Full opinion text
OPINION MURRAY M. SCHWARTZ, District Judge. This is a consolidated action to determine whether two patents held by Gould, Inc. (“Gould”) are valid and infringed. On May 6, 1976, General Battery Corporation (“GBC”) filed Civil Action No. 76-162 in this Court, seeking a declaratory judgment as to the invalidity and non-infringement of Gould’s product patent, U. S. Letters Patent No. 3,948,680 (“ ’680 patent”). On March 1, 1977, Gould filed Civil Action No. 77-73, alleging that GBC and Northwest Industries, Inc. had infringed the ’680 patent and the subsequently-issued method patent, U. S. Letters Patent No. 3,988,165 (“ ’165 patent”). The two cases were consolidated by Court Order on October 3, 1977. Docket No. 53. Gould later dropped its claims against Northwest Industries, Inc. Docket No. 191. The case was tried to the Court from November 30, 1981, to December 8, 1981, and the Court heard post-trial argument on April 30, 1982. Jurisdic-' tion is based on 28 U.S.C. § 1338(a) and venue is proper under 28 U.S.C. § 1400(b). This opinion constitutes the Court’s findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. 1. Background Facts A. Batteries Generally The patents at issue claim both a method for manufacturing automotive batteries and the batteries themselves. The Gould batteries manufactured under the method at issue are known as “Drynamic”; the GBC batteries alleged to infringe are known as “Redi Dri.” (PreTrial Order l(a)(l)e.) The process at issue became a commercial reality in the early 1970’s. Batteries manufactured under this process are available commercially today. Some background information on batteries must be set forth to place the case in context, although this discussion is necessarily oversimplified. Batteries generally are divided into two categories — primary or voltaic batteries, and secondary or storage batteries. Each type converts chemical energy which had been stored in the battery when it was charged into electrical energy. During this process, known as “discharge,” chemical reactions occur within the battery which release electrons on the negative electrode. A primary battery is simply discarded after the reactants are exhausted. A secondary or storage battery, on the other hand, converts chemical energy into electrical energy by reactions that are essentially reversible; the battery may be recharged by passing a current through it in the opposite direction to that of its discharge. At issue in this case are lead-acid storage batteries. Lead-acid storage batteries are composed of plates, which are grids with lead compound material pasted on them, and a solution of sulfuric acid and water called “electrolyte.” When the battery is initially charged, a current which passes through the plates transforms them into either positive or negative plates by rendering the inert lead compound material “active.” The active material on the positive plates is lead dioxide; the active material on the negative plate is spongy lead. At discharge, the sulfuric acid reacts with this active material to form lead sulfate and water and release electrical energy. An automotive battery is simply a six or twelve-volt lead-acid battery that is used to start an automobile engine. (Tr. 103). Among battery manufacturers these batteries are often termed “starting, lighting, and ignition” or “SLI” batteries. (Tr. 103). Unlike industrial batteries or golf cart batteries, which normally use from fifty to one hundred percent of their capacity during operation, an automotive battery usually uses less than five percent of its total capacity to start an engine. (Tr. 110). In addition, an automobile battery is recharged while the engine is running. When the battery is in a state of overcharge, as is the ordinary case while driving, the electrical current from the alternator dissociates water into hydrogen and oxygen gas, which escapes through openings in the top of the battery. (Tr. 110-11). Typically, an automotive battery has a plastic container with a plastic cover which is hermetically sealed. At the top of the battery, protruding from the cover, are the lead terminals or outputs. The cover also contains six openings, arranged in groups of three, which are called vents or fill openings; the bottom portions of the vents as they go through the cover are called vent wells. Partitions or cell walls within the battery separate the interior of the battery into six individual cells. Each cell contains one element, which consists of alternating positive and negative plates kept apart by separators made of non-conductive material, such as wood, rubber, or plastic. Lead straps connect all the positive or all the negative plates in each cell, and inter-cell connections connect one group of plates of one charge to the group of the opposite polarity in the next cell. The plates sit on elevations in the battery floor known as “restups” or “mudrests” rather than directly on the floor of the battery case. The space between the bottom of the plates and the floor is called the “mudwell,” an area into which some of the material from the plates may fall during the life of the battery. (See generally Tr. 105-07; PXla; PXlb; PX2.) Battery acid, known as electrolyte, is used in varying concentrations in the formation and operation of batteries. The concentration of acid to water is measured by determining the solution’s specific gravity, defined as the ratio of the density of a substance to the density of water at a given temperature. Water has a specific gravity of 1.0; as sulfuric acid is added, the specific gravity goes up. A so-called “high gravity” acid might be thirty-five percent sulfuric acid; a “low gravity” acid could have as little as five percent acid. Generally the desired specific gravity of electrolyte in a finished battery is approximately 1.265 at 25 °C, which would be about thirty-five percent sulfuric acid. (See Tr. 250-51; DX34). In the manufacture of automotive batteries, the process of charging a battery in its initial state is called formation. At formation, the inert material pasted onto the battery plates is converted to the active state by passing a current through the plates. Two methods of manufacture are commonly used in the battery industry — the “one-shot” and “two-shot” methods. In “two-shot” formation, an assembled battery is filled with low gravity acid in the range of 1.050 to 1.060 and charged so that most of the inactive material is converted to active. The acid is then removed or dumped from the container and the container filled with a higher gravity acid. The combination of that acid with the low gravity acid remaining in the plates produces the desired final level of specific gravity of 1.265. After a boost charge is applied to mix the low and high gravity acids, the vents are inserted in the top of the battery and the battery is ready for shipment. (See Tr. 246-49; PX53). In contrast, a “one-shot” formation uses a formation acid with a high enough specific gravity so that only one fill is required. (Tr. 249-50). Both processes have been known for years and are considered to have different advantages. (Tr. 251-52). A problem frequently encountered in batteries, and relevant to this case, is known as “sulfation.” Sulfation generally refers to the formation of lead sulfate on the surface and in the pores of the active material of battery plates. As noted earlier, some sul-fation occurs as a natural part of discharge, produced by the reaction of sulfuric acid with the plates. This type forms a finely crystalline sulfate which is easily reduced by a charging current. Sulfation also occurs from self-discharge, and depends on the concentration and temperature of the electrolyte as it acts on plate materials. This sulfation can also be easily reduced by charging current, although the crystals are coarser. The most common use of the term “sulfation,” and the use relevant to this case, is the formation of large lead sulfate crystals or crust on the plates as a result of neglect, misuse, or nonuse, as, for example, when a battery is charged and stored on a shelf awaiting sale. Such sulfation is more difficult to reduce with charging current and may injure the plates; as the pores of the plates become clogged with sulfate, the active material may be pushed out of the. plates and the plates buckled. See G. Vi-nal, Storage Batteries 295-97 (2d ed. 1930) (PX137, Tab C). The automotive battery market today is divided between original equipment manufacturers and the aftermarket. For original equipment manufacturers, perishability of batteries is not a significant factor because of the large quantity of batteries produced and their rapid turnover. Eighty percent of automotive batteries, however, are sold in the aftermarket, where longer shelf life is desirable. Smaller retailers who sell fewer batteries, slower-moving batteries, and seasonal temperature variations which affect shelf life as well as sales all make perishability an important consideration. (Tr. 167-70). A shelf life of six months would be the usual requirement, but for some slow moving batteries a year’s shelf life would be required. (See Tr. 170, 172-74). In 1970, two main types of automotive batteries existed — “wet” batteries and “dry” or “bone dry” batteries. (Tr. 113-14). A wet battery is simply a battery which has been stored with all the electrolyte in it. Wet batteries lose about one percent charge per day at normal room temperature, and thus within fifty to sixty days the batteries would reach the unacceptable level of less than fifty percent charged. (Tr. 165-67). Dry batteries are batteries from which all the electrolyte has been removed and the plates washed and dried, usually in an oven. They are stored without electrolyte in them; the electrolyte is added at sale or shortly before sale. (Tr. 113-14). Although they have an extended shelf life, the batteries also have certain commercial disadvantages — they are expensive to produce, more costly to distribute, and require lengthy servicing before being put into operation. (Tr. 174-76). In addition, if the plates were not virtually dry and were exposed to air, they would oxidize and become inoperable. (Tr. 254). A third category of batteries is particularly relevant to this case. For years, battery manufacturers have known that it is desirable to ship batteries after having dumped the electrolyte without going through special steps for washing and drying the plates. Not only are such batteries lighter, but they are also easier to ship because acid is not as likely to spill out of the dumped batteries during shipment. These batteries may be termed “charged and dumped” batteries, having been fully charged or formed and then having had the electrolyte removed by dumping. (PTO 3(b)(12)45). As already noted, moist negative plates tend to oxidize if exposed to air. (PTO 3(b)(6)22). B. Development of the Drynamic Invention In mid-1971, an innovation in automotive batteries appeared on the market — the Globe Union Spin Dry Battery. Under the Globe Union process, instead of drying the plates after dumping the electrolyte, the batteries were placed into a centrifuge which would remove additional acid from the plates and separators as well as the battery container by spinning it rather than by hot air drying of the plates. (See Tr. 258-64; PX8; PX9; PX10). Although the plates were not completely dry, the Globe Union batteries had good performance characteristics. (Tr. 117). Gould perceived the Globe Union batteries to be a potential commercial threat. (See Tr. 118, 263). Gould had been experimenting with new manufacturing methods to achieve similar results, but had not been successful. (Tr. 114-16). Upon testing Globe Union’s batteries, Gould determined that they were successful because they removed substantially more electrolyte than did dumping the batteries. (Tr. 264-65). It began a development project called Drain Dry to manufacture a competitive product. (Tr. 121). Gould’s subsequent attempts to accomplish this result by vacuum drying, steam, hot water, and other methods, all proved failures. (Tr. 265-66). On December 13, 1971, Gould employees involved in the Drain Dry project held a meeting to discuss various ideas to develop a process comparable to that used by Globe Union. Among the thirty-two suggestions offered at the meeting were suggestions 'by George Mao and Anthony Sabatino that sodium sulfate be added to the batteries. (See PX3; Tr. 124, 266-67). At trial, Saba-tino testified that some of the data from testing the various experimental batteries indicated growths of lead sulfate, which he thought might be remedied by the addition of sodium sulfate. (Tr. 267). This suggestion proved successful and ultimately resulted in the Drynamic process. (Tr. 268). By 1974, in fact, Gould had completely changed over its operations to the Drynamic process. (See generally Tr. 266-73; 275-76; PX16; PX18). Gould believed that the Drynamic process had significant advantages. First, the batteries were less expensive to produce than dry charged batteries. Second, the batteries were more foolproof at the point of sale, in part because they could be tested before shipping. Finally, the process eliminated the environmental problem of acid disposal which accompanied dry charge manufacture. (Tr. 179-82). Gould sought and obtained two patents on its invention, which are at issue in this lawsuit. C. The Patents in Suit The ’680 patent, the product patent, was issued on April 6, 1976. GBC argues that the entire patent is invalid. The claims alleged by Gould to be infringed read as follows: 1. A lead-acid storage battery comprising a container having a plurality of cell compartments and a plurality of battery elements consisting of a plurality of positive and negative charged plates with separators positioned there-between disposed in the cell compartments, said battery being sealed to at least substantially prevent the ingress of air and said battery elements containing a conditioning amount of a metallic sulfate and residual electrolyte and said battery being otherwise substantially free of electrolyte and being activatable by addition of electrolyte thereto. 2. The lead-acid storage battery of claim 1 wherein said metallic sulfate is sodium sulfate. 12. A lead-acid storage battery comprising a container having a plurality of cell compartments and a plurality of formed battery elements consisting of a plurality of positive and negative charged plates with separators positioned therebetween disposed in the cell compartments, said battery being sealed to at least substantially prevent the ingress of air and having been drained of electrolyte, said battery elements containing a conditioning amount of metallic sulfate and residual electrolyte and said battery being acti-vatable by addition of electrolyte thereto. The claims of the ’165 method patent, issued October 26, 1976, which are alleged to be infringed,- are as follows: 5. A method for making a lead-acid storage battery capable of being stored and thereafter activated by the addition of electrolyte and including a container having a plurality of cell compartments and a plurality of battery elements consisting of positive and negative plates with separators therebe-tween, the battery elements being electrically connected, which comprises: a. providing the battery, b. forming the battery elements by filling the cell compartments with a formation electrolyte and applying current thereto, c. draining the formation electrolyte from the cell compartments. d. filling the cell compartments with an aqueous solution, e. draining the aqueous solution from the cell compartments, f. adding a treating agent in an amount sufficient to condition the battery elements in at least one of steps (b) and (d), with the proviso that, when the treating agent is added in step (b), steps (d) and (e) may be eliminated, said treatment affording, under the conditions of treating, a soluble metallic sulfate, and g. sealing the battery to at least substantially prevent the ingress of air. 7. The method of claim 5 wherein said treating solution includes sodium sulfate. GBC challenges the entire patent as invalid. The process currently used at Gould is a “two-shot” process, and that at GBC is a “one-shot” process. Briefly, Gould’s Dry-namic process involves first filling the battery with low gravity acid and charging. The acid is then dumped and a higher gravity acid containing sodium sulfate is added. After letting that electrolyte stand in the batteries so that it permeates the plates and separators, Gould uses a device called a “rocker dumper” which rocks and dumps the batteries. After this second dump, special vent seals are used to substantially seal the battery; a small hole in the top of the seals permits any gases which build up within the container to exit. To activate Drynamic batteries, electrolyte is added and conventional seals used to replace the special seals. (See Tr. 277-78). GBC argues that the patents are invalid for a variety of reasons: 1) anticipation under 35 U.S.C. § 101 and § 102, 2) obviousness under 35 U.S.C. § 103, 3) inequitable conduct and fraud on the Patent Office, and 4) failure to disclose the best mode of invention under 35 U.S.C. § 112. GBC further contends that even if the patents are valid, its Redi Dri batteries do not infringe. Gould asserts that its patents are valid and tnat certain claims are infringed by GBC. Each side seeks attorneys’ fees and additional damages by alleging that this is an exceptional case under 35 U.S.C. §§ 284 and 285. The Court will first address validity, and thereafter infringement. II. Presumption of Validity As the Third Circuit Court of Appeals has noted: “Normally, the starting point in analyzing a challenge to the validity of a patent is the presumption that the patent is valid, with the burden of demonstrating invalidity by clear and convincing proof resting on the party asserting it.” Aluminum Co. of America v. Amerola Products Corp., 552 F.2d 1020, 1024 (3d Cir. 1977); see 35 U.S.C.A. § 282 (Supp.1981). This presumption is weakened, however, when relevant prior art has not been considered by the Patent Examiner. Id.; see Northern Engineering & Plasties Corp. v. Eddy, 652 F.2d 333, 337-38 (3d Cir. 1981), cert, denied,-U.S.-, 102 S.Ct. 1009, 71 L.Ed.2d 299 (1982); Philips Electronic & Pharmaceutical Industries Corp. v. Thermal & Electronic Industries, Inc., 450 F.2d 1164, 1176 (3d Cir. 1971). In such a case, “the degree by which the presumption is weakened depends on a balancing of the pertinence of the newly cited art against the pertinence of the art actually considered by the Patent Office.” Aluminum Co. of America v. Amerola Products Corp., 552 F.2d at 1025. In this case, GBC has alleged that Gould’s withholding of pertinent prior art from the patent examiner constituted fraud on the patent office. As indicated in the section of this Opinion entitled “Fraud on the Patent Office,” pp. 755-758 infra, the Court finds that the prior art allegedly withheld from the Patent Office was merely cumulative of that already presented. This art is discussed more fully supra, and the Court merely notes here that the failure to cite such art in no way affects the presumption of validity of Gould’s two patents. III. Anticipation GBC alleges that the Drynamic invention was anticipated by three pieces of prior art. The relevant statutory standard for determining anticipation is set forth in 35 U.S.C. § 102, which provides in pertinent part: A person shall be entitled to a patent unless— (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or (e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, ... or (g) before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it.. .. 35 U.S.C. §§ 102(a), 102(e), 102(g). As this Court has recently noted, the standard for anticipation is a high one: To anticipate a patent, ‘[a] prior art reference must teach the very invention of the patent’, ... or disclose ‘a device substantially identical to that claimed under the terms of the patent.’ Further, ‘it must appear that every material element of the claim in question was disclosed by a single prior art reference.’ Grefeo, Inc. v. Kewanee Industries, Inc., 499 F.Supp. 844, 850 (D.Del.1980), aff’d, 671 F.2d 495 (3d Cir.), cert, denied, 454 U.S. 1086, 102 S.Ct. 644, 70 L.Ed.2d 621 (1981) (citations omitted). The material elements of the Drynamic batteries claimed in the patents may be described simply as: 1) a charged battery from which the electrolyte has been removed but which retains residual electrolyte, 2) a metallic sulfate in a conditioning amount within the battery, 3) which produces a battery activatable by the addition of electrolyte. GBC argues that three prior art references — Vesta batteries, the 1930 Vinal textbook, and the Jolley patent — contain these material elements and disclose a substantially identical device. The Court will first set forth the elements of the three prior art references urged by GBC, and then apply the appropriate standard to determine whether any of them in fact anticipate the Drynamic invention. A. Prior Art Alleged to Anticipate 1. Vesta Batteries GBC contends that batteries manufactured by the Vesta Company in the late 1920’s and early 1930’s anticipated the Drynamic invention. Charles Herb Allen had worked for Vesta from 1928 to 1930 and testified at trial about the Vesta batteries. According to Allen, the plates of these batteries were formed in weak acid in tanks, the acid was dumped, the plates then placed in a moist condition in the battery container, and the container refilled with higher gravity acid. The batteries would then be sealed and boost charged. Some batteries would be drained and sealed with a vent cap made of rubber with a tiny hole in the top to relieve gas pressure. (Tr. 1000, 1009-10; DX 66, ex 1). Allen further testified that as part of this process, the wooden separators used in these batteries were boiled in a caustic solution or “liquor” containing sodium hydroxide. (Tr. 1005). He stated that when neutralized with sulfuric acid, sodium sulfate ions precipitated out but remained in solution. (Tr. 1006). This “liquor” was used as a negative plate “expander,” which is a substance put in the paste to keep the negative plate in a satisfactory condition and improve the battery’s electrical performance. (Tr. 1007; see Tr. 1028). At a later point, the precipitate itself, called “coffee,” was used in the negative plates. (Tr. 1020-21). According to Allen, the Vesta batteries were activatable by the addition of electrolyte, and they had improved, although not indefinite, shelf life. (See Tr. 1014; DX66, ex 4; DX66, ex 7). A report which he prepared when Vesta was taken over by National Battery indicated that “vacuum sealing [the Vesta process] does, to a certain extent, prevent batteries from becoming discharged without acid in them and while they are standing idle.” (See Tr. 1022, 1030; DX66 ex 2). Allen also testified regarding batteries manufactured by Vitalic. He had been confronted by a problem with “treeing” during formation of batteries; lead precipitating out in the weak forming acid would penetrate the separators and cause a short circuit. He testified that he had cured this dendritic growth by treating the wood separators with magnesium or sodium sulfate. (Tr. 1026-27). Allen further said that Vi-talic had manufactured charged and dumped batteries, sealed with tape over the vents. (Tr. 1025). 2. Vinal Textbook GBC contends that the second edition of Dr. George Wood Vinal’s textbook entitled Storage Batteries, published in 1930, sets forth all the elements of the Drynamic invention. First, the work contains a reference to “batteries in the moist condition” at page 35: Batteries in the moist condition, to which electrolyte must be added when they are made ready for service, can be stored in a partially charged condition for six months or more. The freshly formed elements for such batteries are drained to remove excess acid before being placed in the jars. The batteries are then sealed to exclude the air, but at the same time provision must be made for the escape of any gas which may be formed within the cells. (PX137, Tab C, at 35). Second, Vinal discusses four different conditions for shipping starting and lighting batteries. One condition is called “Charged Unfilled,” and Vinal notes: “Batteries in the charged unfilled condition shall have cell vents sealed in an approved manner at a time when the plates are fully charged. The cells shall contain no electrolyte other than that which may drain from the plates and separators.” (PX137, Tab C, at 347). GBC’s technical expert, Riñe Kruger, testified that these references taught a charged, dumped, and substantially sealed battery with residual electrolyte. (See Tr. 1092-95). Vinal’s work also contains a section entitled “Patent Electrolytes,” which discusses the use of battery additives as follows: Within the past few years, a considerable number of special electrolytes for use in storage cells, particularly of the starting and lighting type, have appeared. For lack of a better designation for these electrolytes, they have been commonly referred to as patent electrolytes. Very few of them, however, are patented, and for the most part their composition is not revealed by the manufacturers. From the tests and experiments which have been made on this class of substances it may be stated that few, if any, of them have any real merit. They fall naturally into three classes, the first of which includes those consisting merely of ordinary sulphuric-acid solution, of approximately customary densities, sold under trade names at fancy prices and with extravagant claims. The second class of these electrolytes contains substances, such as sodium sulphate, which are supposed to decrease the sulphation of the plates within the battery. The third class is that containing various corrosive agents such as bichromates, nitrates, and similar substances. (PX137, Tab C, at 130-31). Vinal continues by criticizing claims that such additives rapidly charge batteries or that they achieve additional capacity. (Id. at 131). Vinal’s textbook also specifically discusses the use of sodium sulphate to reduce sulphation. He notes: Frequent attempts have been made to reduce the sulphating action of sulphuric acid on the plates of storage batteries by the addition of various substances. Chief among these has been sodium sulphate, which is frequently sold under the name of Glauber salts. Schoop, as far back as 1895, expressed the opinion that the use of sodium sulphate was not beneficial. Its use appears to have originated with some experiments made in England by Preece. Neither is sodium sulphate a satisfactory substance for the removal of the sulphation from the plates. (PX137, Tab C, at 126). Vinal recommends a simple water treatment to remove sulfation, “particularly in the case of batteries of the starting and lighting type.” (Id. at 126-27). GBC’s technical expert Kruger testified that by combining the various references in Vinal, “I am taught how to complete a charged, dumped, treated with sodium sulfate battery, sealed, within the various references. I had to go from one page to another and pick that up.” (Tr. 1207-08). In regard to Vinal’s criticism of patent electrolytes, Kruger testified: “Well, a person skilled in the art reads all material and gets from it suggestions to combine things in various ways to achieve the desired results, and he doesn’t take verbatim all the teachings of any one text, I don’t believe.” (Tr. 1211). He further stated that the language in Vinal was “not a glowing endorsement” of the additive. (Tr. 1212). 3. The Jolley Patent The third prior art reference alleged by GBC to anticipate the Drynamic invention is the Jolley patent, No. 2,650,257, issued August 25, 1953. (DX259). The patent claimed a charged and dumped battery which used a special electrolyte to enable storage for prolonged periods of time. The electrolyte was obtained by “leaching a particular type of impregnated shale rock occurring naturally in a certain geologic formation located in Emery County in the State of Utah, and, further, the conditioning of the plates of the battery while such plates are immersed in this special electrolyte.” (DX259, col. 1, lines 30-37). According to the patent, at formation the special electrolyte would be introduced into the battery, the battery charged, and then discharged to “substantially the ‘dead’ condition.” (Id. at col. 3, lines 1-2). Ordinarily the battery would then be recharged for use. At other times, however, the battery would not be recharged: . .. though occasionally special considerations, such as the necessity of long-distance transportation to the point of sale or use, will make it desirable to dump the “forming” electrolyte and replace it with fresh electrolyte later at the new location. In such instances, it is desirable that the battery be refilled with a similar low gravity electrolyte. (Id. at col. 3, lines 5-12). The patent further identified twenty-one “radicles” or chemicals found in the leach solution, including sodium and sulfate. Kruger testified that when shipped, these batteries were charged, dumped, substantially sealed, and contained sodium sulfate. (See Tr. 1105, 1120). B. Discussion The Court must determine whether any of the three references set forth above discloses a device substantially identical to that claimed by the patents in suit. After carefully analyzing the three references discussed above, the Court holds that there is no anticipation of the Drynamic invention. First, the information presented at trial about the Vesta and Vitalic batteries is simply too sketchy for the Court to rule that they anticipated Gould’s invention. Even if one accepts Allen’s testimony that the Vesta batteries were charged, dumped, and substantially sealed, Allen did not testify that he knew how much, if any, sodium sulfate was present in the “liquor” or “coffee” that was used in the batteries. The Court cannot simply assume that some chemical reaction occurred between sodium hydroxide and sulfuric acid which produced sodium sulfate. There is no evidence to indicate what amount of sodium sulfate, if any, precipitated into solution, nor whether any actually was present in the finished product. In fact, Allen stated that the separators were washed several times after being boiled in solution to remove as much foreign material as possible. (Tr. 1028). The evidence regarding Vitalic batteries is even less conclusive. The fact that the wood separators were treated in some way with magnesium or sodium sulfate does not necessarily mean that the magnesium or sodium sulfate was present in the finished battery. In addition, although Allen testified that so-called “moist” batteries were manufactured at the Vitalic plant, he did not testify whether the batteries he treated with metallic sulfate were these moist batteries or conventional wet batteries. (See Tr. 1025-27). Further, the only evidence that the Vesta and Vitalic batteries contained all the elements of the Drynamic invention was the testimony of GBC’s witness Allen. Although contemporary advertisements making various claims for the Vesta batteries were introduced, they did not mention the use of sodium sulfate in the batteries. (See DX66, Ex. 4-7). Thus the Court must rely on the uncorroborated testimony of a witness based on his recollection of events which occurred over fifty years ago. The often-cited words of the Supreme Court are particularly relevant here: We now have to deal with certain unpa-tented devices, claimed to be complete anticipations of this patent, the existence and use of which are proven only by oral testimony. In view of the unsatisfactory character of such testimony, arising from the forgetfulness of witnesses, their liability to mistakes, their proneness to recollect things as the party calling them would have them recollect them, aside from the temptation to actual perjury, courts have not only imposed upon defendants the burden of proving such devices, but have required that the proof shall be clear, satisfactory, and beyond a reasonable doubt. Washburn & Moen Manufacturing Co. v. The Beat ’em all Barbed Wire Co., 143 U.S. 275, 284, 12 S.Ct. 443, 447, 36 L.Ed. 154 (1892). Such oral testimony must “be subjected to the closest scrutiny.” Id. at-285, 12 S.Ct. at 447. The Third Circuit Court of Appeals has noted three factors which may be used in determining whether oral testimony meets this stringent test: ■ 1) the length of time that had elapsed between the event and the date of trial, 2) the lack of corroborating evidence, and 3) the degree to which it was clear that the witness was testifying from actual recollection rather than a reasoned belief. See Jones Knitting Corp. v. Morgan, 361 F.2d 451, 456 (3d Cir. 1966). In this case, Allen testified about manufacturing processes at Vesta which occurred over fifty years before trial. In addition, as already noted, no other corroborating evidence was introduced to bolster Allen’s testimony that Vesta and Vitalic batteries contained sodium sulfate. Finally, although Allen may well believe that sodium sulfate was present in the batteries, he did not testify that he had ever known this to be a fact. The Court therefore concludes that GBC has not sustained its heavy burden of proving by clear and convincing evidence that either the Vesta or the Vitalic batteries anticipated the Drynamic invention. The Vinal textbook also suffers from defects which preclude it from being an anticipation of Gould’s process. The appellate court has established a standard for determining whether a prior publication constitutes an anticipation: “For a prior publication to be sufficient to defeat a patent it must exhibit a substantial representation of the invention in such full, clear, and exact terms that one skilled in the art may make, construct and practice the invention without having to depend on either the patent or on his own inventive skills.” Universal Athletic Sales Co. v. American Gym, Recreational & Athletic Equipment Corp., 546 F.2d 530, 544 (3d Cir. 1976) (quoting Philips Electronic & Pharmaceutical Industries Corp. v. Thermal & Electronics Industries, Inc., 450 F.2d 1164, 1169 (3d Cir. 1971)), cert, denied, 430 U.S. 984, 97 S.Ct. 1681, 52 L.Ed.2d 378 (1977). The reference must contain “within its four corners, adequate directions for the practice of the patent claim sought to be invalidated.” Con-goleum Industries, Inc. v. Armstrong Cork Co., 339 F.Supp. 1036, 1052 (E.D.Pa.1972), aff’d, 510 F.2d 334 (3d Cir.), cert, denied, 421 U.S. 988, 95 S.Ct. 1991, 44 L.Ed.2d 478 (1975). As this Court has previously noted: “ ‘Unless all of the same elements are found in exactly the same situation and united in the same way to perform the identical function’ in a single prior art reference, ‘there is no anticipation.’ ” Johnson & Johnson v. W. L. Gore & Associates, Inc., 436 F.Supp. 704, 726 (D.Del.1977) (quoting Walker v. General Motors Corp., 362 F.2d 56, 58 (9th Cir. 1966). In the Vinal textbook, the references which in combination allegedly anticipate the Drynamic device are scattered throughout the work. One would have to pick and choose among various pages in Vinal to piece together a battery such as that claimed in the patents in suit. This process of selection would require some inventive skills to determine by simply reading Vi-nal’s book that adding sodium sulfate in a conditioning amount to a moist battery would enhance the shelf life of that battery. The elements of the invention are not in the same location nor are adequate directions provided to manufacture the invention. See Application of Arkley, 455 F.2d 586, 587 (Cust. & Pat.App.1972) (anticipation must clearly and unequivocally disclose claimed matter without any need for picking, choosing, and combining disclosures not directly related to each other). Even more damaging to the use of Vinal as an anticipation is the fact that Vinal clearly teaches away from the use of sodium sulfate as an additive. One reading Vinal’s section entitled “Patent Electrolytes” would reasonably conclude that such substances had little, if any, value in enhancing the operation of a battery; the text explicitly states that “few, if any of these, have any real merit.” (PX137, Tab C, at 130-31). Furthermore, Vinal’s discussion of sulfation expressly notes that sodium sulfate is “not beneficial.” Id. at 126. Thus, one of the essential elements of the invention — the metallic sulfate additive — is missing from the Vinal reference. The Court holds that the 1930 Vinal textbook did not anticipate the Drynamic process. The Jolley patent also fails the test of anticipation. As one court has noted, “The specifications of the cited prior reference must disclose, in substance, the same knowledge and the same directions as the specifications of the patent in suit.” Congoleum Industries, Inc. v. Armstrong Cork Co., 339 F.Supp. at 1052. That court further stated: Furthermore, it is not sufficient to constitute an anticipation that the reference relied upon discloses a process which might, by slight modification, be made to perform the function of the patented process.... Simply because all the ingredients were present does not mean that they would have been used in the proper proportions nor heated to the proper temperature for the proper length of time. Id. GBC has failed to meet its heavy burden of showing that the Jolley patent anticipated the Drynamic batteries. First, the additive recommended by the patent is a leach solution derived from processing a particular variety of shale indigenous to Emery County, Utah. (DX259, col. 3, lines 17-25). The solution so derived contained a high sulfate radical content of approximately 18 grams per liter, as well as a variety of other elements and compounds, including sodium. (See id. col. 3, lines 50-76). Even assuming that sodium sulfate was present in the electrolyte, it is also admitted that the electrolyte contained several elements known to be harmful to batteries, such as iron, manganese, and nickel. (Tr. 1215-16). One looking to the Jolley patent to solve the problem of successfully manufacturing a charged and dumped battery would have to ignore the other nineteen substances present in the leach solution to simply choose to add sodium sulfate. The more logical approach for one studying the Jolley reference would be to use an electrolyte whose chemical composition approximated that of this special leach solution. The patent therefore fails to teach one essential element of the patents in suit — the additive. Two other points further weaken the Jolley reference. First, substantially sealing the battery is not mentioned in the patent. Substantially sealing the battery is an element of the Drynamic invention, and the Court will not simply assume that the Jolley batteries were substantially sealed as opposed to hermetically sealed or unsealed. In addition, there is some uncertainty in the patent as to whether the Jolley patent envisioned shipping batteries in a charged or discharged condition. GBC’s own technical expert testified that he could not be sure of what the patent meant by “discharging the battery to substantially the ‘dead’ condition.” (See Tr. 1113-14; DX259, col. 3, lines 1-2). In light of the uncertainty surrounding the Jolley reference, the Court must conclude that GBC has not by clear and convincing evidence demonstrated that it anticipated the patents in suit. The court therefore rejects GBC’s contention that Gould’s patents are invalid on the grounds of anticipation. IV. Obviousness GBC argues that the Drynamie invention is obvious and therefore the patents are invalid under 35 U.S.C. § 103. That section provides: A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. 35 U.S.C. § 103. The Supreme Court set forth the standards for evaluating a § 103 claim in Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), as follows: Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent are resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness, these inquiries may have relevancy. 383 U.S. at 17-18, 86 S.Ct. at 693-94. The Third Circuit has recently stated its position that the Graham test applies to combination patents as well as other patents. See Ren-go Co. v. Molins Machine Co., 657 F.2d 535, 546 (3d Cir.), cert, denied, 454 U.S. 1055, 102 S.Ct. 600, 70 L.Ed.2d 590 (1981). The Court will therefore first set forth the prior art, then present the differences between Drynamie and the prior art, and finally determine the level of ordinary skill of a hypothetical artisan in the art. The Court will then decide whether the prior art renders the invention obvious. A. Scope and Content of the Prior Art The parties agree that in general terms the relevant art is that of manufacturing lead-acid storage batteries. The prior art presented at trial falls into two categories— prior art concerning “charged and dumped” batteries, and that concerning the use of additives in batteries generally. Each will be addressed separately. 1. Charged and Dumped Batteries Several patents concerning batteries of the “charged and dumped” type were placed before the Patent Examiner during prosecution of the Gould patents. Four such patents were stressed at trial — the Halsall, Carson, Benner, and Amlie patents. The Halsall patent, No. 3,652,341 (PX10), claimed the Globe Union Spin Dry process discussed at pages 737-738 supra. After formation, the battery preferably was inverted and drained. (PX10, col. 4, lines 23-25). The battery would then be subjected to a centrifugal force to remove from seventy to ninety-seven percent of the forming acid. (Id, col. 4, lines 36-44; col. 8, lines 52-56). The battery was then sealed to prevent the ingress of air, and would be activated simply by adding electrolyte. (See id., col. 8, lines 40-60). GBC’s expert Kruger testified that the Halsall patent clearly taught charging, dumping, and spinning the battery to get more electrolyte out of the plates. (See Tr. 1286-87). The Carson patent, No. 3,314,158 (PX59), claimed batteries that were charged and dumped. The plates were then washed and dried while in the case by hot gases in a drying oven and were hermetically sealed. (PX59, col. 1, lines 46-55). The Benner patent, No. 1,737,039 (PX50), claimed a method for storing a battery containing wet plates by “covering the plates with protective, non-reactive material, preferably an aqueous liquid, such as water or dilute sulfuric acid, substantially saturated with lead sulfate.” (PX50, col. 1, lines 39-45). The solution was added after the batteries were charged, dumped, and washed. (Id., col. 2, lines 64-72; Tr. 1289-90). Finally, the Am-lie patent No. 3,834,946 (in DX54) claimed a battery that was charged, dumped, and then filled with water. The water could then be dumped, air introduced into the battery to passivate the negative plates, and the battery sealed. (DX54; No. 3,834,-946, col. 2, lines 9-23; see Tr. 1292-94). In addition, GBC contends that the Vesta, Vinal, and Jolley references discussed supra constitute prior art. Four additional patents have been urged by GBC to be pertinent prior art. These four patents all claim vent seals designed for use in charged and dumped batteries. The 1931 Woodbridge patent, No. 1,816,035 (DX2), noted that: “It is often found convenient to ship and store batteries in a fully charged condition but with the electrolyte removed from the cells. This is commonly known as a charged and dumped condition.” (DX2, col. 1, lines 1-5). The patent further explained that “[ejven when the electrolyte is removed from the cell, there is a residue retained in the pores of the plates and wood separators.... ” (Id., col. 1, lines 12-14). This residual electrolyte frequently caused a chemical reaction which resulted in excessive gas pressure within the battery. The object of the Woodbridge invention was to remedy the problem of sealing the batteries — “to provide a method and means by which storage battery cells in fully charged condition may be stored after the removal of the electrolyte for many months without material loss of capacity and without developing excess pressure.” (Id., col. 1, lines 37-42). The patent claimed a vent seal with a small hole in the top to let out the excess gas accumulation without permitting air to enter and oxidize the plates. (See generally Tr. 1126-30). The other three patents — Petrosky, No. 1,786,961 (DX18), Wallace, No. 1,753,545 (DX19), and Wallace and Petrosky, No. 1,907,911 (DX20) — claimed similar vent seal devices. GBC has also urged as prior art the so-called “Russian reference,” a Russian patent entitled “Method of Protecting Lead-Acid Storage Batteries With Absorbed Electrolyte from the Effect of Deep Discharge.” (See DX6; DX7). An absorbed electrolyte battery is one where most of the electrolyte is stored in some media between the plates, such as in a glass plate or other absorbent material. (Tr. 112-13; 283). Such a battery differs from a starting, lighting, and ignition battery in that internal resistance is not as critical; in an SLI battery, manufacturers strive for the lowest internal resistance by having very thin plates and very thin separators to achieve the most power. (See Tr. 111-13). The Russian reference recommended using sodium sulfate in absorbed electrolyte batteries operating without free electrolyte when they had gone into deep discharge — i.e., the specific gravity of the electrolyte was approaching water — and sulfation had occurred. After using sodium sulfate to revive the batteries, the reference recommended pouring out the liquid in the batteries for transportation. (See DX7). This reference was not placed before the Patent Examiner. The question before the Court is which of these references may be considered to be relevant prior art. This Court has previously noted that “[t]he relevant prior art is that which one skilled in the art would reasonably be expected to look to in order to solve a problem in the art.” Johnson & Johnson v. W. L. Gore & Associates, 436 F.Supp. at 718. The problem to be solved here was how to manufacture a charged and dumped lead-acid battery with extended shelf life. One skilled in the art would reasonably be expected to look to prior art concerning wet, charged and dumped, and dry charged batteries to solve the problem. In addition, it would be reasonable for such a person to look to the related art of vent seals for these batteries as one tool for solving the problem. The four patents urged by Gould — Halsall, Carson, Benner, and Amlie — and the four patents urged by GBC — Woodbridge, Petrosky, Wallace, and Wallace and Petrosky — constitute such pri- or art. In addition, the Vesta, Vinal and Jolley references teach charging and dumping. The Russian reference, however, addresses an entirely different kind of battery, one which has different characteristics from those of an automotive battery, and is not prior art. To briefly summarize the prior art on charged and dumped batteries, batteries from which the electrolyte had been removed after charging were known in the prior art. A number of additional elements such as drying, water dumping, and spinning were also taught to prolong shelf life of such batteries. In addition, substantially sealing these batteries to permit gases to exit without allowing air to enter was known in the prior art. 2. Additives The parties introduced a large number of references regarding the use of battery additives. They can be grouped into two categories — those teaching the use of sodium sulfate and those teaching against it. The earliest reference to sodium sulfate in batteries appears in an 1890 article by Gladstone and Hibbert in the London, Edinburgh, and Dublin Philosophical Magazine and Journal of Science (DX1). The article describes a lecture by a Mr. Preece on secondary batteries, noting: “Among the topics treated was the influence of the composition of the electrolyte on the working of the cell, and it was stated that the addition of sodium sulphate to the acid solution was of very considerable advantage.” (DX1 at 162). The article further explained that “the chief benefit, however, is stated to be that the sodium salt diminishes the chance of objectionable sulphating in the cell, and where such sulphating occurs, enables it to be removed by a charging current much more readily than when sulfuric acid alone is employed.” [DX1 at 162-63]. GBC also introduced a 1912 article by Bennett and Cole published in Transactions of the American Electrochemical Society entitled “The Regeneration of Sulphated Storage Cells.” (DX3). In that article, the authors noted the problems which had arisen with sulfated grids and set forth their solution: “In order, therefore, to obtain a sodium hydroxide solution in the pores of the lead plate, where the largest tendency to sulphate is found, electrolytes with sodium sulphate as electrolyte suggested itself at once.” (DX3 at 304). The article includes the apparent transcript of a discussion of the paper. In this discussion, Dr. Bancroft noted that this treatment could not improve automobile batteries, although Mr. Knight stated that he had used sodium sulfate in ignition batteries with excellent results for six months. (Id. at 308-09). Dr. Bancroft further noted that “[t]here are plenty of references in the scientific literature from which you can make your choice as to whether it is a good thing or not.” (Id. at 309). Bennett indicated that the sodium sulfate concentration was from 1.5 to 2 percent. He further stated that “there is nothing novel about this use of dilute sodium sulphate in the storage battery. This has been known for years, and, in fact, has been practiced with experimental cells in the laboratory at Cornell,” noting and citing the Gladstone and Hibbert article. Id. at 310. A third article advocating the use of sodium sulfate is “The Effect of Certain Impurities in the Forming Acid on Plate Forming Time,” written by Hatfield and Harner and published in the 1936 Transactions of the Electrochemical Society. (DX14). No witness testified regarding this article. The article addressed using sodium sulphate in amounts of 1, 3, 5, 7, and 9 percent by weight in 1.125/1.250 forming acid, and reported “phenomenal” results, stating: “Some of the findings seemed so phenomenal in that additions of sodium could cause a positive plate to clear of sulfate much more rapidly that a complete recheck of the results was made, only to find the check results nearly identical with the first.” (See DX14 at 248-50). GBC also urged the Vesta, Vinal, and Jolley references as prior art regarding battery additives. Gould, on the other hand, cited a variety of references to show that although sodium sulfate was a known additive, the prior art taught against its use in batteries. The 1951 National Bureau of Standards pamphlet entitled Battery Additives (PX44), by P. L. Howard and Geo. W. Vinal, described the results of tests on batteries using additives and concluded: “It appears ... that both sodium and magnesium sulfates are ineffective in improving the condition of the batteries or in prolonging their life.” (PX44 at 29). The 1956 article entitled “Batteries” appearing in Encyclopedia Britannica criticized battery additives or “dopes” in this way: The battery additives most frequently sold consist of a mixture of magnesium sulfate and sodium sulphate. Demonstrations by a salesman are frequently impressive to the uninitiated but practically never is such a test made by comparing identical batteries with and without the addition agent. When tests are made in this fashion, it is usually concluded that the materials are either harmful or useless. The tremendous profits make this traffic difficult to discourage, although better business bureaus, government laboratories, large battery users and battery manufacturers are practically unanimous in disapproving the use of these ‘dopes.’ [PX45 at 2170]. Arendt’s 1928 textbook also indicated doubt about special electrolytes, noting: “The best that can be said of these is that some are harmless to the lead cell; this group comprises those which add sodium or magnesium sulphate to the normal electrolyte; this, however, accomplishes no useful result.” (PX137, Tab B, at 66-67 (emphasis in original)). Arendt’s text further notes regarding sulfation that “the introduction of small amounts (1 to 2 percent by weight) of sodium sulphate or carbonate into the electrolyte has been suggested frequently as a means for correcting unhealthy sulfation, [citing the Gladstone and Hibbert article (DX1)]. However, in general, this treatment has not been found consistently effective.” (Id. at 167). The first edition of Vinal’s textbook, published in 1924, contained the same discussion of additives as that presented in the second edition, discussed at pages 741-742 supra. (See PX137, Tab A, at 120, 124-25). Vinal’s fourth edition, published in 1955, continues the criticism of the use of sodium sulfate to remove sulfation from the plates. (See PX137, Tab E, at 155). His discussion of battery additives, however, is significantly expanded. He states: Since 1915 several hundred of these preparations have appeared with claims, more or less typical, that they extend shelf life, reduce effects of sulfation, reduce operating temperatures, and some even claim to charge the batteries.... Abundant test data are available to show that the performance of batteries treated with such materials [sodium or magnesium sulfate] is not significantly different from that of control batteries subjected to the same tests. (PX137 Tab E at 157-58). He continues by noting that “[t]he ineffectiveness of small quantities of sodium hydrate, carbonate, or sulfate added to the usual sulfuric acid electrolyte was known to authorities more than fifty years ago,” citing a 1902 textbook as authority. Id. at 158. Vinal further cites the National Bureau of Standards study (PX44) to show that the ineffectiveness of additives had been confirmed by an extended investigation. Id. To briefly summarize this prior art, the use of sodium sulfate as an additive in a battery has been known since 1889. Nevertheless, the most recent reference to teach the use of sodium sulfate is the Hatfield and Harner article of 1936. In addition, texts appearing as early as 1928 criticized the use of these additives, and the references of the thirty-five years preceding the Drynamic invention uniformly teach against their use, including a government-sponsored study in 1955 and a leading textbook in the field. B. Differences Between the Prior Art and the Claims At Issue The principal difference between the prior art and the Gould patents is that no charged and dumped battery in the prior art used a sodium sulfate additive to prolong shelf life. The Drynamic process uses sodium sulfate as a principal element of the invention. It was conceded at trial that it was not known how sodium sulfate works— Gould asserts that it increases shelf life, and GBC argues that, if the additive works at all, it has some marginal effect on charge acceptance as the electrolyte approaches water. (See Tr. 797; 800-01). Gould theorizes in its patent that sodium sulfate decreases the solubility of lead compounds, keeping them in solution and thus preventing them from crystallizing to form harmful sulfation. Earlier theories on sodium sulfate indicated that it increased the solubility of lead and dissolved sulfation. C. Level of Ordinary Skill in the Art In determining the level of ordinary skill in the art, the Court must look to the hypothetical “worker in the industry who is attempting to solve the problems the inventor addressed by means of the patented device.” Stanley Works v. McKinney Mfg. Co., 520 F.Supp. 1101, 1109 (D.Del. 1981), aff’d, 681 F.2d 809 (3d Cir. 1982). The parties have agreed that a person of ordinary skill in the art would have two to five years of practical experience with lead-acid batteries or a technical degree and two years experience. (See Tr. 1241-46). Such a person would be charged with knowledge of all the prior art irrespective of whether persons of ordinary skill in the field, or he himself, or anyone else, actually possessed such all-encompassing familiarity with the prior art. See Tokyo Shibaura Electric Co. v. Zenith Radio Corp., 548 F.2d 88, 94 n.18 (3d Cir. 1977). D. Determination of Obviousness As outlined above, charged, dumped, and substantially sealed batteries containing residual electrolyte were known in the prior art. In addition, sodium sulfate as an additive in batteries was known in the prior art, although not taught for thirty-five years. The question before the Court is simply whether it would have been obvious to a hypothetical worker of ordinary skill in the art to add sodium sulfate to a charged and dumped battery to improve its shelf life. It should be noted at the outset that the mere fact that the various elements which make up the Drynamic invention existed in the art does not render Gould’s process obvious. As the Third Circuit appellate court has noted: “A new use for an old process or product is patentable if the new use or application is itself not ‘obvious’ to one skilled in the art.” Allegheny Drop Forge Co. v. Portec Inc., 541 F.2d 383, 386 (3d Cir. 1976). A combination of old elements is not necessarily invalid; indeed, as the Third Circuit has recently pointed out, “every invention is a combination of old elements.” Rengo Co. Ltd. v. Molins Machine Co., 657 F.2d at 545. Judge Learned Hand stated the same proposition over forty-five years ago: [T]he defendant argues that the supposed invention is no more than a substitution of materials familiar to the art in the same uses; an aggregation of which each part performs what it did before. We may concede as much arguendo, for the same may be said of every invention. All machines are made up of the same elements; rods, pawls, pitmans, journals, toggles, gears, cams, and the like, all acting their parts as they always do and always must. All compositions are made of the same substances, retaining their fixed chemical properties. But the elements are capable of an infinity of permutations, and the selection of that group which proves serviceable to a given need may require a high degree of originality. It is that art of selection which is the “invention” and it must be beyond