Full opinion text
OPINION CALEB M. WRIGHT, Senior District Judge. BACKGROUND This is a suit alleging infringement of United States Patent No. 3,113,115 (’115), issued to Dr. Karl Ziegler of the Max Planck Institute for Coal Research in 1963. The plaintiff, Studiengesellschaft Kohl mbH, (SGK), is the successor in interest to Professor Ziegler. The defendant Dart Industries is the successor corporation to Rexall Drug & Chemical Company. This action was initiated in July, 1970. The life of the patent expired before trial. This Court has jurisdiction under 28 U.S.C. § 1338(a). Briefly, the ’115 patent teaches a system for the polymerization of ethylene and other lower olefins, including propylene. The catalyst system consists of alkyl aluminum halides, especially diethyl aluminum chloride, and titanium halides, especially titanium tetrachloride. The interaction of these components produces a catalyst that has proven singularly active, effective and efficient in producing high grade plastic polymers. SGK contends that Dart’s process for the production of commercial grade polypropylene infringes SGK’s patent. Dart defends first, that the patent is invalid because anticipated by and obvious from the prior art; second, that its catalyst system is so distinct from the system disclosed by the SGK ’115 patent that it does not infringe; and finally, that the equitable doctrines of laches and estoppel render the ’115 unenforceable because SGK unreasonably delayed instituting any infringement action, affirmatively misrepresented its enforcement intentions and, in so doing, materially prejudiced Dart. The 115 patent has been the subject of previous litigation. The United States Court of Appeals for the Fifth Circuit addressed the issue of the validity of the 115 in its 1973 opinion in Ziegler v. Phillips Petroleum Co., 483 F.2d 858, cert. denied, 414 U.S. 1079, 94 S.Ct. 597, 38 L.Ed.2d 485 (1973). The Fifth Circuit upheld the validity of the patent and found it to be infringed by the catalyst system used by Phillips. While this Court is and has been aware of Phillips, this Opinion reflects independent findings of fact and conclusions of law based on all the evidence in the case presented during February and March of this year. The Opinion addresses the issues of validity, infringement and equitable doctrines in that order. The sheer magnitude of the evidence presented precludes addressing each issue raised. Failure explicitly to mention an issue or argument in this Opinion indicates only that, after due consideration, the Court found the issue or argument to be without merit or of no consequence to the outcome of the case. This Opinion represents the Court’s findings of facts and conclusions of law as required by Fed.R. Civ.P. 52. I. VALIDITY Dart Industries argues that U.S. Patent 3,113,115 issued to Karl Ziegler, Heinz Breil, Heinz Martin and Erhard Holzkamp on December 3, 1963, is invalid. Dart contends that the claims and content of the ’115 violate 35 U.S.C. §§ 102 and 103, arguing that the ’115 was anticipated by and obvious from prior art in the field. In support of these arguments, which proved to be the principal part of its case, Dart offered a wide range of evidence, much of it highly technical. Central to Dart’s thesis, however, are two strands of evidence: the German Patent No. 874,215 granted to Dr. Max Fischer of Badische Anilin & Soda Fabrik (BASF); and the experimental work done at the Du Pont Company which resulted in a number of U.S. patents, particularly those to Dr. Arthur W. Anderson. The Fischer work was first patented in 1943, but was not issued or published by the post-war Federal Republic of Germany until 1953. The patent was not known even to members of the scientific community until the later date. Dr. Fischer’s laboratory was destroyed during the latter part of World War II, as were his experimental notes and data. Consequently, there is very little contemporaneous information to aid the Court, or any other reader, in interpreting the Fischer patent. The patent itself is very short — only three and one-half typed pages as translated — and contains only one working example. The Du Pont work is much better documented and has been effectively supplemented and explained by both deposition and live testimony. The Du Pont research bears only on the question of obviousness under § 103, not anticipation under § 102. Ziegler’s ’115, entitled to priority dates based on foreign applications, pre-dates the relevant Du Pont patents to Anderson et a 1. A. Anticipation Dart’s anticipation defense is based on its assertion that the Fischer patent meets the standards of 35 U.S.C. § 102(a) and (b). Since the Fischer patent was awarded before even the earliest of Ziegler’s German applications, the question of anticipation reduces to whether Fischer actually describes the same invention as that claimed in the ’115. The Court heard an enormous amount of testimony about the Fischer work, most of it post hoc experimentation and interpretation of what is actually described in the Fischer patent. As noted, the destruction of contemporaneous records and the brevity of the patent itself made such an approach almost inevitable. In evaluating a claim of anticipation, the Court will apply a test of strict construction. See Research Corp. v. NASCO Industries, Inc., 501 F.2d 358 (7th Cir.), cert. denied, 419 U.S. 1096, 95 S.Ct. 689, 42 L.Ed.2d 688 (1974); Alco Std. Corp. v. Tenn. Valley Auth., 516 F.Supp. 431 (W.D.Tenn.1981); 1 Chisum, Patents § 3.02 p. 3-5 (1982) (“The standard for novelty, that is, for “anticipation,” is one of strict identity.”). To anticipate the ’115, the Fischer patent must disclose “the very invention of the [’115] patent” or “a device substantially identical to that claimed under the terms of the patent.” The Third Circuit has further elaborated the test for anticipation: For a prior publication 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. Anticipation, to be effective, must be both clear and contained in a single reference. The publication argued to anticipate must contain “within its four corners, adequate directions for the practice of the patent claim sought to be invalidated.” Congoleum 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). “Anticipation cannot be shown by combining more than one reference to show the elements of the claimed invention.” To invalidate the ’115 on grounds of anticipation by Fischer, Dart must show that the Fischer patent clearly, fully and independently demonstrates the essentials of the ’115 claims Dart challenges. To make this determination, the Court must examine and compare the ’115 and the Fischer patent. Briefly, Ziegler’s ’115 patent claims a polymerization catalyst of the general formula RR’AIX, where R and R’ are organic radicals, especially alkyl radicals, and X is a halogen, combined with a heavy metal salt, usually a titanium chloride. The most widely used organo-aluminum component is diethyl aluminum chloride (DEAC or Et2 A1C1). The ’115 teaches the use of these claimed catalyst components for the polymerization of “lower olefins up to about C5, and particularly ethylene.” SGK, as successor in interest to Karl Ziegler on the ’115, has brought this infringement action against Dart on the basis of Dart’s use of DEAC and titanium trichloride (TiCU) to polymerize propylene (C3H6). SGK claims that propylene, as well as ethylene, polymerization is covered by the ’115. The Fischer patent relates to the production of polyethylene. In particular, the language of the Fischer patent claims novelty in the ease with which the invention permits the production of solid or near-solid polyethylene as opposed to the oils predominantly formed by previous methods. It is known that one can polymerize ethylene or ethylene-rich gases to form lubricating oil-like products with the aid of aluminum chloride under pressure and at elevated temperature.... It has now been found that the course of the polymerization can be influenced in such a way that the formation of liquid polymerizate can be suppressed in favor of the formation of higher solid substances and that these will be formed in a greater amount if one uses as catalyst aluminum chloride with addition of titanium tetrachloride and, if necessary, with addition of other halides of the FriedelCrafts catalyst series. These solid substances are formed especially easily, moreover, if one also adds hydrogen chloride-fixing metals, such as iron, zinc, or aluminum in finely divided form, especially aluminum powder. The Fischer patent teaches the combination of aluminum powder (Al), aluminum chloride (A1C13) and titanium tetrachloride (TiCU) to polymerize ethylene. Nowhere in the patent is there any mention of diethyl aluminum chloride or any organo-aluminum molecule. Indeed, none of the substances listed above as catalyst components even contains a carbon source for the formation of the organo-aluminums, essential to the claims of the ’115. Thus, on its face the patent does not clearly indicate that the polymerization involves or may involve intermediate products that might include dialkyl aluminum halides. As strict as the test for anticipation may be, it is not based on whether a trial judge can find within the four corners of the asserted anticipatory reference the full, clear and exact representation of the challenged patent. Thus, while it is to Dart’s disadvantage that Fischer does not on its face mention or unambiguously indicate the dialkyl aluminum halide component or reaction product that is the essence of the ’115 system, that absence is not conclusive. If, from the text of the Fischer patent, a chemist could “practice the invention [of the ’115] without having to depend on the [’115] patent or his inventive skills,” then the ’115 claims will be anticipated. Dart introduced voluminous testimony in its attempt to prove that the Fischer system as disclosed necessarily and inevitably evolves organo-aluminum reaction products that are active in the observed polymerization of ethylene. Dart further argued that skilled chemists of the 1950’s would have looked at the Fischer patent and understood that the evolution of organo-aluminum species was a part of the process even though no organo-aluminums are mentioned in the text of the patent. After a careful review of all the evidence, and for the reasons set forth below, the Court finds that Dart has failed to meet the burden of proving that the Fischer patent anticipates Ziegler’s T15. 1. Initial Experimental Evidence In preparation for its invalidity defense, Dart employed Dr. George A. Olah, formerly of Case Western Reserve University and presently on the faculty of the University of Southern California, to run a series of tests aimed at determining whether the Fischer process, as disclosed in the patent, evolves organo-aluminum compounds in the course of polymerizing ethylene. Dr. Olah ran a number of tests reproducing Fischer with experimental variations that he expected would allow him better to understand the character of the Fischer reaction. Counsel for both parties examined Dr. Olah extensively on the nature of his experiments and the validity of his conclusions. See, e.g., T-2450-2870, 4153-4330. Based on testimony and questions during his first appearance at trial, Dr. Olah left Wilmington, returned to his lab, conducted additional tests, and was recalled for further testimony. In the course of his testing to detect the presence of alkyl aluminums in the supernatant of the Fischer mixture, Dr. Olah used some of the most current analytic technology, including nuclear magnetic resonance (NMR) studies and other non-destructive analytic techniques developed in the last several years. Despite the extent and duration of his effort, Dr. Olah never clearly detected organo-aluminum compounds in any experimental runs that exactly duplicated the proportions of aluminum powder, aluminum chloride, titanium tetrachloride, and hydrocarbon solvent that were enumerated in the working example of the Fischer patent. The conclusion of Olah’s report reflected his belief that, given a choice between ascribing the Fischer results “to some kind of organo-metallies related catalysis, or ... to a typical Friedel-Crafts polymerization,” an experienced chemist of the time would undoubtedly have opted for the former. The choice is tendentious and does not reflect the inquiry before the Court at this time. Given the absence of any mention of organo-metallies in the Fischer patent, the relevant inquiry is whether an experienced chemist of the time, looking at the patent and the results it reached under the conditions it discloses, would have concluded, without further suggestion, that the mechanism of the reaction not only represented a significant departure from traditional Friedel-Crafts catalysis, but, further, that the actual mechanism must have involved organo-metallics. Olah’s conclusion, correct as far as it goes, does not meet the standards for anticipation under 35 U.S.C. § 102. In the course of his report, prepared before trial and therefore not reflecting the experiments he conducted during the course of the trial, Olah states that “no ethyl-aluminum compound could be detected in the supernatant heptane layer of the Fischer polymerizations.” While Olah offers an explanation for the inability of NMR spectroscopy to detect organo-aluminums which he nonetheless believes to be present, the inability directly to prove their existence, even when seeking to do exactly that, suggests that a chemist reading the Fischer patent in 1953 would not inevitably arrive at the polymerization catalyst taught by Ziegler’s ’115 patent. 2. Evidence from Repeated Experiments After he had returned from California with additional test results, Olah testified that a carbon-13 NMR spectrum of a particular experimental run indicated to him the presence of “a very small amount of an ethyl aluminum compound.” Similarly, Olah concluded that an aluminum-27 spectrum of the same experimental sample indicated “the presence of some organic aluminum compound, but I couldn’t make, based on these spectra, any determination of the exact nature.” The sample on which these spectra are based reflected the proportions of aluminum powder (lg) and aluminum chloride (lOg) of the Fischer example in half the amount of heptane solvent (250ml rather than 500ml of heptane). The experimental run did not use any titanium tetrachloride. The temperature was maintained at 65°-72°C during Olah’s repeat experiment. The only indication of temperature in the Fischer example is that “ethylene is pressured in so that the temperature reaches 155°.” Despite these experimental differences and the diligence of Dr. Olah’s investigation, Dr. Bailey, SGK’s expert, examined the data and spectra upon which Olah had commented and concluded that “you’d have to have a great imagination to look at that curve and say that there was evidence of a material, an ethyl aluminum compound .... ” T-4387. It is not at all unusual to find experts in disagreement, but here the data are those developed by Dart’s expert to supplement the conclusions one would draw upon examining the text of the Fischer patent. The fact that Olah’s support for the inherency of ethyl aluminum chlorides is so weak, even though going beyond the “four corners” of the Fischer patent, leads the Court to conclude that Dart has failed to meet its burden of proving anticipation. The Court finds that the Fischer patent does not exhibit the substantial representation of the invention of the ’115 in sufficiently full, clear and exact terms to allow the skilled chemist to recreate the challenged ’115 claims without the benefit of any source outside of Fischer. Thirty years after the fact, experts of extraordinary skill in the field, armed with exceptional technology and, perhaps more important, hindsight, did not conclusively demonstrate that ethyl aluminum chlorides are created by the Fischer reaction. It is unlikely that a skilled chemist who read the Fischer patent would independently surmise and be able to practice the dialkyl aluminum halide and titanium tetrachloride combination of the T15 patent. The Court finds that Fischer does not anticipate the T15. B. Obviousness Section 103 denies patentability to inventions that are obvious even though “not identically disclosed or described as set forth in section 102 of this title.” 35 U.S.C. § 103. Thus, the Court’s inquiry into Dart’s defense that the ’115 is invalid because obvious will be broader than the previous inquiry on the defense of anticipation. In evaluating a claim of obviousness under § 103, the Court applies the standards set out by the Supreme Court in Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. 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 693-694. Because Graham provides a certain organizational regularity in inquiries as to obviousness, the Court will, for the most part, structure its analysis around the Graham standards as elaborated and interpreted by more recent rulings. Before undertaking an analysis based on Graham elements, however, it will be useful to explain the experimental work done at Du Pont and how it relates to or demonstrates prior art. The Du Pont work, examined below in some detail, is not itself prior art relative to the Ziegler ’115 patent being challenged here. The Court rejects Dart’s arguments to that effect. At best, Du Pont’s investigation was contemporaneous with Ziegler’s. Dart, in introducing voluminous testimony on the Du Pont work, sought to establish that Du Pont, working from sources completely independent of Ziegler, developed a polymerization catalyst system functionally similar to that developed by Ziegler. Furthermore, Dart argues that the relative rapidity with which the Du Pont team accomplished its work reinforces the obviousness of the solution to those skilled in the art. Implicit in Dart’s arguments are the assumptions that Du Pont’s work was clearly independent of Ziegler and that the Du Pont team’s research represented the work of people “having ordinary skill in the art to which said subject matter pertains.” 35 U.S.C. § 103. The accuracy and import of these assumptions will be examined, where relevant, in the course of the Court’s analysis of Dart’s arguments for obviousness. Dart’s obviousness theory, like its argument relating to anticipation, hinges on the Fischer patent as prior art. The basic theory of obviousness is that knowledge of the Fischer patent and two articles by Hall & Nash written in the 1930s would lead the chemist of 1952-54 to conclude that solid polymers of ethylene could best be obtained through organo-aluminum-based catalysts. Hall & Nash, it is argued, provided information that would cause the skilled chemist to conclude that the interaction of aluminum powder, aluminum chloride, titanium tetrachloride and ethylene would produce as an intermediate and active catalyst component alkyl aluminum compounds that would necessarily include the dialkyl monohalide forms specified in the claims of the 115 patent. 1. Natta ’987 as Prior Art Dart argues that Natta’s United States Patent No. 3,587,987 (’987) is prior art against the 115 based on the ’987’s July 27, 1954 Italian priority date. The Court finds that, in arguing the Natta patent, Dart may not assert the Italian priority date of a U.S. patent as a prior art reference. The Court agrees with the interpretation of §§ 119 and 102 in Application of Hilmer (Hilmer I), 359 F.2d 859 (Cust. & Pat.App.1966) and finds that a prior art reference patent is effective only as of its U.S. filing date. See Studiengesellschaft Kohle v. Eastman Kodak Co., 616 F.2d 1315, 1337 (5th Cir. 1980); Application of Hilmer (Hilmer II), 424 F.2d 1108 (Cust. & Pat.App.1970); Eli Lilly & Co. v. Brenner, 375 F.2d 599 (D.C.Cir.1967); 3 Chisum, Patents § 1405[3] pp. 14-56-14-59 (1982). Dart argues that Sperry Rand Corp. v. Knapp-Monarch Co., 307 F.2d 344 (3d Cir. 1962) represents a different position than that adopted by the Fifth Circuit, D.C. Circuit and Court of Customs and Patent Appeals. After a re-examination of Knapp-Monarch, this Court is persuaded that the position it adopted in Waterman-Bic Pen Corp. v. W.A. Shaeffer Pen Co., 267 F.Supp. 849, 854 (D.Del.1967) is not inconsistent with the Third Circuit’s opinion in Knapp-Monarch. The Court finds the rule reflected by Hilmer I and II to represent the better interpretation of the statute as written and does not read Knapp-Monarch to prohibit it from adopting that position here. Natta’s ’987, when asserted by Dart as a prior art patent reference, is entitled only to its U.S. filing date of June 8, 1955. See SGK v. Kodak, supra, 616 F.2d at 1338. Consequently, it is not prior art against the ’115. 2. The Prior Art: Hall & Nash The Hall & Nash articles describe the authors’ observations in a series of ethylene polymerizations in which aluminum powder was added to the typical Friedel-Crafts catalyst, aluminum chloride. Hall & Nash observed that the addition of metallic aluminum increased both the rate of the polymerization and the viscosity of the lubricating oils produced. Hall & Nash did not produce or distill a solid polyethylene. Their goal was to produce synthetic lubricating oils. All the Hall & Nash data reflect experiments run at 100-200 °C. The single recorded attempt to operate below that range was performed at 15° and produced no detectable reaction. In contrast to the later work of Fischer and the Ziegler team, there is no mention of any heavy metal compounds; no titanium chloride component is present in the Hall & Nash system. From the perspective of Dart’s argument to this Court, the principal discovery of the Hall & Nash work is that the combination of aluminum powder, aluminum chloride and gaseous ethylene produced ethyl aluminum chlorides. Hall & Nash specifically observed and characterized both diethyl aluminum chloride and monoethyl aluminum dichloride. Because the Hall & Nash articles preceded Fischer, Dart argues that a skilled chemist of the time would infer from the presence of aluminum powder and aluminum chloride in the Fischer reaction that organo-aluminums, including dialkyl aluminum halides, must be evolved. 8. Fischer with Hall & Nash The Fischer patent makes only passing reference to the state of the art in 1943. Fischer does not mention Hall & Nash or, as pointed out earlier, any organo-aluminum. The sole reference to work preceding his own refers to ethylene polymerizations “to form lubricating oil-like products with the aid of aluminum chloride under pressure and at elevated temperature.” Fischer does not mention aluminum powder as a component previously discovered to have beneficial effects on product viscosity. When the Fischer patent does mention aluminum powder, it implies that the utility of aluminum powder is part of the new discovery. This does not suggest a strong relation between Fischer and Hall & Nash. Moreover, Fischer sets out aluminum chloride, titanium chloride and FriedelCrafts halides in reference to “the catalyst:” [Solids] will be formed in a greater amount if one uses as catalyst aluminum chloride with addition of titanium tetrachloride and, if necessary, with addition of other halides of the Friedel-Crafts catalyst series. The reference to aluminum powder does not occur until the following sentence: “[Solids] are formed especially easily, moreover, if one also adds hydrogen-chloride fixing metals, such as iron, zinc or aluminum, in finely divided form, preferably aluminum powder.” Together, the two sentences could plausibly be read to imply that the aluminum powder was not part of the active catalyst and that its function was to bind hydrogen chloride that, were it evolved in the reaction, could produce “cracking” of the hydrocarbons. Regardless of whether this is what Fischer actually intended, it plausibly suggests that the Hall & Nash reaction producing aluminum alkyls may not have been either in the forefront of the mind of Fischer or of a chemist reading the Fischer patent. The parties devoted considerable attention to the experimental differences between Hall & Nash and Fischer. The principal difference is that Hall & Nash recommended a 3:1 ratio of aluminum chloride to aluminum, using 30 grams of A1C13 and 10 grams of Al. See DX-48 at p. 483-85. Hall & Nash also experimented with higher proportions of aluminum powder, but found that while more aluminum alkyls were produced, the ethylene product tended to be less satisfactory. Id. The Fischer working example teaches a ratio of 30g AlCl3:10g TiCl4:lg Al. Thus, the A1C13:A1 ratio is ten times greater in Fischer than in Hall & Nash. Secondary differences between Hall & Nash and Fischer, such as differences between parameters of temperature, pressure and the presence or absence of a heptane solvent, are of significantly less consequence in determining the likelihood of whether the two would naturally be read together by a chemist of ordinary skill in 1953. 4. Other Prior Art References Dart cited a number of other references designed to prove that one or more of the components of the ’115 patent were obvious from the prior art. The Court has taken these into consideration, but finds none individually significant enough to merit comment here. 5. The ’115 and the Prior Art The principal difference between the pri- or art, especially Fischer, and the ’115 is the ’115’s clear and intended use of dialkyl aluminum halides as indispensible catalyst components to polymerize lower olefins, including but not limited to ethylene, to solid, high molecular weight polymers. As discussed above, Fischer never explicitly mentions organometallics. Hall & Nash did not produce solid polyethylene. Neither Fischer nor Hall & Nash specifically addressed the possibility of polymerizing propylene or other olefins. The ’115 explicitly applies to “olefins up to about C5.” The nature of this difference has been explored in the preceding subsections and in the earlier discussion of anticipation. Consequently, the Court will now briefly consider other differences that, within the § 103 analysis dictated by Graham, supra, may bear upon the issue of obviousness. a. Physical Characteristics of the Product The Fischer patent characterizes its polyethylene product as “yellow brown masses ... which, after purification through extraction, form an almost white, loose powder.” “The solid polymerizate formed is insoluble in common organic solvents.” In the Fischer working example, 10 grams of TiCU, 30g AICI3 and lg Al plus 165 atmospheres (atm) of ethylene produced 145g of solid product and 194g of oils and other amorphous residues. The ’115 initially produces a “paste consisting of the solvent used and a white ethylene polymer," which when worked up by extraction methods comparable to those in Fischer yields “a snow-white polyethylene.” The working examples of the ’115 uniformly indicate that the proportionate yield of solid polymer substantially exceeded that produced in the Fischer working example. The Fischer patent does not analyze its solid product in terms of crystallinity, molecular weight or linearity. Professor Koenig’s analysis of the products of Dr. Olah’s attempts to reproduce Fischer in terms of these variables is not particularly persuasive evidence that the powder in Fischer approached the Ziegler products in crystallinity or molecular weight. The parties never agreed on which, if any, of Olah’s samples closely approximated Fischer. Since the Fischer work itself is silent on the point, the Court will not undertake a comparison of Fischer and the ’115 on these characteristics. The Court notes in passing, however, that the polyethylene commercially available before the ’115 system became known was substantially more branched than that claimed in the ’115. Earlier samples showed 5-10 methyl groups per 100 carbon atoms whereas the ’115 product contains .1-3 methyls per 100 carbons. b. Experimental Conditions The Fischer patent teaches the use of “elevated temperatures, preferably at 130 to 180 °C and elevated pressures, preferably at 30 to 80 atmospheres or above.” The Fischer example operates at temperatures that reach 155° and 58 atmospheres. By contrast, the 115 operates efficiently across a wide range of temperatures and pressures, including experimentally mild conditions. Polymerization will occur at atmospheric pressure and at room temperature or below. These characteristics sharply distinguish the 115 system from the free radical polymerization methods generally in use up to that time. Free radical polymerization typically requires extremes of both temperature and pressure and is consequently very expensive for commercial processes. The mild conditions under which the 115 system operates enormously increased the commercial practicability of olefin polymerization. 6. Findings As To Obviousness The determination of what constituted ordinary skill in the relevant art at the time of the Ziegler 115 invention will not be separately made by the Court in this Opinion. The issue was not specifically addressed at trial. The determination of ordinary skill is so closely intertwined with the Court’s overall findings on the obviousness defense that it will be made in the context of that analysis and those findings. Two aspects of Dart’s obviousness defense depend importantly on issues of ordinary and extraordinary skill and will be dealt with below. a. Ziegler’s Statements on Fischer In January, 1954, Ziegler wrote to von Kreisler, his German patent counsel, regarding an addition to the German patent applications he was filing. These applications later became the basis for Ziegler’s ’115 and ’332 patents in the United States. In the letter, Ziegler included the following passages; I would like to draw to your attention another thing as follows. We have become aware of a patent application by the BASF. The subject matter of this application is undoubtedly a forerunner of our new processes. Only the inventors did not recognize what they had in their hands.... The true mechanism of the process according to the BASF patent is thus the primary formation of a small amount of ethyl aluminum sesquichloride.. .and these genuine aluminum-organic compounds lead then in combination with titanium tetrachloride to the solid polyethylenes as also obtained by us. Naturally, the inventors did not see this connection. Furthermore, they have everything else than a smooth reaction. The excess in aluminum chloride.. .and finally, quite different temperatures are employed for the reaction, than are required by us. All told, our new processes thus have nothing to do at all with this BASF application. With the now almost unbelievable widening of the entire field which even a short time ago could not be foreseen, I fear that quite a dangerous situation has arisen. There are indeed here and there in the literature hints which can easily lead a clever man, if he combines them with our publications in the aluminum-organic field, to this new field. Dart argues that the statements in the quoted passages indicate that Ziegler himself knew that Fischer’s patent (the BASF application) and Hall & Nash made Ziegler’s own polymerization invention obvious. The Court cannot agree. First, despite his examination of the Fischer patent and his recitation of its features similar to his own work, Ziegler nonetheless concluded that his processes were wholly different than those disclosed by Fischer. While Ziegler saw and admitted similarities, most of which he read into the Fischer patent based on his own knowledge, he concluded that his system was different. Second, Ziegler’s theorizing about the evolution in Fischer of ethyl aluminum compounds did not represent the application of “ordinary skill in the art of which said subject matter pertains.” 35 U.S.C. § 103. Ziegler was probably the world’s leading authority on organo-aluminums. See T-2324. Even in the quoted passage, he refers to his previous work in the area. His ’115 and ’332 patents and the fact that he was awarded the Nobel Prize in 1963 further support the Court’s findings in this respect. Given his background in organo-metallic, especially organo-aluminum, chemistry, the Court finds that Ziegler would read organoaluminums into the Fischer patent more quickly than would the ordinarily skilled polymer chemist of the day. Ziegler’s assessment of the inevitability of combining Fischer with “other references”, presumably Hall & Nash, actually represented hindsight on Ziegler’s part. Ziegler and his team had been over that ground, whether aware of Fischer or not, and already performed the work that supported the applications of which he wrote. In reading Fischer, Ziegler was the captive of his own work just as subsequent scientists speculating about the actual mechanism of Fischer are captive to the chemistry that has intervened, especially the work of Ziegler and Natta. The Court notes that Dr. Tornqvist’s most recent publication on the subject of Ziegler and Fischer strongly concludes that “[nothing could be more wrong” than the “suggestion that Ziegler’s discovery was in some way influenced or followed as a logical consequence of Fischer’s disclosures.” Tornqvist goes on to state that while he believes that alkyl aluminums are formed in Fischer, “the composition of the catalyst used in the example of the Fischer patent is such that no useful Ziegler catalyst can possibly be formed....” The effect of “hindsight” on the Court’s analysis of obviousness will be further discussed below. Dart argues that the Breil doctoral thesis, in which Breil examined the Fischer patent in light of Breil’s own experiments, further indicates that Ziegler, as Breil’s teacher and thesis adviser, and Breil, as a co-inventor of the patent, understood Fischer to read on their own work with aluminum alkyls. Dart relies principally on the following passage from Breil’s thesis which refers to the Fischer patent: “It seems to me natural that a catalyst of the type of my catalysts was formed in tests of this type.” The Court finds that Breil’s statement, as was the case with Ziegler’s, does not represent the conclusions of a chemist of ordinary skill in the art at the time. While, as a graduate student, Breil is not to be held up as someone extraordinarily accomplished or beyond the normal range of ability, his close association with Ziegler and intimate familiarity with the work that led to the ’332 and ’115 patents did make him especially likely to find alkyl aluminums in the Fischer work or other patents or research he encountered. Moreover, Martin testified that, at the time Breil was writing, his conclusions were purely speculative. The SGK research team had not performed any experimental analysis of Fischer at that time. T-3849. In addition to the Ziegler letter and Breil thesis, Ziegler commented upon the Fischer patent in the course of his defense to the German Opposition proceedings brought by BASF and the Nullity proceedings subsequently brought by Ziegler. While Ziegler clearly had an interest in resolving these proceedings in his favor, his September 25, 1957 analysis of Fischer is worth noting for the distinctions it draws between Fischer’s and Ziegler’s work. The opponents... would like to consider it today as completely selfunderstood that the expert while reading the Max-Fischer-Patent had to arrive immediately at the known combination: Hall & Nash produced organic aluminum compounds from aluminum, aluminum chloride and ethylene and it was, therefore, selfunderstood and obvious to prepare the polymerization catalysts by mixing such aluminum compounds with titanium tetrachloride. Precisely the opposite conclusion is correct. [0]ne cannot avoid the data that also other metals such as iron and zinc can be used... instead of aluminum. Max Fischer.. .[prefers aluminum but] clearly states: It also works with other metals,” and this is decisive. No metal-organic compounds are known from iron.... a very special inventive effort was required to recognize that contrary to these data of the Fischer-patent and by Hall & Nash the organic aluminum compounds were extremely important for the development of the polymerization catalysts. In support of this interpretation, Dr. Martin testified that, if reacted with TiCU and AICI3, iron would not produce organic compounds. T-3871-873. While Dr. Olah did not directly concur in this analysis, he did indicate that iron would be considerably less active than aluminum or zinc in producing organo-metallics. T-2778-2780. To the extent that other scientists of the time regarded the formation of organo-iron compounds as unlikely or impossible, the Fischer reference to iron as a possible substitute for aluminum tends to teach away from the recognition of organometallics as the active intermediate product of the Fischer process. Prior art that teaches away from the methods actually used is relevant to indicate nonobviousness. To the extent that Fischer teaches away from organo-metallics, their recognition and use in the ’115 more clearly represents inventive and patentable work. See General Battery Corp. v. Gould, 545 F.Supp. 731 (D.Del.1982); W.L. Gore & Assocs., Inc. v. Carlisle Corp., 529 F.2d 614 (3d Cir.1976). Overall, the Court finds that statements by Ziegler and Breil about the inherency of organo-aluminums in the Fischer mixture are unpersuasive evidence of obviousness. Ziegler and all the members of his team were far more likely than most polymer chemists of the day to read organo-aluminums into the Fischer patent. b. The Du Pont Work United States Patent No. 3,050,471 claims a catalyst system for the production of solid ethylene polymers and co-polymers. The patent was issued to Arthur W. Anderson, et a1. of Du Pont and, along with other patents issued to Anderson and his Du Pont research team, reflects the experimental work on olefin polymerization done at Du Pont during the mid-1950s. Dart argues that the work done by Anderson and other Du Pont chemists during that period starting from Fischer, Hall & Nash and other prior art references demonstrates that Ziegler’s invention was obvious within the meaning of 35 U.S.C. § 103. The Anderson ’471 patent teaches reacting “a titanium trihalide with an organometallic compound containing at least one hydrocarbon radical bonded to a metal....” The patent specifically claims titanium trichloride (TiCl3) and alkyl metal halides “sufficient to lower the valence state of the titanium, at least in part, to below three.” The patent specifically discloses diethyl aluminum chloride (DEAC) as an effective reducing agent although DEAC is not a component of any of the catalysts described in the claims of the ’471. Thus, the Du Pont system is quite similar to the ’115 which is entitled to an earlier filing date and, hence, to priority. In early February of 1954, Dr. Merckling at Du Pont performed experiments along the lines of the example in Fischer. T-2111, DX-56. By mid-February, Merckling and others, including Truett, had done enough work with the Fischer system to persuade Anderson and other senior chemists that the work was significant and that Fischer had not grasped that significance because he perceived his system to be merely an advancement of Friedel-Crafts catalysis. Because the Du Pont chemists had been able to produce polyethylene of high molecular weight, a feat beyond known Friedel-Crafts methods, they concluded that the Fischer work involved something novel. T-2113-2118. Based on the experiments, a literature review, and his own knowledge and creativity, Anderson intuited that the active component in Fischer was a reduced valence species of titanium. T-2120, 2127, 2227-29, 2270-74. Consequently, the exploratory group, comprised of a number of Du Pont chemists under Anderson’s direction, undertook to investigate various methods of reducing titanium tetrachloride. In the course of this research, the Du Pont team investigated a number of reducing agents. One technique was direct reduction with finely divided metals. A great deal of early attention was devoted to the reduction of TiCL and TiCl3 through alkylation with a Grignard reagent. Grignards produced more high molecular weight polymer and less oil than catalysts produced by aluminum-reduced titanium. There is no evidence of any alkyl aluminum compound being used until sometime in March or April of 1954. Anderson testified that in March, the alkyl aluminum being used as alkyl aluminum iodide. An April 27, 1954 report to members of the chemical department mentioned di-butyl aluminum iodide (Bu2A1I) and butyl aluminum di-iodide (BuA1I2) in combination with TiCl4, but mentioned no ethyl aluminums or alkyl aluminum chlorides. The report stated that: So far the best halides are titanium, vanadium and zirconium and the best second component either magnesium or the Grignard reagent.... At the moment there is no clear view of the mechanism of this catalysis. Polychem’s thoughts... favor organometallic intermediates somewhat reminiscent of Ziegler’s polymerization with aluminum alkyls. Anderson testified that through June of 1954, the team, which had grown in size and increased the intensity of its work, was primarily concentrating on Grignards. T— 2323. In early August, additional actors became involved in directing the Du Pont research effort toward turning out patents. By that time, Du Pont had information that Ziegler had developed a low pressure polymerization process. Gresham, Anderson’s superi- or at Du Pont, began to press for further activity. On August 3, Anderson wrote a report to Gresham outlining the difference between Ziegler’s and Anderson’s patent applications and the Du Pont strategy to find areas undominated by Ziegler. [D]u Pont has claimed alkylating agents broadly with each transition element, whereas Ziegler has claimed each alkylating agent class separately with all the transition elements. This makes it easier for us to find areas undominated by Ziegler— However, it is important to remember that finding an undominated new alkylating agent only permits us to use it without infringing his patents. It was not until August and the addition of Hyson to the exploratory group that alkyl aluminums were actively investigated and used to produce solid polymers. See T-3116-3125. Hyson understood his task to be to find a catalyst system more efficient than those produced by Du Pont to that date. T-3131. In the abstract to an experiment run during this period, Hyson wrote: “The titanium tetrachloride/lithium aluminum R4 catalyst system is the most versatile of any yet developed for the production of linear polyethylene.” T-3124. The statement was based on comparing this TiCh/organo-aluminum with the work done by others prior to that date. T-3124-25. After an extensive review of the Du Pont work, including the deposition testimony of those not available to testify in person, the Court finds that the efforts of the exploratory group do not demonstrate that Fischer and Hall & Nash or other prior art render Ziegler’s ’115 obvious. Du Pont chemists read the Fischer patent early. Despite a major effort, involving many experienced scientists with high priority access to the resources of Du Pont’s experimental station, the Du Pont group explored a number of alternatives before investigating alkyl aluminums. If, as Dart argues, ethyl aluminum chlorides are “obviously” the mechanism of the Fischer patent, one would expect Du Pont to have looked into them more immediately. Du Pont’s failure to do so takes on additional significance in light of the recognition by Hyson and, subsequently, the polymer industry at large, that alkyl aluminum halides were particularly effective. Du Pont’s work represented a major effort by fine scientists, headed by at least one, Anderson, who possessed more than ordinary skill in the relevant art. Yet, despite Anderson’s exceptional insight in attributing the activity in Fischer to reduced valence titanium species, the team under his direction did not arrive at the organo-aluminum component essential to the Ziegler ’115 until after an intensive and sustained effort. Fischer and Hall & Nash may have been the starting point for the Du Pont work, but the path that Du Pont’s skilled and highly motivated scientists took cannot be said to demonstrate that Ziegler’s work was obvious from the prior art. The ordinarily skilled polymer chemist of 1953-54 would not have read Fischer plus Hall & Nash and concluded that alkyl aluminums inhered in the Fischer reaction or that they were responsible for the activation of the catalyst by reducing TiCl4 to a lower valence. The information available in the pri- or art required the application of significant additional inventiveness before it resulted in the catalyst system that Dart seeks to challenge. c. Secondary Considerations In addition to the basic inquiries it mandates, Graham, supra, 383 U.S. at 17-18, 86 S.Ct. at 693-694, counsels investigation of a number of secondary factors relevant to obviousness. Because analysis of these factors merely reinforces the Court’s conclusion, based on the primary factors already examined, that the ’115 is not obvious from the prior art, they will be treated rather briefly. 1. Commercial Success There can be no doubt that the ’115 was an enormous commercial success. By radically changing both the conditions under which commercial polymers could be made and the physical characteristics of the polymer product, Ziegler catalysts revolutionized the plastics industry. Other than Dart, the principal producers of olefin polymers throughout the United States and much of the rest of the world have taken licenses under the ’115 or been found to infringe the ’115. See Ziegler v. Phillips Petroleum Co., 483 F.2d 858 (5th Cir.), cert. denied, 414 U.S. 1079, 94 S.Ct. 597, 38 L.Ed.2d 485 (1973). By contrast, Dart was the only company known to have taken a license under the Anderson ’471 patent. Evidence of commercial success unequivocally indicates that the scientists and business people of the industry overwhelmingly concluded that Ziegler’s work represented an important commercial breakthrough. The Court finds the widespread and immediate industry recognition to be strong evidence of the nonobviousness of the ’115. As was stated in another case in which an obviousness defense was rejected: “All of the indicators of unobviousness approved by the courts are present: . . .the revolutionary commercial success; the enormous savings gained by using the invention; the fact that every significant tire manufacturer except Firestone has taken a license... . ” General Tire & Rubber Co. v. Firestone Tire & Rubber Co., 349 F.Supp. 345, 360 (N.D.Ohio 1972). 2. Unsolved Needs The evidence that many major chemical companies were working to find a more economical way to produce high quality polyolefins suggests that the industry felt the lack of a catalyst system such as Ziegler’s. The extent and intensity of the Du Pont work supports the conclusion that olefin polymerization was being actively studied by some of the finest chemists in the world. Similarly, the fact that Ziegler’s work won him the 1963 Nobel prize for chemistry indicates the intellectual as well as commercial importance of his work. The fact that a solution to the problem was being actively and widely pursued, but was actually solved by Ziegler and the SGK team further supports the Court’s finding of nonobviousness. The fact that the solution to the problem solved... .had baffled workers of extraordinary skill in the catalytic art for many years, but, when revealed, was immediately and extensively adopted, establishes the existence of patentable invention worthy of protection by the courts under the patent laws. Mobil Oil Corp. v. W.R. Grace Co., 367 F.Supp. 207, 235 (D.Conn.1973). 8. Hindsight Finally, the Court finds that the superficial persuasiveness of Dart’s arguments and assembled exhibits is substantially undercut by keeping clearly in view the difference between the hypothetical inventor of 1953 working in his shop with all the prior art references, and the current expert witness looking now at what was available then. The current scientist brings with him or her the “baggage” of thirty years of astonishing advances in polymer chemistry. It is a far different inquiry that he or she undertakes, and what is undoubtedly chemically obvious now was not “obvious” under the patents laws to the 1953 inventor to whom the prior art was readily available. In arguing its case, Dart has assembled a substantial number of references that seem to read on one or more elements of the ’115. Skillful arguments create a tempting path along which the hypothetical inventor is asserted unavoidably to have travelled. But there is hindsight involved; not only in discerning the path, but in choosing the starting points. The fundamental fact remains that Ziegler and SGK developed the revolutionary system that others actively sought. That the solution now seems elegantly simply does not vitiate the importance of the fact that Ziegler discovered it first. “After the fact, Firestone has assembled dozens of references from which they argue obviousness, yet they cannot explain why the industry did not think to use this ‘obvious’ invention.... ” General Tire & Rubber, supra, 349 F.Supp. at 360. Courts must resist the significant temptation to include the art of the invention being challenged among the data or knowledge imputed to the inventor of the time. While the defendant now argues in retrospect and with the benefit of hindsight, that an analysis of the prior art indicates that the puzzle might have been put together, had the right parts only been placed in the proper position, the problem was not one of putting together a specific chemical substance. Mobil Oil Corp., supra, 367 F.Supp. at 235. Thus, it has been recognized to be “absolutely essential to guard against piecemeal reconstruction of the [challenged] invention by using the [challenged] patent as a blueprint.” Tate Engineering Inc. v. U.S., 477 F.2d 1336, 1345 (Ct.C1.1973). The Court finds that when the entire range of evidence is scrutinized without the deceptive clarity of hindsight, the Ziegler T15 patent is demonstrated to be both nonobvious and not anticipated. Even when all the references are viewed in conjunction with all the testimony taken at trial, the evidence falls short of “clear and convincing” proof that the method disclosed by the patent would have been obvious to a person with ordinary skill in the relevant art at the time. Trio Process Corp. v. L. Goldstein’s Son’s Inc., 461 F.2d 66, 72 (3d Cir.), cert. denied, 409 U.S. 997, 93 S.Ct. 319, 34 L.Ed.2d 262 (1972). C. Prosecution Before The Patent Office Dart argues that the manner in which SGK prosecuted the ’115 before the Patent Office manifested sufficient bad faith that the T15 should be held invalid or unenforceable. 1. Failure to Cite Fischer The Court finds no fraud in SGK’s failure to cite Fischer to the Patent Office Examiner. Dart’s argument to this effect is rejected. 2. Inventorship Dart argues that the inventors named on the face of the T15 — Ziegler, Martin, Breil and Holzkamp — do not accurately reflect the inventorship of the patent. Dart contends that the inventorship determinations for both the ’332 and the ’115 were manipulated to allow Ziegler’s claims for polypropylene and DEAC under the ’115 to share the early foreign filing dates more properly attributable to the applications associated only with the ’332. The Court rejects these arguments and finds in them no reason to declare the 115 invalid or unenforceable. The issue was raised before the Patent Office in a different proceeding and resolved in favor of SGK. The Patent Office opinion stated: Finally, in view of [exhibits] which show the acceptance by the German Patent Office of the naming of the four inventors, Ziegler, Martin, Breil and Holzkamp ... we hold that said application complies with the requirement of 35 U.S.C. § 119 that the privilege afforded thereby be claimed by the inventors designated in the United States application. Moreover, the Patent Office accepted the change in inventorship list and held “that Ziegler has complied with 35 U.S.C. § 116 and Rule [of Practice] 45(c). Furthermore, we can find no basis in the record for concluding that there was any deceptive intention by any of the inventors in originally omitting the names of Breil and Holzkamp when the involved Ziegler application was filed.” In addition to this previous decision by the Patent Office, the Court finds, as is discussed below in the context of pioneer status for the ’115, that each of the named inventors played a role in the essentially unitary program of research that led to both the ’332 and the ’115. The Court finds adequate factual bases for listing all four men as inventors of the ’115. In the light of the available evidence, the Court finds that Dart has failed to prove its essentially technical inventorship defense by clear and convincing evidence. See Eli Lilly & Co. v. Premo Pharmaceutical Labs, 630 F.2d 120 (3d Cir. 1980). The Court holds that the ’115 patent is valid. II. INFRINGEMENT Dart argues that its catalyst system does not infringe the T15 patent. In order to evaluate these claims, the Court must establish the scope of the claims of the ’115. See Lockheed Aircraft Corp. v. U.S., 553 F.2d 69 (Ct.C1.1977); Tate Engineering, Inc. v. U.S., 477 F.2d 1336 (Ct.Cl.1973). See also Kodak, supra, 616 F.2d at 1323-24. The first place to turn is to the patent of itself. A. Scope of the ’115 1. Claims The initially stated object of the ’115 is “a new catalyst useable, inter alia, for the polymerization of ethylenically unsaturated hydrocarbon products.” Propylene (C3H6), diagrammed in the margin, is undeniably an ethylenically unsaturated hydrocarbon or olefin. The olefinic bond is the “double bond” attaching one of the terminal carbons to the middle carbon atom. Propylene, as diagrammed, is an alpha olefin (oC -olefin). The fourth-mentioned objective of the patent is the invention of “a polymerization catalyst for lower olefins up to about C5 and particularly ethylene.” Propylene, C3 H6, is an olefin included within the range of “up to about C5.” See Phillips, supra, 483 F.2d at 876. Indeed, it is only one methyl group larger than ethylene which is specifically mentioned as a monomer to be polymerized by the patented catalysts. Propylene is also disclosed as one of the monomers to which ’115 catalysts will be applied. Claim 1 of the ’115 states: 1. Polymerization catalyst essentially consisting of an aluminum compound having the general formula RR’AIX, in which R is a member selected from the group consisting of hydrogen, alkyl radicals and aryl radicals, R’ is a member selected from the group consisting of hydrogen, alkyl radicals and aryl radicals, and in which X is a member selected from the group consisting of hydrogen, halogen atoms, alkoxy radicals, aryloxy radicals, secondary amino radicals of the formula in which R” and R” ’ are hydrocarbon radicals, secondary acid amide radicals of the formula in which R” and R” ’ are as given above, mercapto, radicals, and radicals of carboxylic acids of the formula in which R” is as given above, with a heavy metal compound selected from the group consisting of salts, freshly precipitated oxides and hydroxides of metals of groups IV — B, V — B, and VI — B of the periodic system, including thorium and uranium, metals of group VIII of the periodic system and manganese. Dart’s DEAC falls squarely within the class of aluminum compounds RR’AIX in which R and R’ are both alkyl radicals. Specifically, in DEAC the univalent alkyl radicals are ethyl groups, C2H5. Dart’s diethyl aluminum compound satisfies the general formula of ’115 where X is a halogen atom, in this case chlorine. The heavy metal component of a ’115 catalyst, as described in Claim 1, clearly includes TiCl4. Titanium is a metal of Periodic Group IVB. Combined with chlorine, it forms a heavy metal “salt” within the definition of the patent. TiCl3 falls within the same general category of “heavy metal salts” as defined under the terms of the patent, as does TiCl4. See Phillips, supra, 483 F.2d at 878. Thus, a DEAC + TiCl a combination falls squarely within the description of Claim 1 of the ’115. DEAC and various titanium chlorides are more narrowly specified in Claim 4: Catalyst according to claim 1, in which said aluminum compound is a dialkyl aluminum monohalide and in which said heavy metal compound is a compound of a metal from group IV-B of the periodic system. As discussed above, DEAC is a dialkyl aluminum monohalide and TiCl4 and TiCl3 are heavy metal compounds comprised of a group VI-B heavy metal, titanium. This is true of various species of TiCl3. Regardless of whether the TiCl3 is produced by reducing TiCl4 with aluminum powder, with DEAC, with aluminum triethyl (ATE or Et3 Al) or with hydrogen, the TiCl3 produced is still a salt of titanium and chlorine. Similarly, changes in the orientation of the titanium and chlorine atoms within the TiCl3 molecule, described as /3 -TiCl3, oC -TiCl3, y -TÍCI3, and y -TÍCI3, do not violate the description of claim 4. These forms are all titanium salts. 2. Development The ’115 embodies work done by Professor Karl Ziegler and his team of chemists during the early 1950s. It differs from his ’332 patent in that it covers dialkyl aluminum compounds as opposed to the aluminum trialkyls. The two patents represent revolutionary discoveries that came out of a unitary research effort by a single team of scientists. Ziegler was widely regarded as a prominent authority on organoaluminum compounds and their application. T-2324. In 1963, Ziegler was awarded the Nobel Prize in chemistry for his work in developing organo-metallic catalysts for polymerizing olefins. The catalysts that Ziegler and his team developed revolutionized the production of high molecular weight polymers of simple hydrocarbons. These catalysts are crucial in making production of these plastics, especially propylene, commercially practicable. Before Ziegler’s work, there was doubt about whether propylene could be polymerized at all. See Standard Oil Company (Indiana) v. Montedison, S.p.A., 494 F.Supp. 370, 374 (D.Del.1980), aff’d, 664 F.2d 356 (3d Cir.1981), cert. denied, - U.S. -, 102 S.Ct. 1769, 72 L.Ed.2d 174 (1982). Through application of Ziegler’s discovery, Natta at Montecatini, Martin at the Max Planck Institute, and, subsequently, many others were able to produce crystalline polypropylene on a commercial scale. Indeed, the plastics produced by improvements on the basic organo-metallic catalyst specified in the ’115 have become ubiquitous, particularly in the United States. In professional circles, the catalysts themselves have come to be known as “Ziegler catalys