Full opinion text
MEMORANDUM AND ORDER CROW, District Judge. The complaint in this action, filed October 1, 1976, alleges that defendant has in the past and continues to infringe certain claims of U.S. Patent No. 3,940,495 issued on February 24, 1976. The complaint requests damages for past infringement in-eluding the trebling thereof, an injunction enjoining future infringement by defendant, and attorney fees. The parties have agreed to reserve an accounting for damages until after a finding by the court of patent validity and infringement by Far-Mar-Co (Pretrial Order, pp. 1 & 2, Dk. # 172). Defendant denies infringement, asserts affirmative defenses of patent invalidity and/or unenforceability, has counterclaimed for a declaration pursuant to 28 U.S.C. § 2201 and § 2202 of patent invalidity and/or unenforceability, and seeks to recover its costs and attorney fees. Defendant has also asserted counterclaims premised on the Sherman and Clayton Acts (Answer and Counterclaim, Dk. # 8). By earlier order of this court, these claims were separated from the patent issues and await trial at a later date (Dk. # 165). The trial of this case spanned the period from August 2, 1982 through August 25, 1982. The record before the court includes the testimony of 14 witnesses appearing at trial, together with the deposition testimony of 44 persons. A relatively small portion of the deposition testimony was read at trial. Over 1300 individual exhibits were admitted, a few of which are duplicates and many of which are multiple page documents. On September 10, 1982, closing arguments were held, and modified findings of fact and conclusions of law were filed. The parties thereafter submitted post-trial briefs, the last of which was filed January 19, 1983. The court has carefully reviewed the testimony and exhibits, examined the proposed findings and briefs, and has endeavored to address all of the issues advanced at trial. FINDINGS OF FACT I. General Findings 1. Plaintiff Ralston Purina Company (hereinafter Ralston) is a Missouri corporation having its principal place of business at Checkerboard Square, St. Louis, Missouri 63188 (Pretrial Order Stipulation, Dk. # 172). 2. Defendant Far-Mar-Co, Inc. (hereinafter Far-Mar-Co) is a Kansas corporation having its principal place of business at 1600 N. Lorraine, Hutchinson, Kansas 67501 (Pretrial Order Stipulation, Dk. # 172). 3. The patent-in-suit, No. 3,940,495, entitled “Protein Product and Method of Forming Same,” lists Ronald J. Flier as inventor and the Ralston Purina Company as assignee (R200). 4. U.S. Patent No. 3,940,495 issued from patent application Serial No. 324,295, filed January 17, 1973, which was a continuation of application Serial No. 600,471, filed December 9,1966, which was a continuation-in-part of application Serial No. 381,-853, filed July 10, 1964 (Pretrial order stipulation, Dk. # 172). (Application No. 600,-471 will hereinafter be referred to as the “1966 application” or the “CIP application” and Application No. 381,853 will hereinafter be referred to as the “1964 application” or the “parent application.”) 5. Plaintiff has been and remains the owner of the patent-in-suit since its issuance (Pretrial Order Stipulation, Dk. # 172). II. The Invention of the Patent-in-Suit 6. The invention which is the subject of the Flier Patent in this lawsuit is the first successful process, and resultant product, for directly and continuously restructuring oil seed particles, preferably soy particles, into a textured, chewable, fibrous, meat-like food product. 7. Restructuring is basically accomplished by extrusion working defatted, moistened soy particles under elevated temperature and pressure, into a flowable, plastic mass which is expanded into a restructured, fibrous, meat-like food product by suddenly releasing the pressure (R200; Tr.Tr. pp. 161-65). 8. Claims 1 and 18, two of the broader independent claims of the patent, read as follows: “1. A method of treating a protein-containing vegetable material having no more than a minor amount of fat and a protein content of at least about that of solvent-extracted soybean meal to form a porous fibrous food product comprising the steps of: moistening the protein-containing vegetable material to a moisture content of at least about 20% by weight and maintaining the pH of the mixture in a range which is slightly above or slightly below the neutral point of the vegetable material; mechanically working the moistened protein-containing vegetable material under temperatures in excess of 212°F. and elevated pressures; forcing the heated, pressurized, mechanically worked material through first restricted orifice means, maintaining the material under elevated temperatures and pressures as it emerges from said first restricted orifice means; the heat, pressure and mechanical working of the material prior to passage through said first restricted orifice means and the heat and pressure applied to said material after passage through said first restricted orifice means being such that upon release of the pressure it has the capability of forming a fibrous structure and then extruding the material through second restricted orifice means into an environment of a pressure substantially lower than said elevated pressures causing expansion of the product with moisture evaporation and the formation of a puffed and fibrous meat-like structure. 18. The method of restructuring a soybean material to form a food product from a predominately solvent-extracted soybean material, comprising the steps of mixing said solvent-extracted soybean material having a protein content at least about that of solvent-extracted soybean meal with sufficient water to permit the resulting mixture to be passed through an extruder; confining the mixture within an extruder and increasing the pressure and temperature of the mixture while subjecting it to mechanical working until the mixture, upon release of the pressure, is capable of becoming a fibrous structure', said temperature during said mechanical working being increased substantially above 212°F.; and forcing the mechanically worked, heated mixture under pressure through a restricted orifice, upon discharge from which the pressure is released, whereby the mixture is restructured into a puffed product of reduced density having a meat-like texture.” 9. The screw-type extruder which may be employed to practice the process consists essentially of a barrel having a helical screw mounted inside which is rotated axially by a drive motor. One end of the barrel is closed off except for one or more restricted orifices through which the extruded product exits to the atmosphere. The other end of the barrel is open to permit flow of the material to be processed to the screw. Intermediate dies or restrictions such as steam locks may be provided along the length of the barrel to increase pressure and mechanical working of the material. The schematic drawing of the patent-in-suit shows an extruder having an intermediate flow-impeding restriction plate. The barrel, typically, is also provided with cooling and/or heating jackets along its length whereby, for example, the intake section is cooled by a medium such as cold water and the section near the final die is heated by a medium such as steam. See generally R200, cols. 5 & 6; R235; R236; F-1566. Pioneer Contribution to the Art of Texturizing Soy Protein 10. Prior to Flier’s process utilizing extrusion technology, the art of texturizing soy protein was limited to the spinning process invented by Robert Boyer and patented in 1954 (R213). Boyer, who conceived the notion that a textured, meat-like product could be obtained from soy material, utilized textile technology to create a spun textured product from soy isolate (R222, p. 10). The process, however, was, and remains, expensive, and as meat substitute the spun product has not been price competitive with real meat (Tr.Tr. p. 127). 11. Subsequent to the Flier invention, the term extruded textured vegetable protein products has become recognized by industry and government. Extruded textured vegetable protein products are made by mixing defatted soy flour of protein content about fifty percent, but varying as low as about forty-four percent and has high as about seventy percent, with water (and adding flavor, color and various nutrients as desired), and passing the mixture through an extruder under conditions which cause the mixture to puff upon exiting the extrusion die. This process causes the extruded product to be expanded and to exhibit a fibrous characteristic in its structure. After extrusion, the products are typically dried to approximately eight percent moisture and have a shelf life stability for at least a year under normal conditions of storage. They are capable of being rehydrated without losing structure and shape and have a chewy texture. One part of the dry product absorbs approximately two-three parts of water. The bacterial count is normally low. In addition to water absorption, they also have good fat absorptive properties. They can be colored and flavored to resemble many types of familiar foods. In the most popular commercial form, they contain approximately fifty percent protein (R260 — Defendant’s Admission 113). 12. Textured vegetable protein is utilized in the food industry as a meat extender and to some extent as a meat analog (Tr.Tr. pp. 129, 132-33, 542-45). The Department of Agriculture, in February, 1971, sanctioned the use of up to thirty percent of the product of the Flier invention in the place of meat in school lunch programs (R.226). 13. Both at trial and in prior publications, Dr. Aaron M. Altschul, a renowned nutritionist, scientific author, food scientist and former nutrition adviser to the United States Secretary of Agriculture praised the invention of texture in soy foods as a significant historical advance in food technology (Tr.Tr. pp. 134-35; R220, last page, last paragraph). Dr. Altschul has proclaimed that “[t]he ability to produce texture out of soy flour will probably rank with the invention of bread as one of the truly. great inventions of food. It now becomes possible to separate protein and fat in products that are modeled after meats and it is possible to allow people the enjoyment that they expect from meat-like compounds and yet avoid the excesses in calories, fat, and high proportion of saturated fat that ordinarily come from such consumption.” (R221, p. 29; Tr.Tr. page 136). 14. Defendant has promoted its Ultra-soy product in issue, made by the accused process, as described by Dr. Aaron M. Altschul, and with the depiction of Dr. Altschul along with the quotation, “I view the invention of textured soy protein foods along side the invention of bread as one of the great food developments of all time” (R14, p. 7; R13, p. 3). 15. The invention of extruded vegetable protein has been typified by defendant’s own director of research, Dr. Wayne E. Henry, to a representative of the United States Department of Agriculture as both a “significant break through” and a “major break through” in the food industry (R30; R31). 16. The formation of fibrous, meat-like, textured plant protein food products by extrusion was characterized by defendant’s technical expert, Dr. Judson Harper, at trial (Tr.Tr. p. 1779) and in a book he authored on extrusion of foods (F-1298, p. 90, para. 4) as having “greatly expanded the horizon for the production of price competitive plant protein” and being “the process system of choice.” 17. The invention of the Flier patent represents a significant advance in the art of texturizing vegetable protein material and is accordingly entitled to the status of a basic, pioneer or generic contribution to the art (Tr.Tr. pp. 2374-78). ■Evidence of the Date of Flier’s Invention 18. The invention was first conceived and reduced to practice by Flier in St. Louis, Missouri, at the Ralston Purina Company facilities in late January or February, 1963 (R202A; R203; Tr.Tr. p. 176). 19. A drawing of the equipment upon which the invention was practiced was made by Flier on March 5, 1963, as part of a written report entitled, “Progress Report for February” (R202P-Flier Exh. 2). 20. Another drawing was made on April 17, 1963, as part of a written disclosure of the invention to the legal staff of Ralston Purina Company. This drawing was also part of an April 22, 1963, report (R202PFlier Exh. 7 & 8). 21. The first written description of the invention was hand written by Flier and was subsequently typed with the date February 13, 1963 (R202A;' R203). The earlier handwritten document has not been found. A series of operational experiments was performed on the invention and was recorded in documents shortly thereafter (R203). 22. The conception and reduction to practice of the invention was first disclosed to laboratory personnel and to Mr. Flier’s superior, Douglas Hale, on the day of the invention (Tr.Tr. p. 191). Testimony of the activities of these persons and independently generated documents corroborated the invention (R202P-Flier Exh. 3A-H, 6, 9, 13A-K). 23. Flier’s conception of the invention in late January or February, 1963, is substantiated by the actual reduction to practice, eating of the product and testing of the product by Flier (Tr.Tr. pp. 187-92), Mr. Hale and others (R202K) in the laboratorial pilot plant, correspondence on February 18, 1963, by Mr. Hale to the legal staff of Ralston Purina Company (R202P-Flier Exh. 9), correspondence on March 5, 1963, describing the invention by Flier to Ralston Purina management (R202P-Flier Exh. 2) and institution of a dog digestion experiment (R202P-Flier Exh. 3A-H, 13A-K). 24. Diligence was exercised from the start of the project in January/February, 1963, until actual reduction to practice (R202A). 25. Flier and other employees of Ralston Purina Company were diligent in efforts with regard to what they considered the “exciting” invention, as evidenced by continuous activity thereafter in the weeks and months following the initial discovery. A record of these efforts is set forth in the Interference 96,355 record, particularly R202P-Flier Exh. 1-13 and testimony relating thereto (R202J, K, L). 26. The Flier invention was reduced to practice in late January/February, 1963, by processing moist, solvent defatted, fifty percent protein, soybean meal, using a screw-type extruder, as set forth in R202PFlier Exhibits 1A and IB (R202A). III. Prosecution History of the Patent-in-Suit 27. As already indicated, Flier applied for a U.S. patent on July 10, 1964 (R255). The examiner rejected the originally presented claims on May 9, 1967 (R255, p. 19), and also amended claims on November 28, 1967, in a final rejection (R255, pp. 49-52). While this application was pending, Flier filed a continuation-in-part application on December 9, 1966 (R256). Following final rejection of the claims as amended in the 1964 application, and after a personal interview with the examiner on March 25, 1968, the 1964 case was abandoned. (R255, pp. 54-56). 28. The examiner rejected the claims as originally presented in the CIP application, noting that they did not materially differentiate from claims disallowed during prosecution of the parent application (R256, p. 36). Thereafter, following another personal interview with the examiner, certain claims were amended in a responsive action of April 10, 1968, and certain of these claims were allowed in an office action dated May 14, 1968 (R256, p. 66). The Interference and Peoria Litigation 29. Interference 96,355, styled Wilding v. Flier v. Atkinson, was declared in the United States Patent and Trademark Office on May 23, 1968, involving the pending patent applications of Morris Wilding (assignor to Swift & Co.), Flier and William Atkinson (assignor to Archer-Daniels-Midland Co.) § 9R202B). The proceeding was initiated to determine priority of invention between parties whose applications were deemed to contain common patentable subject matter (See 35 U.S.C. 135; 37 CFR 1.201). 30. The sole count of the interference was a phantom count, prepared by the patent interference examiner (R202B) and determined by him to be patentable. The count read as follows: The process of preparing an expanded food product which comprises mechanically working a protein mix of a solvent-extracted oil seed proteinaceous material having protein concentrations of at least 30 percent and water in a concentration of 15 to 60 percent, at a temperature above 200°F. and under elevated pressure sufficient to convert said mix into a flowable substance, extruding said flow-able substance through an orifice into a medium of lower pressure. Atkinson was awarded senior party status, being accorded the benefit of his earliest application, filed May 21, 1964. Flier was accorded intermediate status, having been accorded the benefit of his earliest application, filed July 10, 1964. Wilding was accorded juniormost status by reason of his filing date, March 1, 1965 (R202A). 31. Extensive discovery was undertaken by each of the parties to the interference. Also, considerable testimony was offered, as reflected by Exhibit R202, the interference record. Priority of the count was eventually awarded to Flier in a detailed opinion issued by the Board of Patent Interferences on August 13, 1971 (R202A). The primary bases for this award, regarding Flier’s dates of conception and reduction to practice, are essentially as set forth in Findings 18-26, supra. 32. The decision of the Board of Patent Interferences was appealed by both Wilding and Atkinson to the United States District Court for the Southern District of Illinois in Peoria. At the time of these appeals, there were also pending in that court two suits for patent infringement previously brought by ADM against Ralston and Swift and Company. The basis for the latter suits was United States Patent 3,488,770, owned by ADM, which had matured during the time period in which the interference was pending in the PTO from an application which was styled a continuation-in-part of the application involved in the interference. This continuation-in-part application claimed a particular type of product which could be made by practicing the process which formed the count of the interference (F-1295). 33. Extensive discovery was again undertaken by each of the parties to the Peoria litigation. The discovery on occasion ranged beyond the activities of the parties to include the prior work of certain individuals who, along with Atkinson, are claimed by defendant to have practiced the process of the patent-in-suit before Flier. This discovery included the deposing of Oak Smith, an associate of Wenger Manufacturing (R265M-R2650), as well as Sheldon Baer, of Anderson, IBEC (formerly the V.D. Anderson Company) (R265F). 34. Just prior to trial, settlement discussions were held at the request of the court, as a result of which the Peoria litigation was settled on April 6, 1972. Under the settlement agreement, the parties executed a cross-licensing arrangement with each party granting to the other license rights under their respective patent or patent applications then in controversy in the litigation. The settlement agreement provided that each party would grant to any third party making a written request a nonexclusive license under the claims of any subsisting or future patent. The agreement also specified certain terms of such a license (F-1146). Continued Prosecution of the Ralston Application 35. Prosecution of the Flier 1966 application was stayed during the pendency of the interference appeal (37 CFR 1.212). On July 13, 1972, counsel for Flier filed with the primary examiner a document, styled “Condensed Summary of District Court Record” (R264A) and numerous depositions, exhibits and specimens referenced in that document (R265A-R265W60 and R266A-R266EE). This document contained, in addition to the summary of the Peoria discovery, a discussion of the positions of the parties and the testimonial, documentary and physical evidence each urged in support of their position at the time of the Peoria settlement. 36. Also filed at this time, accompanying an amendment submitting modified claims for prosecution, was a list of patent and publication references deemed pertinent to these claims (R256, pp. 119-34). These claims and cited references, however, were not evaluated by the examiner. Since, at the time the interference was declared, certain claims of the CIP application had been allowed in a final office action (see R256, p. 66), the examiner held that further prosecution of the 1966 case was closed (R256, pp. 135-37). 37. Flier thereafter filed a substitute oath expressing his concern that, as to subject matter of the allowed claims not common to his parent application, he had reason to believe this matter may have been in public use or on sale in the United States more than one year prior to the filing of the CIP application. As the examiner noted in a responsive action dated March 2, 1973 (R256, pp. 145-52), Flier’s concern related to certain alleged sales of products by ADM and Swift before December 8, 1965. The examiner determined the effective date of the then allowed claims to be the filing date of the CIP application, and required an investigation into the facts surrounding these sales. 38. Flier responded with a new substitute oath expressing his belief that subject matter not common to the parent application was not patented or described in any printed publication in any country, or in public use or on sale in the United States more than one year before the filing of the CIP application (R256, pp. 157-59). In an accompanying response, it was explained that no evidence was produced by these companies establishing what steps, materials, and conditions were employed in the manufacture of products allegedly sold (R256, pp. 153-56). On May 4, 1973, the examiner found the substitute oath acceptable (R256, p. 162). 39. Meanwhile, Flier had filed a continuation application on January 17, 1973 (R257) containing 34 claims, and an amendment on March 26, 1973 containing 19 additional claims which were similar to the claims asserted in the 1966 application. The remarks accompanying this amendment included a list of prior art patents and referred the examiner to the Condensed Summary of District Court Record filed in the CIP application (see Finding No. 35, supra). 40. In a communication filed on July 9, 1973, and prior to any PTO action on the 1973 continuation application, the examiner was apprised of a lengthy list of prior art references in addition to those previously cited (R257, pp. 56-73). Copies of these references were submitted at this time and in a subsequent communication of November 9, 1973. The July communication also addressed sales of products of Swift and ADM which were the subject of the oaths filed in the CIP application and noted above. Among the prior art references cited was ADM Dutch patent application 6506477 which was specifically identified as having been published and as corresponding to the Atkinson U.S. patent application involved in the interference proceeding and Peoria litigation (R257, pp. 60-61). The Dutch application had been published on November 22, 1965, and the July communication indicates that a copy was attached thereto. The record discloses that this reference was brought to the attention of the examiner after a discovery that the application had been published (F-615). 41. During the ensuing two years, certain of the claims were revised in response to the examiner’s inquiry, and continued attempts were made by attorneys for Flier to discuss and distinguish the various prior art references previously cited by counsel, including the Oak Smith work. On two occasions, however, the examiner indicated that the manner in which these references had been submitted was not in accordance with patent office procedure (Manual of Patent Examining Procedure § 707.05(b) required an applicant to list the five most pertinent references unless a satisfactory explanation is given why additional citations are necessary). On one occasion, in a response of April 5, 1974 to the communications filed in 1973, he noted that not all the references appeared pertinent; that some references had not been submitted and some foreign patents were not translated. Accordingly, he added, the art recited had not been fully considered. 42. Prosecution of the Flier application continued until August 14, 1975, at which time the examiner issued a notice of allowance. The Flier patent (R200), here in suit, was issued February 24, 1976. It contains fifty-two claims, twenty-three of which are alleged in this action to be infringed by Far-Mar-Co. Twenty-one of these claims are process claims. The remaining two are product-by-process claims. IV. The Accused Product and Process 43. The accused product manufactured by the accused process is sold by defendant under the trade designation Ultra-Soy (R260-Defendant’s Admission 1). 44. Defendant has marketed Ultra-Soy since about April, 1970, to the present (Tr.Tr. pp. 1085, 1099; R260-Defendant’s Admission 72). 45. Defendant first learned of the process of extruding vegetable proteinaceous material in October, 1969 (R260-Defendant’s Admission 101). 46. Defendant sells Ultra-Soy both in the United States and abroad (R260-Defendant’s Admission 114). 47. Ultra-Soy is sold primarily as an ingredient for food processors to incorporate in their products as a meat extender (R260-Defendant’s admission 73; Tr.Tr. pp. 542-44). 48. Certain Ultra-Soy products produced by defendant are marketed as “meat analogs” such as bacon flavored chiplets, breakfast bits, pepperoni flavored chiplets and green bell pepper analogs (Tr.Tr. pp. 542-44; R260-Defendant’s Admission 109). 49. Ultra-Soy is also sold by defendant as a substitute for some of the meat in food formulations (Tr.Tr. pp. 542-46; R260-Defendant's Admission 49). 50. Ultra-Soy products are sold by defendant in a dry state (Tr.Tr. pp. 1147, 1149; R260-Defendant’s Admission 112). 51. Ultra-Soy is a nutritious product which can be stored without refrigeration in its dry condition (R260-Defendant’s Admissions 87 & 88). It is capable of storage in the dry state for up to a year without refrigeration and has been so promoted by defendant (R260-Defendant’s Admissions 32 & 33). 52. Ultra-Soy is capable of rehydration from the dry state in cold water and has been so promoted by defendant (R260-Defendant’s Admissions 34 & 35). 53. Ultra-Soy can be rehydrated from its dry condition without cooking, heating, autoclaving or steaming (R260-Defendant’s Admission 89). 54. Ultra-Soy has been promoted by defendant as having fibrous character (R260Defendant’s Admission 26), and as having meat-like texture (R260-Defendant’s Admission 7). 55. Defendant has promoted its Ultra-Soy by advertising that its “fibrous character can simulate, for example, the texture of meat in patties, meatballs, meatloafs, taco fillings, and pizza toppings” (R260-Defendant’s Admissions 28 & 29). 56. Defendant has advertised Ultra-Soy as exhibiting the unique texturized structure that provides excellent fact and moisture retention properties (R260-Defendant’s Admissions 15 & 66), and has promoted the product as having a high quality protein and good mouth feel (R260-Defendant’s Admissions 30 & 31). 57. Ultra-Soy is promoted by defendant as being capable of saving as much as twenty-five percent on meat costs while actually increasing nutritional value when substituted for some of the meat in the meat formulation (R260-Defendant’s Admission 50). 58. Ultra-Soy is porous, puffed and expanded (R260-Defendant's Admissions 38, 40 & 41). 59. The food product Ultra-Soy has since about 1973 been commercially promoted by defendant as made from the proteinaceous fraction derived from basic soybean processing, moisturized, subjected to pressure and high temperature and extruded (R260-Defendant’s Admission 64). 60. Defendant’s Ultra-Soy product has been commercially successful with a relatively minimal amount of advertising (R260-Defendant's Admissions 116, 117; Answer to Interrogatories 135-138). 61. At the time of the filing of this lawsuit, the two Wenger X-200 extruders with which defendant commercially produced Ultra-Soy were equipped with a total of four steam locks each, with one situated between each two-screw sections (Defendant’s Admission 131; F-1566; Tr. pp. 1117, 1121). 62. The evidence indicates that subsequent to the commencement of this case, one of the Wenger X-200 extruders was modified by defendant to operate without steamlocks. The court has, nevertheless, entered certain findings of fact as to this extruder based on evidence presented by both parties. However, the court has not entered findings relative to the use of another extruder, the Anderson 10 inch, which the court permitted defendant to refer to over the objection of plaintiff. The infringement issue, as to potential use of this extruder to practice the process in issue, has not been properly joined. Nor has there been discovery to permit a reasonable determination whether utilization of this extruder infringes the claims of the patent-in-suit. 63. Each steam lock in defendant’s Wenger X-200 extruder used in the production of Ultra-Soy restricts the flow of material through the extruder barrel (Tr.Tr. pp. 1310, 563) and constitutes a restricted orifice or restricted orifice means (Tr.Tr. pp. 715-16, 743, 751, 762-63, 776). 64. The barrel diameter of the Wenger X-200 extruders decreases at the discharge end of the barrel while the root diameter of the screw in the discharge end section increases, both of which restrict the flow of material through the barrel and constitute restricted orifice means in addition to those formed by the steam locks (Tr.Tr. pp. 1109, 1131, 1379-80, 1633-34, 1386; F-1566). 65. In each of the two extruders upon which defendant commercially produces its Ultra-Soy product, there is a space between the terminal end of the screw and the discharge orifice closest to the terminal end of the screw (R260-Defendant’s Admission 128). This space is enlarged relative to the restricted orifice means defined in Finding No. 64 (F-1566). 66. The extruder die located at the discharge end of the Wenger X-200 extruder barrel contains restricted orifices and restricts the flow of material through the barrel (Tr.Tr. pp. 1131-32, 1385-86, 1634; R260-Defendant’s Admission 67). 67. The extruder die of the Wenger X-200 extruders constitutes a restricted orifice means (Tr.Tr. pp. 718, 737, 744, 809-10; R260-Defendant’s Admission 67). 68. An elongated zone of confinement is formed between the last flow restricting steam lock and the extrusion die of the Wenger X-200 extruder utilized by defendant. A second zone of confinement is formed on the inlet side of the last steam lock (Tr.Tr. pp. 751-52, 763, 774, 790-91, 809-10; F-1566). The Wenger X-200 ex-truder screw extends into the zones of confinement (Tr.Tr. pp. 1120-21, 811; F-1566). Additionally, the extruder screw of the Wenger X-200 extruders used by defendant terminates a distance from the extrusion die, creating an elongated zone of confinement between the extruder die and the flow restricting discharge section of the screw (Tr.Tr. pp. 1131, 589, 753; F-1566). A second elongated zone of confinement is formed on the inlet side of the flow restricting discharge section of the screw (Tr.Tr. p. 753; F-1566); 69. The material passing around the steam locks in the Wenger X-200 extruder utilized by defendant is subjected to reduced pressure at the steam lock (Tr.Tr. p. 565) and therefore expands in stages to some degree as it passes through the ex-truder (Tr.Tr. p. 742). The pressure is maintained at an elevated pressure and temperature after passage around the steam lock (Tr.Tr. p. 565, 1121, 752-53). 70. Defendant manufactures Ultra-Soy by process steps which utilize a vegetable soybean material as a starting material (Tr.Tr. pp. 709, 1108). Soybean materials carry common designations in the trade which merely differentiate between the particle size of the material, with soy flour having a smaller particle size than soy meal (Tr.Tr. p. 555). For purposes of the Flier patent, soy flour is the same as soy meal (Tr.Tr. pp. 729, 741, 760, 768). In its process for manufacture of Ultra-Soy using the Wenger X-200 extruders, defendant utilizes soybean material having a soy flour particle size (Tr.Tr. p. 1108; R260-Defendant’s Admissions 24, 67). 71. The oil content of the soybean material utilized by defendant in its production of Ultra-Soy is reduced to a minimal amount by solvent extraction, less than one percent (Tr.Tr. p. 1117) or preferably approximately 0.5% (Tr.Tr. p. 730; R44-48). 72. The soybean material utilized by defendant, having a protein content ranging from about 51.6% to 55.6%, and typically 54% (R260-Defendant’s Admissions 67, 80; Tr.Tr. p. 1117), has a protein content at least that of solvent-extracted soybean meal, or at least about fifty percent (Tr.Tr. pp. 695, 711, 748). 73. Sufficient water is added to the soybean material by defendant to allow the material to pass through an extruder in the production of Ultra-Soy (Tr.Tr. pp. 696, 1118, 1238; R260-Defendant’s Admissions 67, 81). In the process utilizing a Wenger X-200 extruder defendant utilizes soybean material having an original moisture level of typically 4% to 6% (Tr.Tr. p. 1117). During the production of Ultra-Soy, the soy material moisture is increased to produce a mix having a total moisture content in the range of about 23% to about 30% (R260-Defendant’s Admissions 67, 81), and typically approximately 28% (Tr.Tr. pp. 1108, 1118), which may vary by a plus or minus one percent depending upon the particular die used (Tr.Tr. pp. 1243-44). During the production of Ultra-Soy, defendant does not specifically measure the added or total moisture content, but adjusts the added moisture in response to fluctuations in end product characteristics (Tr.Tr. pp. 1245-1247). Defendant adds to the soy material moisture content at least about 25% (Tr.Tr. pp. 783-84, 1117-18, 2343-44). 74. Defendant, when manufacturing Ultra-Soy, uses moistened soy flour at its natural pH, generally in the range of 5 to 8, and in the range of 6.6 to 8 (Tr.Tr. p. 595; R260-Defendant’s Admission 84). The Ultra-Soy product typically has a pH of 6.5 (R260-Defendant’s Admission 69; R12). 75. During the commercial production of Ultra-Soy by defendant, the soy material mix is fed into an extruder containing a screw which mechanically works the soy material mix, subjecting the mix to increased temperature and pressure (Tr.Tr. p. 1134; R260-Defendant’s Admission 67). 76. While confined within defendant’s extruder, the mix is heated to a temperature of 320-370°F. (R260-Defendant’s Admission 67), which is substantially in excess of 212°F. (Tr.Tr. pp. 761-63). At or near the extrusion die of the Wenger X-200 extruders the pressure increases to a range of 120 to 175 p.s.i.g. (Tr.Tr. 1123; R260-Defendant’s Admission 67). 77. It is impossible to determine precisely what occurs within the extruder barrel during the extrusion of soybean material (Tr.Tr. pp. 636-37, 643, 1746). It is possible to open the barrel of the Wenger X-200 extruder, and a variety of theories have developed as to what occurs within the extruder based upon the remains after the pressure and temperature have been decreased and the barrel opened (Tr.Tr. pp. 1250, 1259, 1690-91). Regardless, the soybean material undergoes a pronounced, dramatic physical change between the introduction into and exit from defendant’s Wenger X-200 extruder (Tr.Tr. p. 1279). Both plaintiff and defendant agree that the soybean material becomes a plasticized or molten, flowing mass (Tr.Tr. pp. 621, 1141, 1253). The mass is forced through openings in the extrusion die (Tr.Tr. pp. 1132-33), at which point the pressure is suddenly released (F-1568), causing the material to expand (Tr.Tr. pp. 1132-33, 1389), and the extruded end product is no longer in the same physical state after exiting the die (Tr.Tr. pp. 1263-64). 78. In defendant’s process for manufacturing Ultra-Soy, the soybean material is physically changed from a flour form to a textured soy protein product (R260-Defendant’s Admission 86). 79. In defendant’s process for manufacturing Ultra-Soy, the pressure on the soybean material, in excess of ambient pressure, is suddenly released as it exists from the extruder die, the soybean material is puffed or expanded after it exits from the extruder die, and there is evaporation of moisture from the soybean material as it exits from the extruder die (Tr.Tr. p. 1389; F-1568; R260-Defendant’s Admissions 67, 85). 80. In defendant’s process for manufacturing Ultra-Soy, soybean material is confined within an extruder while being subjected to sufficient mechanical working at elevated temperatures and pressures for a sufficient length of time that upon release of the pressure it is capable of becoming a fibrous structure (Tr.Tr. pp. 702-03, 716-17, 725, 736, 777, 786, 1132-33, 1263-64). 81. It is impossible to determine at precisely what point in defendant’s process or in what amount fibers are formed, but even the theory presently held by defendant’s technical expert agrees some percentage of fibers are formed in the extruder die orifice and outside the extruder during expansion (Tr.Tr. pp. 1730, 1737-41). 82. The Ultra-Soy product produced by defendant is severed into chunks after discharge from the extruder and then dried (Tr.Tr. pp. 561, 1131, 1146-47). V. Infringement 83. Plaintiff’s expert, Mr. Donald Zarley, presented a detailed analysis of each of the asserted claims and explained why, in his opinion, they were infringed by the accused Far-Mar-Co process and product. The court finds Mr. Zarley’s conclusions, based upon the evidence, both credible and persuasive. 84. The court has considered defendant’s arguments concerning file wrapper estoppel and, in particular, whether plaintiff is estopped from asserting infringement of certain claims calling for control or maintenance of the pH value within a specific range. In the first place, the court considers defendant’s strict observance of the pH factor a literal infringement of this claim element. In any event, a claim construction that one can maintain or control the pH value without the overt act of adding a base or acid was never surrendered by Flier, during prosecution of the patent, to distinguish his process over the prior art. See R256, pp. 22-28, 36-39, 44-65. Though he was to later emphasize that the pH was not the point of invention, Flier’s early efforts to distinguish the prior art cited by the examiner emphasized the effect of the pH value on expansion and texturization during extrusion processing. While, as the specification illustrates, the pH can be altered or adjusted to enhance fiberization, and certain claims require this step, the court does not interpret the claims calling for controlling or maintaining the pH value to require the addition of a substance to the starting material. 85. As to the claim language regarding formation of the “fibrous structure,” the court does not interpret the claims of the patent-in-suit as positing a particular situs, inside or outside the extruder of fiber formation; they require only that the starting material assume a fibrous condition at least by the time it emerges from the final die (Tr.Tr. 827). As Mr. Zarley concluded: “the important phenomenon is creating the fibrous product, and it is not critical to the invention as to where that fibrous phenomenon takes place.” (Tr.Tr. p. 873). Interpreting the claims in light of the specification and the file wrapper history, the “fibrous structure” referenced in the claims refers to an end product which is both fibrous and expanded, and does not preclude the possibility of some texturization occurring inside the extruder. 86. The process by which defendant manufactures its Ultra-Soy product falls within the language stating temperatures “in excess of 212°F.” set forth in claims 1, 2, and 10 (Tr.Tr. pp. 714, 750); stating temperatures “at least about 212°F.” set forth in claims 8 and 9 (Tr.Tr. p. 735); and temperatures substantially above or in excess of 212°F. set forth in claims 11-20, 22, 23, 25, 29-31 (Tr.Tr. pp. 703, 724, 761-62, 774, 786). See also R261. 87. The process by which defendant manufactures its Ultra-Soy product falls within the language set forth in the claims in suit stating an elevated or increased pressure (Tr.Tr. pp. 702, 716, 724-25, 735-36, 750, 762, 775, 785). See also R261. 88. The process by which defendant manufactures its Ultra-Soy product falls within the language set forth in claims 1, 2, 8 and 9, stating a moisture content of at least about 20% by weight (Tr.Tr. pp. 713, 733); claims 10, 11, 12 and 13, stating a moisture content at least about 25% by weight (Tr.Tr. pp. 748-49, 760-61); and claims 14, 29, 30 and 31, stating a moisture content in the range between about 20% and about 40% by weight (Tr.Tr. pp. 723, 773). See also R261. 89. The process by which defendant manufactures its Ultra-Soy product falls within the language set forth in claims 18, 22, 23 and 25, stating adding sufficient water to permit the resulting mixture to be passed through an extruder (Tr.Tr. p. 696); claims 15, 16 and 17, stating an added moisture content at least 25% by weight (Tr.Tr. pp. • 783-84); claim 20, stating an added moisture content of approximately 25% by weight (Tr.Tr. pp. 802-03); and claim 19, stating added moisture in the range of 20% to 30% (Tr.Tr. pp. 801-02). See also R261. 90. The process by which defendant manufactures its Ultra-Soy product falls within the language set forth in claims 1 and 2, stating controlling the pH value to slightly below or slightly above the neutral point of the material (Tr.Tr. p. 713); claims 8, 9 and 22, stating controlling the pH to a value between 5 and 8 (Tr.Tr. pp. 733-34, 804); and claim 23, stating a pH in the range of 6.6 to 8 (Tr.Tr. pp. 804-05). See also R261. 91. The process by which defendant manufactures its Ultra-Soy product falls within the language set forth in claim 2, stating a fat content of approximately 0.5% (Tr.Tr. p. 730); and as set forth in the remainder of the process claims in suit, stating no more than a minor amount of fat or solvent extracted soybean material (Tr.Tr. pp. 694, 709-10, 722, 733, 747, 758-59, 771-72, 782). See also R261. 92. The process by which defendant manufactures its Ultra-Soy product falls within the language set forth in claims 1, 2, 10-20, 22, 23, and 25, stating a protein content at least about that of solvent-extracted soybean meal (Tr.Tr. pp. 695, 711, 747-48, 760, 772-73, 783); and set forth in claims 8 and 9, stating a protein content at least about 50% (Tr.Tr. p. 732). See also R261. 93. The process by which defendant manufactures its Ultra-Soy product falls within the language set forth in claims 1, 2, and 9, stating passing the material through a first and second restricted orifice means (Tr.Tr. pp. 716-18, 743-44); claims 10, 11, 12 and 13, stating an elongated zone of confinement between the first and second restricted orifice means (Tr.Tr. pp. 750-54, 763-65); claims 14, 16, 17, 30 and 31, stating a pair of zones of confinement separated by a restricted orifice (Tr.Tr. 774-79, 790-92, 808-10). See also R261. 94. The process by which defendant manufactures its Ultra-Soy product falls within the language set forth in the claims, stating confining the mixture within an ex-truder and increasing the temperature and pressure while subjecting it to mechanical working until the mixture, upon release of the pressure, is capable or has the capability of becoming a fibrous structure (Tr.Tr. pp. 702-03, 717, 725, 736, 777, 786). See also R261 corroborating a conception or reduction to practice prior to Flier’s successful work. Defendant has neither bridged this evidentiary gap, nor persuaded this court that the experimental runs relied upon involved the practice of the patented process herein issued. 95. The process by which defendant manufactures its Ultra-Soy product falls within the language set forth in claims 10 and 11, stating advancing the material through the zone of confinement for a period of time sufficient to cause the material to have a fibrous nature as it is finally discharged (Tr.Tr. pp. 753, 764). See also R261. 96. The process by which defendant manufactures its Ultra-Soy product falls within the language of claims 1, 2, 8-20, 22, 23, 25 and 29-31 of the Flier patent (Tr.Tr. pp. 706, 720, 727-28, 730, 738-39, 744, 756, 766, 768-69, 779, 788-89, 792-94, 802-05, 807, 810-11). 97. The product Ultra-Soy falls within the language of claims 32 and 33 of the Flier patent (Tr.Tr. pp. 813-16). 98. Claims 1, 2, 8-20, 22, 23, 25 and 29-33 of the Flier patent are infringed by defendant’s manufacture, use and sale of its Ultra-Soy product. VI. Validity A. Alleged Prior Invention and Use 99. Flier was the first inventor of the process which is the subject of this patent and the product produced by this process. The Parties to the Interference 100. With regard to the prior work of William Atkinson, no convincing evidence has been produced by defendant to cause the accuracy of the Board of Patent Interferences opinion, issued August 13, 1971, to be questioned. In that opinion, the Board reviewed the work of Atkinson, including the experimental runs 2669 and 2671 relied upon by defendant in this case, and found, among other deficiencies, a lack of evidence corroborating a conception or reduction to practice prior to Flier’s successful work. Defendant has neither bridged this evidentiary gap, nor persuaded the court that the experimental runs relied upon involved the practice of the patented process here in issue. 101. Additional evidence not considered or relied upon by the Board of Patent Interferences is illuminating, and further buttresses the conclusion reached by the Board. This evidence includes: (a) a patent proposal submitted by Mr. Atkinson on December 23, 1963, indicating that a hydratable, meat-like product had been made on December 3, 1963 (R202Q-Flier Rebuttal Exhibit E); (b) Atkinson notebook #28, reporting on pages 106-112 that on December 3, 1963, he had extruded Ardex 700 at the Polytech Company in Minneapolis on a plastics extruder commenting, with regard to the resultant product, “This material didn’t disintegrate to the usual mush” (R202Q-Flier Rebuttal Exhibit Dr15; F-766, p. 108); (c) Atkinson notebook # 28 also reports on an experiment conducted December 10, 1963, involving the running of Ardex 700 on a “plastics” extruder. Mr. Atkinson’s contemporaneous comments on the resultant product after hydration were, “The extrudate absorbed all of the water and possessed the appearance of tender cubes of beef. Fibrous structure looked exactly like cubes of meat. Texture and mouth disappearance simulate real meat exactly. Texture excellent even after severe autoclaving condition” (Emphasis in original) (R202Q-Flier Rebuttal Exhibit D-22; F-766, p. 117). No such comments appear in the Atkinson notebooks prior to this date (See F-701, F-766); (d) ADM Research Quarterly Report for the period October-December, 1963, referred to by the Board on a related issue, states at page 16: Beef flavored extrusion materials prepared from Ardex 700 and Ardex 550 were processed through the ADM Prodex plastics extruder. The machine subjected the protein material to high shear, compression, and temperature. The resultant extrudate possessed fibrous textures. The proportions were unique for such materials as Ardex. 700 and Ardex 550. The extrudates hydrated and bound 3.5 parts of water. The hydrated materials maintained their integrity during boiling and autoclaving under such severe conditions as 120 minutes at 120 P.S.I. The hydrated extrudates possessed a fibrous texture which resembled boiled beef. The chewiness of the material and mouth disappearance simulated high quality beef. These materials are truly unique, interesting, and worthy of exploitation. A patent disclosure is being prepared. (R202U-Wilding Rebuttal Exhibit C.) 102. Mr. Atkinson, during cross-examination in January, 1982, revealingly stated with respect to the run made at the Poly-tech Company on December 3, 1963: “... [T]hat was a real moment in my life when I autoclaved those under extreme temperature conditions and got the meat-like material that, in my opinion, completely duplicated beef” (F-803, p. 88a). 103. There is testimony in the record regarding alleged samples of Mr. Atkinson’s runs 2669 and 2671 conducted in February, 1962. The sample from run 2669 first surfaced in 1971 following the decision by the Board of Patent Interferences (F-328, pp. 308-15). The sample from run 2671 first surfaced, insofar as the record indicates, in January, 1982 (F-756, pp. 12-24). Mr. Atkinson’s testimony indicates that he regained possession of these samples in 1977 when a filing cabinet at his former employer was being cleaned out and has since kept them in his basement (F-756, pp. 12-13; F-793, pp. 46-47). These samples were the subject of considerable dispute at trial. The court has closely reviewed the deposition testimony to determine what weight, if any, should be accorded them. Their origination and history is, to say the very least, unclear (F-328, pp. 308-15; F-756, pp. 12-24; F-793, pp. 46-62; Atkinson Dep. July 13, 1982). This history, coupled with the fact that apparently certain reruns of experiments 2669 and 2671 were made by Atkinson in 1971 and Atkinson’s own testimony that he probably could not tell the rerun extrudate from the extrudate of the original runs (Atkinson Dep. July 13, 1982, pp. 21, 30-31) compels the court to disregard these samples and the testimony concerning them. 104. Mr. Atkinson, for some time prior to conducting the February, 1962 experiments 2669 and 2671 involving 70% soy protein concentrate, had been running ex-truder experiments which utilized as a starting material isolated soy protein. The resultant extrudate was not expanded and, as described by him, chewed like “little rubber erasers” (R202M, p. 382; F-328, pp. 288-90; F-793, pp. 73-74). It clearly did not possess the meat-like properties of the extrudate materials produced by the process which is the subject of this suit, and the contrary has not been asserted by the defendant in this litigation. 105. Mr. Atkinson, between the dates of his runs 2669 and 2671 and December, 1963, ran approximately 280 separate experiments, of which approximately 180 were extrusion experiments. He never attempted during this period of some nineteen months to duplicate either of runs 2669 or 2671 nor, for that matter, to run any starting material other than isolate through the bench-top extruder, the extruder he used in runs 2669 and 2671 (F-803, pp. 9a-88a). The court finds it somewhat difficult to believe that if runs 2669 and 2671 were the successes which they are now portrayed to be he would not have repeated or attempted to duplicate them during this time period. Apparently, at least as of July, 1962, he considered the qualities of the soy isolate extruded product (the little rubber erasers) superior to the product obtained from prior extrusion experiments utilizing soy concentrate (F-708, p. 509-545). 106. Nine runs were made by ADM personnel during this nineteen-month period on what has been referred to as the pilot plant extruder using non-isolate soy materials as a starting material. The lab sheets reporting these runs reveal no comments whatever as to the existence of texture, chewiness, meat-like properties or the like in. the resultant extrudate. Only two of these runs, moreover, were made prior to the conception and reduction to practice of the invention by Flier in early 1963 (F-830, pp. 9a-88a). 107. Neither these runs nor those performed by Mr. Atkinson in February, 1962, constituted a conception or reduction to practice of the invention here in suit. The court concurs with the opinion of the Board of Patent Interferences rendered in August, 1971, that Flier vis a vis Atkinson was the first inventor of the subject matter of the patent in suit. 108. Finally, it was admitted by counsel for defendant at trial that Mr. Atkinson, who was expected to testify live, made alterations in ink in his 1962 notebook on the pages reporting experiments 2669 and 2671 the day before he was to testify (Tr. Conf. in Chambers, August 12, 1982, p. 6, lines 18-25, p. 7, lines 1-17). Counsel for defendant thereupon decided not to call Mr. Atkinson but to rely instead upon the numerous volumes of his deposition testimony taken over a period of approximately thirteen years. While Mr. Atkinson’s activities during the course of the trial are not necessarily representative of his prior activities with respect to his laboratory journals, they furnish further reason to question the accuracy of his deposition testimony, particularly as elicited in 1982, some twenty years after the events in question. Moreover, the court notes an enhanced level of descriptiveness in Atkinson’s recent testimony as to process and product characteristics of extrusion runs in 1962. The court has considered this in the light of the passage of a considerable period of time between testimony first elicited during the interference proceeding and 1982, and the intervening preparation for the Peoria trial and this litigation (F-797; F-793, pp. 45-46). 109. The record does show, however, that Atkinson, a man of considerable skill in the art, worked for a period of nearly three years prior to arriving in December, 1963, at the process which was the subject of the interference count and which forms the basis for the present lawsuit (R202C-R202H). 110. The Board of Patent Interferences dismissed the case for Morris Wilding on the ground that he had failed to prove even a conception date prior to the Flier reduction to practice date (R202A). There is nothing in the record of this case that would bring that finding into question. Oak Smith-Wenger 111. Defendant offers, for purposes of establishing both prior invention of the Flier process under 35 U.S.C. § 102(g) and prior use of the process under 35 U.S.C. § 102(a), the collaborative effort of Oak Smith, of Wenger Manufacturing, and the United States Department of Agriculture on December 20, 1961. On that date, following an extrusion run on “full-fat” soy, Mr. Smith, at the request of the Department of Agriculture, conducted a run using defatted soybean material supplied by the U.S.D.A. (F — 1; F-346). 112. The nature of the product resulting from this experiment is unclear. Contemporaneous run sheets failed to describe the product’s physical structure (F-3; F-4), and correspondence of Oak Smith, as well as U.S.D.A. reports following the run, revealed no recognition of any significant results (F-220; F-350; F-351). In fact, the correspondence and reports clearly indicate that the focus of attention was on the immediately preceding full-fat soy run. 113. While there is a considerable amount of deposition testimony taken during the 1970s from Mr. Smith, and in 1979 from Mr. Wenger (who admitted it would be advantageous to his company if the patent in suit were declared invalid) (F-471, p. 40), that the product exhibited qualities of the product produced by the Flier process, there is credible testimony from a disinterested third party, Gus Mustakas, directly to the contrary (F-346, p. 24, lines 18-22, p. 37, lines 20-23, p. 38, lines 1-23, p. 39, lines 1-11). 114. Mr. Mustakas, a Department of Agriculture employee who was present at the December, 1961, run conducted by Oak Smith, testified, “Nor were we alert to any physical changes” (F-346, p. 16, lines 3-12). The court notes that the Department of Agriculture had initially resisted the deposing of Mr. Mustakas during the Peoria litigation, although he had been scheduled to appear at the aborted 1972 trial. His testimony sheds light on the alleged prior use and reduction to practice of Oak Smith. 115. A comparison of the depositions of Oak Smith in 1970 (F-l), 1971-72 (F-179, F-196, F-212) and 1979 (F-363, F-389) indicates a definite propensity to testify to further, at times crucial, details in later depositions, contrary to normal memory patterns. This may be illustrated by a comparison of Smith’s testimony in 1970, where we are made aware of some product adhesion and expansion (F-l, pp. 44, 52), and his testimony in 1979, where he flatly stated “[i]t had a meat-like texture” (F-363, p. 173). More credence is therefore given to Mr. Smith’s earliest deposition, from which the court concludes that no recognition was made of any special results. 116. Attempts by defendant to fill in the missing pieces regarding the product’s characteristics have not persuaded the court that Smith performed the patented process and obtained a textured, meat-like product in December of 1961. In this regard, the experimental runs conducted by Dr. Judson Harper in 1981 at defendant’s facility in Hutchinson, Kansas, and his testimony relative to the inherent fibrous structure of an expanded continuous rope extrudate, are unavailing. The court was unable to uncover a single instance in the testimony or exhibits where the extrudate from the December, 1961 run was described as a continuous rope. This is not surprising since we know that during that run a knife assembly was attached to the ex-truder to cut the material as it emerged from the die into 1 lk inch segments (F-363, p. 119; F-3). 117. Moreover, the record discloses certain information about the defatted run which does not support the contention that Mr. Smith practiced the Flier process and obtained a textured product. From chemical analysis later performed by the U.S. D.A. on product samples, it appears that the defatted soy run was made with an unusually high fat content present (F-353; F-346, pp. 44, 78-79). Regardless of whether the fat was in the starting material, or whether it was present by virtue of the preceding run on full-fat soy, its presence would raise considerable doubt as to whether a textured product was obtained under the circumstances (Tr.Tr. pp. 207, 1788-89). 118. It is clear, in any event, that regardless of the characteristics of the product obtained by Smith in 1961, nothing was done with it, no appreciation of any unusual result was shown by any of the parties present, it was not attempted again until March, 1964 (F-212, p. 379), it was not publicized or made the subject of a patent application even though the “full-fat” extrusion run made on the same day was later patented (F-180, F-396) and publicized (F-360; F-346, pp. 69-71). Wenger routinely patented its extrusion developments (F-395 — F-401). In contrast, it appears that this isolated run with defatted material was resurrected only when the importance of Flier’s invention became known in the industry. Promotion of Wenger extruder’s for this process was not instituted until much later. There was no benefit to the public from Smith’s run. Even assuming, therefore, that the Smith product exhibited the characteristics of one produced by the Flier process, the experiment was abandoned, suppressed or concealed. 119. As to whether the December, 1961, run constitutes a prior use under 35 U.S.C. § 102(a), the above findings are also relevant. While abandonment will not render a successful prior use nonanticipatory, it is indicative of whether there was in fact a successful or complete prior used. Moreover, the position of the defendant that Oak Smith’s work in December, 1961, was in “public use” is inconsistent with the understanding of the United States Department of Agriculture representative to this cooperative effort (F-346, pp. 45-47), inconsistent with contemperaneous correspondence (F-16), and inconsistent with the sworn oath e