase of the Oster facility unless that contract were modified. Mr. Blume indicated that he was interested in getting into the sintered magnet business, if that could be arranged through an amendment modifying his non-compete agreement. Mr. Blankenbaker responded that it would be all right with 3M if Mr. Blume visited the Oster facility to see whether it would suit him. Mr. Blume visited the Oster facility on March 17, 1971, and subsequently wrote both Mr. Blankenbaker and Mr. Granrud informing them of the details of the visit and reiterating his interest in acquiring the facility (tr. 78-79, 88-89, 693-95; dx 192-96). As a class, the hard and brittle cast or sintered magnets are appreciably different from flexible permanent magnets, which include the high-energy single product of the Leyman Company produced under the Blume patents at the time of the 1967 3M acquisition and now manufactured by 3M under the trade name “Plastiform” (tr. 76-77, 228-232; px 53-54). Prior to the arrangements concerning Mr. Blume’s visit to Oster, Mr. Blume and Mr. Blankenbaker had apparently discussed the prospects of Mr. Blume’s being able to develop a super flexible magnet which would have an energy level at least two and one-quarter times the energy level of the sole product of Leyman produced by 3M under the Blume patents (tr. 693). Such a development would be of tremendous commercial value to 3M if they could acquire it, since such a super-magnet would be stronger than any other flexible magnet presently on the market (tr. 692-93). On the other hand, permitting Mr. Blume to get into the cast or sintered magnet business would put him in a much better position to begin making flexible magnets after his restrictive covenant expired on September 30, 1973 (tr. 114; jx IV). By the proper wording of an amendment to Blume’s 1967 restrictive covenant, however, an arrangement could be worked out which would apparently solve the parties’ prior dilemma — Mr. Blume would be freed to re-enter a portion of the magnet field (the cast or sintered magnet area) and to make and sell apparatus for testing magnets or magnetic compositions in exchange for an extension of a more narrowly drawn restrictive covenant and an agreement to freely share any new discoveries he might make. The May 3, 1971 letter-agreement, the first of two amendments to Blume’s 1967 noncompete agreement, was the result of this arrangement. This document is reproduced in the margin. Admittedly the language of this document is not internally consistent. Also, it is clear that, strictly speaking, the provisions of this first letter-amendment never actually came into effect. By its own terms, the amendments contained in the May 3 letter were to take effect only “upon the establishing or acquiring” of a “facility for making and/or selling cast or sintered magnets ... at any time prior to September 30, 1973” (tr. 115, 186-87; jx IV). Following his acceptance of the May 3 agreement, Mr. Blume investigated the sintered magnet business and, after contacting various acquaintances in that business, determined that the market was seriously depressed (tr. 127 -28). Thus, Mr. Blume decided against acquiring the Oster facility or engaging in the production of sintered magnets and the conditions contained in the May 3 letter never came into effect (tr. 127-28, 711-13). In light of the parties’ understanding that similar terms in both the May 3 letter-agreement and the later June 26, 1972, letter-agreement (which did come into effect) had the same meaning (see tr. 243-45, 301, 556-57), and the defendants’ contention that their license arises out of the language of both letter amendments (tr. 301-305), this Court finds that interpretation of the May 3 letter-agreement will be highly relevant in determining the parties’ intention with respect to the crucial June 26, 1972 letter amendment. As with any issue involving construction and interpretation of contractual provisions, the fundamental and cardinal rule is that the intention of the parties must be ascertained and given effect. O’Neill v. German, et al., 154 Ohio St. 565, 570, 97 N.E.2d 8 (1951); State ex rel. Maher v. Baker, 88 Ohio St. 165, 172, 102 N.E. 732 (1913). In determining the intent of the parties, primary resort should be to the language employed by the parties in the written instrument. New York Central Railroad Co. v. General Motors Corp., 182 F.Supp. 273, 284 (N.D.Ohio, 1960); State ex rel. Maher v. Baker, 88 Ohio St., at 172, 102 N.E. 732, and such language will be given effect if it is not ambiguous. New York Central Railroad Co. v. General Motors Corp., 182 F.Supp., at 284-85; Carroll Weir Funeral Home v. Miller, 2 Ohio St.2d 189, 192, 207 N.E.2d 747 (1965); Lawler v. Burt, 7 Ohio St. 340, 341, 350 (1857). If the language employed by the parties is ambiguous, however, parol evidence can be resorted to to determine the intent of the parties. Quarry Co. v. Clements, 38 Ohio St. 587, 590 (1882); 12 O.Jur.2d, Evidence, §§ 663, 664, 669 (1956); 11 O.Jur.2d Contracts, § 160, at 408 (1955). In this case all parties agree, and the Court so finds, that crucial terms used in both the May 3, 1971, and the June 26, 1972, letter-agreements are ambiguous and hence parol evidence is admissible to enable this Court to determine the intent of the parties. The Court finds that the May 3, 1971, letter-agreement was negotiated by the parties to permit Mr. Blume to acquire the Oster sintered magnet facility without violating Article II of his 1967 employment agreement with 3M. In order to put into effect the intent of the parties, the proposed agreement contained a broad clause releasing Mr. Blume to acquire “the John Oster facility or some other facility for making and/or selling cast or sintered magnets” subject to certain conditions enumerated in clauses I-IV (jx IV). Clause I, at the heart of this entire controversy, will be dealt with below. Clauses II and III (which are in all material respects the same as clauses I and II in the second letter-amendment of June 26, 1972, agreed to between the parties) provide that if Mr. Blume developed or acquired any U. S. patent having utility for flexible magnets (including those magnets produced by 3M under the Blume patents) he would offer to 3M a nonexclusive, royalty-free license for the life of such patents, and that if such a patent involved a super-magnet (that is, a flexible magnet of an energy product of at least 2.25 X 106 gauss-oersteds), 3M would in turn give Mr. Blume a nonexclusive, royalty-free license under the Blume patents 3M acquired from Leyman to make, use and sell flexible magnets of that energy level (tr. 116-18). Clause IV, when read in conjunction with the broad release clause, provides that if Mr. Blume acquires a sintered magnet facility prior to September 30,1973, he would be released to make and sell apparatus for testing magnets or magnetic compositions (such as the gaussmeter, an instrument which Mr. Blume subsequently developed) (tr. 187). Up to this point, the intent of the parties is relatively clear and the parties are, we think, in basic agreement about the effect of the proposed contract terms. The basic difficulty with this document comes from fitting clause I reasonably into place. The defendant contends that the term “Matrix-bonded Permanent Magnet,” as used in this document, is specifically defined on page 1 to mean the magnets produced under the Blume patents assigned to Leyman and subsequently acquired by 3M. Defendants then interpret clause I of the May 3 letter agreement by putting a heavy emphasis on the opening clause — “Prior to May 1,1976.”. The meaning, the defendants argue, is clear — under clause I, Mr. Blume is prohibited from engaging in the “(1) design, (2) development, (3) manufacture, or (4) sale” of the magnets produced under the Blume patents only prior to May 1, 1976. Consequently, subsequent to May 1, 1976, Mr. Blume claims he is free to make, use and sell the magnets produced under the Blume patents (“Matrix-bonded Permanent Magnets”). The result is that Mr. Blume by implication gets a royalty-free license under both the longer-lived 675 and the shorter-lived 275 patents for the remainder of their respective terms (tr. 766-67). The plaintiff, on the other hand, contends that to read the term “Matrix-bonded Permanent Magnets” as limited solely to the product produced by Leyman, and subsequently 3M, under the Blume patents is to ignore the remainder of the third sentence which differentiates “Matrix-bonded Permanent Magnets” from “cast or sintered magnets such as the aluminum-nickel-cobalt alloys now sold as ‘Alnico’ magnets” (jx IV). By reading the entire sentence, plaintiff maintains, it is clear that the term “Matrix-bonded Permanent Magnets” is broader than the sole product of Leyman produced under the Blume patents and is interchangeable with the term “flexible magnets” (tr. 777-778). Using this definition in clause I, plaintiff asserts, gives it the more natural meaning it was intended to have as a 5-year extension of the restrictive non-compete agreement contained in Article II of Mr. Blume’s 1967 employment agreement with 3M (tr. 777). The result is that, prior to May 1,1976, Mr. Blume is restricted from competing with 3M in the broader field of flexible magnets (subject, of course, to the exceptions contained in clauses II and III) and, after that date, Mr. Blume is free to enter the broader field of flexible magnets, but not to infringe the Blume patents held by 3M until they expire.' This Court has found this dispute a difficult one to resolve. To accept the plaintiff’s interpretations, among other things, puts a strain on the language in the first paragraph defining the term “Matrix-bonded Permanent Magnets.” Defendants’ interpretation, on the other hand, renders sentences in clauses II and III unnecessarily complex and, in some cases, meaningless. Defendants’ interpretation also places excessive emphasis on the “prior to” language of clause I in order to create an implied license in a document that, in one place, explicitly refers to “a nonexclusive, royalty-free license to make magnets .. . under and for the life of any patents 3M acquired from Leyman Corporation” (jx IV, clause III). For reasons that will become clear below, we think that the plaintiff’s interpretation was the one intended by the parties. To begin with, we think that the more reasonable construction of clause I is that the parties intended it as an extension (with a narrower scope) of the five-year restrictive noncompete covenant contained in Article II of Blume’s 1967 employment agreement. That this was 3M’s intention is relatively clear from several factors. First, during the period involved in this case, 3M had a special subcommittee, the Patent, Trademark and Copyright Subcommittee of the Management Committee, whose function, among other things, was to authorize grants of licenses under patents held by 3M (px 57, 58; tr. 639). Mr. William Abbott, a former director and special counsel to 3M, was chairman of this subcommittee and from time to time made determinations whether a particular matter should be brought to the attention of the subcommittee (tr. 643-44). It was Mr. Abbott’s testimony at trial that he and Mr. Granrud (the drafter of both letter-amendments) discussed clause I of the May agreement, that the extension of the restrictive covenant was thought by them to be in consideration for the release granted Mr. Blume to go into the sintered magnet business, and that he, Mr. Abbott, determined that it was not necessary for the May 3rd letter-amendment to be reviewed by his particular patent subcommittee (tr. 647-48). His reason for this decision was because, in his opinion, “there was no immediate problem with granting a license” since the agreement did not contain a grant of a patent license except on the conditions stated in clause III, “conditions that might never occur” (tr. 648-49). Second, the Court finds that the inclusion of a specific reference to a license in clauses II and III of the May 3, 1971 agreement tends to negate the intention of 3M to grant a license by such an oblique reference as the “prior to” language of clause I of the May agreement. Third, the testimony of all 3M witnesses involved in the drafting of this May 3 letter-agreement (admittedly disputed by the defendants) was that it was not 3M’s intention to grant a license to Blume under clause I (tr. 630-31; 648; 705-06). In spite of their obvious interest in the outcome of this case, we feel that their testimony is credible. Fourth, prior to the parties’ execution of the May 3 letter-agreement, there were several changes made in earlier drafts which reflected the intentions of the parties. One of these changes was the substitution of the term “flexible magnets” for the term “Matrix-bonded Permanent Magnets” at the end of the second sentence of the third paragraph. In a letter from Mr. Granrud to Mr. Blume dated April 19, 1971 (dx 198), Mr. Granrud explained this substitution. It was necessary to substitute the term “flexible magnets” for the term “Matrix-bonded Permanent Magnets,” Granrud explained, because the Blume patents held by 3M “would prevent [Blume] from making Matrix-bonded Permanent Magnets and we [3M] don’t want any implication to the contrary.” (tr. 192-93; dx 198). (Emphasis added.) We think the clear import of this language, despite its confusion in terms, was that, .under the earlier wording, interpretation was possible that Blume would be free to make magnets under the patents held by 3M at the end of his restrictive noncompete covenant and that 3M did not want such an implication read into the 1967 agreement — a factor we find indicative of 3M’s intent both with respect to the restrictive covenant in the earlier 1967 employment agreement and with respect to the later May 3, 1971, extension of the restrictive covenant under negotiation between the parties at that time. Thus, at the time the May 3, 1971 agreement was executed between the parties, we think it was 3M’s clear intent that clause I of the agreement would act as a five-year extension of the original restrictive covenant agreed to between the parties and nothing more. To controvert this point, defendants presented the testimony of Mr. Richard Evans, Mr. Blume’s attorney at the time of the 1967 employment agreement and the subsequent May, 1971 letter-amendment to that agreement (tr. 447, 461). It was Mr. Evans’ testimony that, subsequent to the negotiation of the May 3 letter-amendment between Mr. Blume and 3M, but prior to its execution, he was asked by Mr. Blume to give him an opinion as to its meaning (tr. 461, 502; dx 305). Based solely on the language of the agreement, it was Mr. Evans’ opinion that, under clause I of the May 3 letter-amendment, Mr. Blume was excluded from making magnets under the patents held by 3M until May 1, 1976, and that “thereafter he was free to do so” (tr. 465, 502-03). Subsequent to the execution of the May 3, 1971, letter-amendment, Mr. Blume applied for a Small Business Administration (SBA) loan to partially finance his venture into the sintered magnet business (dx 303) and, in connection with this application, requested Mr. Evans to render an opinion letter to the SBA explaining Mr. Blume’s rights and responsibilities under the May 3rd letter-agreement (tr. 460-62). This Mr. Evans did on July 9, 1971, in a letter to Mr. Cotton of the SBA (dx 304). In this letter, Mr. Evans stated as follows: “The agreement expressly excludes Mr. Blume from manufacturing ‘matrix-bonded permanent magnets,’ until May 1, 1976. The excluded type of magnets are those which are covered by a series of patents which Mr. Blume assigned to 3M several years ago” (dx 304, p. 1). In spite of the fact that this Court believes Mr. Evans’ testimony, several things must be taken into account in evaluating it. First, it is undisputed that Mr. Evans was not a party to the negotiations between 3M and Blume leading to the May 3 letter-agreement and had no direct contact with 3M concerning the meaning of that agreement (tr. 460-61, 502).. Thus, Mr. Evans cannot testify as to the intent of 3M in drafting and executing this agreement. Fed.R.Evid. 602. Second, Mr. Evans’ testimony as to the meaning of this document is not binding on us since it is the Court’s function to determine the meaning of these documents. Third, to the extent that Mr. Evans’ testimony as a fact witness sheds light on Mr. Blume’s intent, we must be mindful that our aim in construing the provisions of this agreement is to determine the joint intent of the parties. O’Neill v. German, et al., 154 Ohio St. 565, 570, 97 N. E.2d 8 (1951). It is clear that the unexpressed intention of one party to a contract cannot bind the parties. New York Central Ry. Co. v. Mohoney, 252 U.S. 152, 157, 40 S.Ct. 287, 289, 64 L.Ed. 502 (1920); Bach v. Friden Calculating Mach. Co., 155 F.2d 361, 365 (6 Cir., 1946); Myers v. Sunlight Laundry Co., 10 Ohio App. 275 (Ct.App. Hamilton Co., 1918); Restatement of the Law, Contracts § 20, Comment a (1932); 11 O.Jur.2d Contracts § 18, at 263 (1955). Given the close relationship of the parties in this case (Mr. Blume and Mr. Blankenbaker), we think that Mr. Blume knew or had reason to know that clause I of the May 3, 1971, agreement was intended by 3M to be merely an extension of the Article II non-compete agreement in the 1967 contract, and was not intended to be an express or implied grant of a license. It is clear that an offeree who knows what the offeror intended by an ambiguous offer and also accepts it is bound according to the intent of the offeror. Butler v. Moses, 43 Ohio St. 166, 170-71, 1 N.E. 316 (1885); 11 O.Jur.2d Contracts § 134, at 380 (1955). We think that is the situation presented here. Mr. Evans took no part in the negotiations between the parties and his interpretation of the May 3 letter-agreement was based solely on the text of the document (tr. 461, 502). In light of Mr. Blume’s close relationship with Mr. Blankenbaker and his reason to know of 3M’s intent, we do not think it can be said that Mr. Blume reasonably relied on what he now asserts is his interpretation of the May 3 letter-agreement. There is no evidence anywhere in this record that Mr. Blume ever attempted to clarify the nature of his rights under clause I of the May 3 agreement with 3M — an omission especially significant, we think, in light of the parties’ intent and purpose in negotiating the agreement and the interpretation of that clause Mr. Blume later received from his lawyer, Mr. Evans, shortly prior to signing the agreement. Given the importance of the rights Mr. Blume alleges he received under his highly technical reading of clause I and the purpose and intent of the parties in negotiating the agreement, we think it was incumbent upon Mr. Blume to clarify his understanding of his rights with 3M. He cannot now, we think, take advantage of his failure to do so. As we mentioned earlier, Mr. Blume investigated the sintered magnet market following his acceptance of the May 3 letter-agreement and eventually decided against acquiring either the Oster facility or any other facility for the production of cast or sintered magnets due to an unanticipated depression in the manufacturer’s selling price of cast or sintered magnets (tr. 127-28, 711-13). When it became apparent to Blume that he would not acquire the Oster facility under the May 3 letter-agreement, he went to St. Paul on November 19, 1971, and met with Blankenbaker, Granrud and others (tr. 128, 269-70, 696 — 97, 718). The purpose of this visit was so that Mr. Blume could assist Mr. Granrud, at Granrud’s request, in connection with the prosecution of the German counterpart to the 275 patent, which at the time had been placed in opposition. During the course of this November 29th meeting, the subject of a broader release from the October 1, 1967, restrictive covenant, as amended by the May 3, 1971, letter-agreement, was discussed. The parties are in disagreement over the scope of the release requested by Mr. Blume at this meeting. The plaintiff contends that Mr. Blume requested a release to make “noninfringing products, noninfringing [flexible] magnets” which would only be “low energy flexible magnets” and/or a license under his patents to make a magnet with an energy level in the range of the magnet being produced by the B. F. Goodrich Co., a 3M licensee. The defendant, on the other hand, contends that he did not specifically limit his request for a release to low energy magnets — rather, he states that he requested a release to make “noncompetitive, non-infringing magnets” with “energy products .. . higher than Goodrich, or as good as Goodrich was producing” (tr. 271, 276). Although the contours of this disagreement are somewhat unclear to us, we find that Mr. Blume requested a release (and/or license) to make both low and high energy magnets with specific reference to the magnets then being produced by the B. F. Goodrich Company under the Blume patents (magnets with an energy of .8 X 10 gaussoersteds) (tr. 271-76, 544-A5, 600-01; px 16). As Mr. Blume testified: “I asked specifically, asked that if I produce the material, noninfringing material with energy products higher than those people such as I mentioned, Goodrich, specifically, higher than Goodrich, or as good as Goodrich was producing, would you turn your back, what would you do [?] I did not receive an answer, nothing but smiles” (tr. 271, 276). The outcome of this November 29, 1971, meeting in St. Paul was that 3M would take Mr. Blume’s requests under advisement, and they would get back to him with their decision (tr. 546, 600, 698). We think that the subsequent evidence of the parties’ intent prior to June 26, 1972, reveals that even if Mr. Blume did request a license to make products of an energy level equivalent to or higher than that of Goodrich, it was not 3M’s intent to grant him such a license by the June 26 letter-agreement, and there were no facts on which Mr. Blume reasonably could rely in thinking that he received such a license. Subsequent to the November 29 meeting, Robert Granrud recorded the substance of Blume’s alternative requests for (1) a release to make noninfringing low energy magnets and (2) what Mr. Granrud characterized as a “license” under the 3M-Blume patents to make magnets in the 0.8 range, in a letter to Mr. William Abbott, chairman of 3M’s Patent, Trademark and Copyright Subcommittee (px 16) for Mr. Abbott’s consideration. Mr. Abbott’s function in the granting of patent licenses by 3M Corporation as well as those of his committee have been previously discussed. Suffice it to say here that Mr. Granrud, Mr. Abbott and Mr. Blankenbaker discussed Mr. Blume’s requests further and determined that 3M would be willing to narrow the scope of Blume’s restrictive covenant (tr. 599-601, 628, 650, 698). It was their decision that the restrictive covenant (contained in Artiele II of Blume’s 1967 employment contract, as modified by clause I of the May 3, 1971, letter-agreement) should be narrowed so as to be coextensive with the scope of 3M’s rights under the two Blume patents (275 and 675) (tr. 600-01, 648, 628, 650), and to be limited in time to avoid invalidation by a court- applying Ohio’s “Blue Pencil Rule.” This Court is unclear why it was necessary for 3M to resort to such a complicated process of reasoning in order to protect rights which 3M already held under the Blume patents. It would have been much less complicated, in this Court’s opinion (and far less burdensome from a litigation point of view), for 3M to release Blume to make any magnets he wanted to so long as he did not infringe his patents — period. 3M asserts, however, and this Court finds, that it was 3M’s intent in drafting the June 26 letter-amendment to give it “two strings to its bow,” so that if Blume infringed his patents within the five-year period, 3M would have either a right to sue in tort for infringement or in contract under the restrictive covenant. See United Lens Corp. v. Doray Lamp Co., 93 F.2d 969, 971 (7 Cir., 1937); Bruhn v. S.T.P. Corp., 312 F.Supp. 903, 905 n.1 (D.Colo., 1970); Battelle Development Corp. v. Angevine-Funke, Inc., 165 U.S.P.Q. (BNA) 776, 778 (C.P.Franklin Co., 1970). The benefit to 3M from having a contractual right in addition to a right under the Blume patents was apparently that if Blume did infringe within the five-year period, it would not be “necessary for [3M] to prove the validity of the patents in order to be entitled to enforcement of the agreement by the Court.” 165 U.S.P.Q. (BNA), at 778; (tr. 650). Although the legal question underlying 3M’s view of the benefit it received by having “two strings to its bow” is not so clearly established in this Court’s mind as it is in the mind of 3M’s counsel, we find that it was 3M’s intent in drafting the June 26, 1972, letter-agreement, as well as the correspondence which led up to it, to limit Blume’s restrictive covenant both in time (so as to avoid Ohio’s “Blue Pencil Rule”) and in scope (so as to make the covenant coextensive with 3M’s rights under its patents) while giving 3M “two strings to its bow” in tort and contract to sue Mr. Blume, should he infringe his patents prior to May 1, 1976. After this decision was made, Mr. Granrud was entrusted with the responsibility of notifying Mr. Blume of this decision and of confirming the nature of the proposed agreement by letter with Mr. Abbott. This Mr. Granrud did on December 30, 1971 (jx V; px 17). These two letters confirm this Court’s understanding of the parties’ intentions with regard to the proposed letter-amendment. Mr. Granrud’s letter to Mr. Blume, reproduced in the margin, makes it explicitly clear that, in producing the “Matrix-bonded Permanent Magnets” Mr. Blume would be released to produce, Mr. Blume must not infringe “any unexpired patent in your name which 3M obtained with its purchase of the Magnetic Division of the Leyman Corporation, especially your U. S. patent No. 2,999,275' (jx V). (Emphasis added.) There is no time limit included in this December 30th letter on this obligation of Mr. Blume. Defendant, however, points to the language in the December 10th letter which limits the term “Matrix-bonded Permanent Magnet” to its definition in the May 3 letter-amendment. This language, defendants contend, when combined with the mention in the December 30th letter that the proposed release “[would] be subject to the sort of conditions of the . . . letter of May 3, 1971,” indicates that Mr. Blume was clearly intended to be granted a license after May 1, 1976, to make magnets under the 275 and 675 patents (tr. 251). This argument by the defendants is merely further elaboration of the defendants’ earlier argument concerning the meaning of the term “Matrix-bonded Permanent Magnet” in the two letter-agreements and the effect of clause I in the May 3,1971 letter-amendment — arguments we have already rejected. Yet, even if we were to accept at this stage defendants’ argument that the term “Matrix-bonded Permanent Magnets” was clearly intended by the parties to be limited to the magnets produced under the Blume patents, it is clear that a significant segment of the December 30th letter would be meaningless. For example, how could 3M be “willing to grant [Mr. Blume] ... a release” to make “Matrix-bonded Permanent Magnets” (as defined by the defendants) while, in the same sentence, specifically limiting such a release to noninfringing magnets (jx V)? We find, rather, that the letter of December 30th from Mr. Granrud to Mr. Blume explicitly informed Mr. Blume that he would be released to make noninfringing Matrix-bonded Permanent Magnets and that, in making these magnets, he must not in any case, infringe the patents held by 3M without limitation as to time. We also find that this meaning was understood by Mr. Blume or should have been so understood by him (in light of the negotiations held up to that time and the meaning of the May 3, 1971, letter). The December 30th letter from Mr. Granrud to Mr. Abbott, reproduced in the margin, contains 3M’s contention that the proposed letter amendment was intended by 3M to limit Blume’s restrictive covenant both in time and space while- giving 3M “two strings in its bow” should Mr. Blume infringe his patents prior to May 1, 1976. Following his discussion of the necessity for limiting Mr. Blume’s covenant in time so as to avoid the application of Ohio’s Blue Pencil Rule, Mr. Granrud clearly alludes to 3M’s understanding of the “two strings to its bow.” As Mr. Granrud stated, “even if a court were to hold the [restrictive covenant] provision to be unduly harsh and thus unenforceable [under the Blue Pencil test], Blume would be in a poor position as the infringer of any of his patents.” Taken together, the two letters demonstrate 3M’s intention with respect to the proposed letter amendment and, more importantly, that 3M communicated to Mr. Blume its intent, in granting the requested release, that Mr. Blume “not infringe any unexpired patent in [his] name which 3M obtained with its purchase of the Magnetics Division of Leyman Corporation, especially .. . U.S. patent No. 2,999,275” (jx V). On January 16, 1972, Mr. Blume responded to the letter from Mr. Granrud (jx VI). In accordance with the last paragraph of Mr. Granrud’s letter, Mr. Blume indicated that he was proceeding in his search for a “suitable business location” and that he “expect[ed] to write to [Mr. Granrud] shortly and affirmatively in terms of having acted on the various aspects covered in your letter and to pursue in detail the kind consideration given me” (jx VI). The record reflects that on May 24, 1972, Mr. Blume contracted to purchase land on which to erect a facility (tr. 136-37; dx 332). Then, on May 27, 1972, Mr. Blume wrote to Mr. Granrud and requested 3M to proceed “on the matter covered in the second paragraph of your December 30, 1971 letter” (jx VII). This Mr. Granrud did, submitting to Mr. Blume a draft of a proposed letter-amendment (dx 337), which, with minor modifications not material to this case, became the second letter-amendment agreed to by the parties. Following receipt of this draft agreement, Mr. Blume closed the purchase on his piece of land (tr. 140; dx 339). Finally, 3M drafted and submitted to Mr. Blume the second letter-amendment of June 26, 1972, incorporating the changes made from the draft (tr. 140-41; jx VIII; dx 337). This letter-amendment was accepted and returned by Mr. Blume to 3M on July 5,1972 (jx IX) and is reproduced in full in the margin (jx VIII). The Court finds that the intent and purpose of the parties in agreeing to the second letter-amendment was similar to that behind the first letter-amendment — to permit Mr. Blume to enter into the production of certain magnets without violating Article II of his 1967 employment agreement with 3M. We note that the structure of the two letter-amendments is quite similar and that the June 26, 1972 letter states explicitly that it was entered into “as a substitute for the letter of May 3, 1971” (jx VIII). In order to put into effect the intent of the parties, the proposed agreement contained two broad release clauses (A and B) subject to certain conditions enumerated in clauses I-III (jx VIII). Clause A, which released Mr. Blume to “establish or acquire facilities for making and/or selling cast or sintered magnets, is similar to that included in the earlier May 3 letter discussed earlier and so it need not be explained here. Clause B, on which Mr. Blume’s defense of license ultimately rests, will be discussed below. Clauses I-IV are, in substance, identical with clauses II-IV of the May 3, 1971 letter-amendment previously discussed and therefore also need not be explained again here. From our discussion up to this point, it must be apparent to the reader that clause B of the June 26, 1972 letter-amendment contains the “slippery words” which both parties contend mean what they say and say what they, the parties, meant. That clause, in pertinent part, reads as follows: This letter, which is a substitute for the letter of May 3, 1971, shall serve to release you to * * * * * * B. Establish or acquire facilities for making and/or selling Matrix-bonded Permanent Magnets, with the express understanding that in making such Matrix-bonded Permanent Magnets you will not, prior to May 1, 1976 infringe any unexpired patent in your name which 3M obtained with its purchase of the Magnetics Division of the Leyman Corporation, especially your U.S. patent No. 2,999,275. Since clause B of the June, 1972 letter-amendment is the basis upon which Mr. Blume’s license defense ultimately rests, we feel it necessary here to state the positions of the parties as to the meaning of that clause although this will obviously be somewhat repetitive of our prior discussion. Defendants, relying heavily on the “prior to” language, contend that clause B immediately released Blume to make “Matrix-bonded Permanent Magnets” so long as he did not infringe any of the patents 3M acquired from Leyman (especially the 275) prior to May 1, 1976. After that date, however, defendants contend this clause effectively granted them a license to practice any of the patents 3M acquired from Leyman, including those relating to the manufacture of “Matrix-bonded Permanent Magnets” as that term is defined on page 1 of both the May 3, 1971 and June 26, 1972 letter amendments, viz., “permanent magnets comprising anisotropic, substantially domain size particles of permanent magnet material which had been mechanically oriented and which were bonded together by a nonmagnetic matrix material.” Plaintiff, on the other hand, contends that clause B was intended by the parties to act as a release to permit Mr. Blume to establish or acquire facilities for making and/or selling flexible magnets (“Matrix-bonded Permanent Magnets”) subject to certain conditions. One of those conditions, plaintiff points out, was that in making such flexible magnets Blume must not “prior to May 1, 1976 infringe any unexpired patent in [his] name which 3M obtained [from] Leyman Corporation, especially your U.S. patent No. 2,999,275” — a clause that was clearly intended to act as an extension of the restrictive covenant in Blume’s 1967 employment contract, limited in time to avoid invalidation under Ohio’s “Blue Pencil Rule” and in scope so as to make the covenant coextensive with 3M’s rights under its patents. Plaintiff contends it was never intended, nor was it reasonably understood to be an affirmative grant of a license to Blume under the Blume-3M patents. From our review of the evidence outlined above, we must agree with the plaintiff’s contention. We reach this conclusion based on several factors. First, and most important, are the facts as we have found them above concerning the intention of the parties in drafting this agreement and the negotiations leading up to it. Second, we find our conclusion to be supported by a comparison of the May 3,1971 and the June 26, 1972 letter-amendments with respect to organization and structure, keeping in mind the parties’ intent with respect to clause I in the May 3, 1971 letter-amendment as we have found it above. Third, the June 26, 1972 letter-amendment, like the May 3,1971 letter-amendment, was never brought up for review before 3M’s Patent, Trademark and Copyright Subcommittee because in the opinion of Mr. William Abbott, the chairman of this committee, the June 26, 1972 letter “did not grant a license under any 3M patent, particularly the patents. . .that were acquired from the Lehman [sic] Company.” Neither, in his opinion, was the June 26 letter-amendment a “research and development agreement” since, “while Mr. Blume was authorized to engage in research, 3M was not paying for the research [nor were they] supplying the facilities for any such research” (tr. 652). Finally, subsequent to June 26, 1972, several events occurred which further reinforce our conclusion. First, in May of 1973, Mr. Blume wrote a letter to Mr. Georg Gronefeld, Director of the Magnetfabric Bonn of GmbH Gewerkschaft Windhorst, concerning his re-entry into the magnet business (px 22). In that letter, Mr. Blume informed Mr. Gronefeld that the Electrodyne Company was Mr. Blume’s means of re-entering the magnet business. The letter then went on to state: “However, our plant has only recently been completed. It will take at least a year or two before we become truly productive with regard to magnet manufacture and I am, of course, still obliged to honor the patents I assigned to the SM Company” (px 22). (Emphasis added.) Second, in the fall of 1973, Mr. Blume began negotiations with the Southern Ohio Bank for a business loan to the Electrodyne Company guaranteed through the Small Business Administration (tr. 414). In support of this loan, Mr. Blume submitted various documents to the Bank, including a “Business Background and Prospectus” and a copy of the June 26, 1972 letter-amendment (dx 377, 380). In his “Business Background and Prospectus,” Mr. Blume stated the following concerning his relationship with 3M: The applicant believes such circumstances are in his favor and for the purpose of further pursuit in the field of magnetics, he managed to negotiate a partial release from his rather broad unexpired contractual obligation to 3M. This release became effective on May 3, 1971, and was subsequently updated on June 26, 1972. Exhibit 5 attached. To obtain the release, the applicant agreed to give 3M the benefit of a nonexclusive royalty free license on any improvements he might make with regard to a permanent magnet product and process specifically limited to and described under applicant’s patent No. 2,999,275 and which was previously assigned to 3M by reason of its acquisition of Leyman. The obligation of applicant to 3M under this arrangement is defined within very narrow limits and expires on May 1, 1976, approximately one year ahead of the expiration date of the patent concerned. In return for the applicant’s consideration to 3M and in the event provided for, he, his heirs or assignees will automatically receive a royalty free license to manufacture and sell the product covered under the patent referred to. It would seem that the concession to SM is indeed small since the applicant could not otherwise practice the patent or any improvement made thereto prior to its expiration in any event without SM’s permission. Furthermore, aside from this single exception, the applicant is now totally free to engage in magnet development, manufacture and sales on his own behalf without further or continuing obligation to 3M. While the original agreement and the obligations thereto have now expired, the expediency of obtaining a partial release prior to this event allowed the applicant to engage in development work approximately two and one-half years in advance of the time otherwise permissible and in an area completely devoid of any contingent obligation to 3M (dx 380). (Emphasis added.) Counsel for defendants argues that this language supports his contention that Blume thought (or reasonably relied in thinking) that he had received a license under the provisions of the two letter-amendments (tr. 753-55). We, however, read this language to mean the following: (1) That in order to obtain his partial release, Blume agreed in clause I of the June 26 letter-amendment to give 3M a nonexclusive royalty free license on any improvement he might make on the 275 magnet; (2) That this obligation in clause I of the June 26 letter-amendment expired on May 1, 1976; (3) That in return for this consideration, Blume, his heirs or assignees under clause II of the June 26 letter-amendment will receive a royalty free license to manufacture and sell the product under the 275 patent; (4) That Blume’s “concession” to 3M concerning the nonexclusive royalty free license mentioned in point (1) above is small since if he does develop an improvement on the 275 patent, he will get a royalty free license in return as mentioned in point (2) above and he “could not otherwise practice the patent or any improvement made thereto prior to its expiration in any event without 3M’s permission” (emphasis added); (5) That, a side from-this single exception relating to the 275 patent, he is now totally free to engage in general magnet development, manufacture and sales on his own behalf without further or continuing obligation to 3M; and (6) That this partial release obtained pri- or to the expiration of the restrictive covenant in Blume’s 1967 employment agreement enabled him “to engage in development work approximately two and one-half years in advance of the time otherwise permissible” to engage in developmental work, viz., the May 1,1976 date provided in clause I of the May 3, 1971 letter-amendment. This clause prohibited Blume from engaging in the “(1) design, (2) development, (3) manufacture, or (4) sale of Matrix-bonded Permanent Magnets” (i.e. flexible magnets) prior to May 1, 1976 except, as provided in clauses II and III of the May 3 letter-amendment, under a “contingent obligation” to 3M that should Blume prior to May 1, 1976 develop a “super” 275 magnet, he would be obligated to give 3M a nonexclusive royalty free license. The benefit which we think Mr. Blume is clearly referring to in the last paragraph of the excerpt above was his new freedom, under the provisions of the June 26 letter-amendment, to engage in developmental work prior to May 1, 1976 on flexible magnets other than magnets produced under the 275 process. This was the benefit which Mr. Blume received “two and one-half years” prior to the May 1,1976 date he had previously been restricted to under clause I of the May 3, 1971 letter-amendment. Defendants also offered in support of their position the testimony of Mr. Earl Lindholz, Vice-President of the Southern Ohio Bank and loan officer in charge of the SBA-Electrodyne loan (tr. 412-13). Defendants contend that the testimony of Mr. Lindholz establishes that Mr. Blume informed the Bank, when he applied for the loan in the fall of 1973, that he was free to produce flexible magnets with the exception that he could not produce magnets under the 275 method until May 1, 1976. The defendants also contend that the Bank, having read the June 26,1972 letter-amendment attached to Blume’s “Prospectus,” was of the same opinion and relied on this representation by Mr. Blume in extending the loan. (See defendants’ Proposed Findings of Fact and Conclusions of Law # 24-28.) The significant portion of Mr. Lindholz’s testimony on this point is as follows: Q. Did you, reading [the June 26 letter-amendment] form an opinion with respect to what you believed Mr. Blume could do? A. Yes. Q. What was your opinion of what Mr. Blume could do with respect to the production of magnets after reading that instrument? A. It was our opinion that he could produce magnets. Q. Did Mr. Blume make any such representation to you? A. That he could produce magnets, yes. Q. Did he indicate to you when he could produce magnets? A. He indicated that he was able to produce magnets at the time the loan was approved. He indicated that there was some situations that he would not be allowed to produce a specific magnet until a contract date, and I believe it was in 1976. Q. All right, sir. Was that opinion which you reached important to the bank in determining whether or not to make the loan to Mr. Blume? A. Yes, it was. Q. Are you able to state whether or not, without having such an instrument and having reviewed such an instrument and shared such an opinion as you’ve just described, the bank would have made the loan to Mr. Blume? A. Well, I think if our bank had knowledge of various restrictions and if the applicant was not able to be released from those restrictions to produce that product we probably would not have made the loan. THE COURT: Are you talking about the restrictions of the noncompetitive agreement? THE WITNESS: Yes (tr. 424-26). First, we note that portions of this testimony are not inconsistent with the facts as we have found them above — following execution of the June 26, 1972 letter-amendment, Mr. Blume was free in the fall of 1973 to begin making magnets — so long as they didn’t infringe the Blume patents held by 3M. Second, to the extent Mr. Lindholz based his opinion regarding what Mr. Blume could or could not do on his own reading of the June 26, 1972 letter-amendment, his testimony stands on the same ground as that of Mr. Evans (with respect to the earlier May 3 letter-amendment). Finally, with respect to Mr. Lindholz’s testimony that “there [were] some situations that [Blume] would not be allowed to produce a specific magnet until a contract date, ... I believe it was in 1976,” we note that there is some inconsistency on defendants’ part with respect to scope of this contract limitation referred to. Defendants’ position at trial, of course, is that they have a license under all of the Blume patents held by 3M by virtue of clause B in the June 26, 1972 letter-amendment (tr. 766-67). Yet this contract limitation referred to by Mr. Lindholz was, defendants’ counsel contends, “explained by Blume as limited to the narrow 152 product patent” (defendants’ proposed Findings of Fact and Conclusions of Law # 28, at 8) — an explanation inconsistent with the broad license Mr. Blume is now claiming. For this reason and for the r