Full opinion text
OPINION IRVING BEN COOPER, District Judge. Plaintiff, an international company engaged in the business of beauty and health products and services, brings this action for a judgment pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, declaring that two patents issued to defendant, U.S. Patent No. 4,304,244 (“ ‘244 patent”) and U.S. Patent No. 4,373,540 (“ ‘540 patent”) for a hair straightening and curling process are invalid, unenforceable and not infringed. Defendant, a company based in Savannah, Georgia manufactures cosmetics for the black ethnic market, and counterclaims for injunctive relief and damages, alleging that two hair straightening products made by plaintiff sold under the trademarks “FABULAXER” and “CREME OF NATURE” infringe defendant’s patents. The case was tried to the Court on January 3 to January 13, 1984 and was bifurcated (the issue of liability to be determined first); damages reserved pending our decision thereon. At the conclusion of the trial decision was reserved. Post trial memoranda and proposed findings of fact and conclusions of law were filed on March 7 and 8, 1984; replies were filed on April 2 and 3, 1984. FACTS A prerequisite to a determination of the issues presented by this conflict requires at least a brief analysis of the structure of human hair and the chemistry of formulas created to treat it. A. The Structure of Human Hair The molecules of human hair are composed of keratin, a natural fibrous protein containing 18 amino acids which are organic compounds that compose protein molecules. (Ex. 35) A vertical strand of the keratin molecule is called a polypeptide; the polypeptides are cross-linked by hydrogen bonds on one plane and by two sulpher atoms on another, the latter creating very tough disulphide bonds called cystine. (Tr. 69-70; Ex. 381, Paper 6, Du Yung Hsiung article at 1156; Ex. W). The strength of the cystine is responsible for maintaining the natural configuration of a person’s hair. It follows that in order to permanently change the hair’s characteristics, the cystine must be broken down. The application of highly alkaline substances accomplishes this goal, making the hair malleable. At that point, it may be reset into a new configuration; the broken disulphide bonds will reform either by leaving single sulfer bonds with excess unattached sulfer atoms in the hair, or the excess sulfer atoms will reconnect with the bonded sulfer atoms in new places, forming new disulphide bonds in the new hair shape. (Ex. 2461, Hendrix, at 30). In this manner, one with naturally curly hair is able to get straight hair and one with naturally straight hair obtains a permanent wave. The challenge centers upon the substances which most effectively bring about the desired result. B. Chemistry of Formulas that Treat Hair In the early 1970’s several methods were employed to straighten curly hair. One approach involved the application of pressing oil and a hot comb to the hair; this resulted in steaming and stretching hair. (Tr. 57-58; 307). Since this formula lacked alkalinity, it broke only the hydrogen bonds (Ex. 381, Paper 6, Du Yung Hsiung article at 1156), not the cystine, causing only. a temporary alteration along with some damage to the hair. (Tr. 58). A second formula called “Vigorol” contained ammonium thioglycolate or sulfite as its key ingredient. Its main drawback was that a few days after application the hair often reverted to its original curly state. (Tr. 307-08). The most effective hair straightening formula used at that time was sodium hydroxide, commonly referred to as “lye.” Sodium hydroxide has a very high “pH”— meaning the measurement of the acidity or alkalinity of a substance on a scale from one to fourteen in which one is the most acidic and fourteen is the most highly alkaline. (Tr. 63). The pH of sodium hydroxide approaches fourteen (Tr. 133), and is very successful in breaking down the tough disulphide bonds, changing the configuration of the fibers when stress (by combing) is applied to the hair. The two main competitors in the sodium hydroxide hair straightening market in the early 1970’s were plaintiff and Johnson Products Company. Cognizant of the problem of scalp irritation that resulted from applying sodium hydroxide to the head and desirous of competing in the hair straightening market, Mr. Mario de la Guardia, president of the defendant corporation, envisioned introducing a straightening product with a neutral pH. To that end, he contacted the Southern Research Institute (“SRI”) in Birmingham, Alabama, a non-profit research organization doing research and development for defendant over 20 years. (Tr. 1147-48). The three year research effort at SRI to develop a non-alkali sulfite relaxer similar to compounds used for hair waxing proved unsuccessful. (Tr. 309-11; 1039-45). In 1975, the Federal Trade Commission (“FTC”) issued an order that altered the balance of competition in the hair straightening field. The order required that all hair relaxers containing either sodium hydroxide or potassium hydroxide be labeled as containing lye. (Stipulated Fact 23; Tr. 312). As should have been expected, consumer reaction to products with that label was negative in the extreme. (Stipulated Fact 24). Intent upon obtaining a competitive advantage in the market of hair straighteners, Mr. de la Guardia sought an effective alkaline formula that did not contain sodium or potassium hydroxide. (Stipulated Fact 25). The president of the defendant company was successful in his endeavor. After a weekend of experimentation in October 1976 (Tr. 453), he discovered that a formula combining a guanidine salt, an extremely alkaline salt, such as guanidine carbonate and a water soluble hydroxide such as calcium hydroxide would create the desired objective. Irritation, efficacy and stability tests using Mr. de la Guardia’s formula were conducted at SRI and elsewhere, and attained positive results. (Tr. 328-31). On June 9, 1977, defendant filed its first patent application for the product; in May 1978, the hair straightener “Dark and Lovely” was introduced on the market. (Stipulated Fact 3; Tr. 330). The label affixed to the box of the product read “contains no lye.” On December 9, 1981, the ‘244 patent was issued to defendant. (Amended Complaint U 4). “Dark and Lovely” achieved a high sales rate (Ex. K) which negatively impacted consumer sales of plaintiffs products containing sodium hydroxide. Consequently, before any patent had issued on defendant’s product, plaintiff and several other competitors in the market began selling hair straighteners with formulas similar to that produced by defendant. (Ex. 246II, Goldberg, at 95-97; Ex. 246II, Bottner, at 18-19; Ex. 246II, Roppolo, at 10-11) Revlon’s competitive products are called “FABU-LAXER” and “CREME OF NATURE.” Johnson Products’ relaxer is named “Gentle Treatment,” and one put out by Posner is called “Perfect Performance.” (Ex. 246II, Roppolo, at 10). C. Defendant’s Patents Mr. de la Guardia created his formula by combining guanidine carbonate, a commercially available salt, with calcium hydroxide in water. He discovered that under proper conditions, the two chemicals break apart and reform into guanidine hydroxide and calcium carbonate. As a salt, calcium carbonate precipitates out of the solution leaving guanidine hydroxide in solution. As a practical matter, however, the reaction between guanidine carbonate and calcium hydroxide is an equilibrium reaction, i.e., the two chemicals break apart and form guanidine hydroxide and calcium carbonate which (the newly formed guanidine hydroxide and calcium carbonate) in turn quickly break apart and reform into guanidine carbonate and calcium hydroxide. Therefore, the reaction must be driven toward completion; the right conditions must be employed to ensure as much precipitation of the calcium carbonate as possible, leaving more guanidine hydroxide. (Ex. 234, col. 3, lines 54-59; Ex. 235, col. 3, lines 56 — 61) According to defendant, proper conditions include: (1) reaction temperatures between 35°F and 140°F (Ex. 234, col. 4, line 33; Ex. 235, col. 4, line 35); (2) use of the solution within 48 hours (Ex. 234, col. 4, line 38; Ex. 235, col. 4, line 39); (3) the presence of hydroxide in at least a stoichiometric amount, even up to two to five times the stoichiometric amount (Ex. 234, col. 4, lines 41-45; Ex. 235, col. 4, lines 42-46); (4) the reaction product should contain one to fifty percent guanidine hydroxide by weight, most preferably between four to seven percent by weight (Ex. 234, col. 5, lines 36-49; Ex. 235, col. 5, lines 39 — 52); (5) the guanidine salt should contain 1.2 to 40 percent by weight, preferably 5 to 8 percent by weight (Ex. 234, col. 5, lines 52-64; Ex. 235, col. 5, lines 55-67); (6) a pH value in the reaction product above 11.8, preferably about 12.5 to 13.5 (Ex. 234, col. 6, lines 42-45; Ex. 235, col. 6, lines 45-48); (7) a treatment time of 5 to 45 minutes, preferably 20 to 30 minutes (Ex. 234, col. 6, lines 46-58; Ex. 235, col. 6, lines 49-61); and (8) use of a neutralizing agent (such as a shampoo) after treatment (Ex. 234, col. 6, lines 64-66; Ex. 235, col. 6, lines 67-68). Conventional additives may be added to defendant’s formula (Ex. 234, col. 4, line 63; Ex. 235, col. 4, line 65), as well as thiourea as an accelerator where there are lower levels of guanidine hydroxide in the reaction product (Ex. 234, col. 6, lines 26-36; Ex. 235, col. 6, lines 29-39). Additionally, according to defendant’s patent specifications, lithium, barium or strontium hydroxide may be used as a starting ingredient instead of calcium hydroxide; other guanidine salts, particularly guanidine sulfate, may be used in place of guanidine carbonate. (Ex. 234, col. 3, lines 46-49 and col. 4, lines 12-14; Ex. 235, col. 3, lines 48-51 and col. 4, lines 14-16) Defendant’s product is sold in the form of a kit which includes two containers. The relaxer container stores calcium hydroxide in a creme base and the activator container holds guanidine carbonate in liquid form. (Tr. 606, Ex. J) The two are mixed, the solution then is applied to the hair. After 5 to 45 minutes, depending upon the coarseness of the user’s hair and the amount of straightening desired, the solution is removed, and the hair is washed with water, followed by a neutralizing shampoo, then treated with a protein conditioner to make the hair more manageable and return the oils to it. (Tr. 292) Combing completes the effort. (Ex. 234, col. 2, lines 57-68 and col. 3, lines 1-2 and 18-25; Ex. 235, col. 2, lines 59-68 and col. 3, lines 1-4 and 19-27) Defendant’s ’244 patent (Ex. 234), issued on December 9, 1981, contains 23 claims. Claim 1 is representative of the process claims: A method of treating hair to cause the hair to maintain a desired configuration, said method comprising contacting the hair while in said desired configuration with an aqueous composition comprising, as the principal active ingredient, guanidine hydroxide, wherein said guanidine hydroxide is formed by reacting calcium hydroxide and guanidine carbonate, and thereafter removing said composition from the hair. Ex. 234, col. 19, lines 9-16. Claim 7 is representative of the composition claims: A composition for treating hair when applied thereto, comprising a water-soluble inorganic hydroxide ingredient and a water-soluble guanidine salt ingredient, said ingredients being selected such that reaction products thereof are guanidine hydroxide and a substantially water-insoluble inorganic salt formed by the cation of said inorganic hydroxide ingredient and the anion of said guanidine salt ingredient whereby the reaction producing said guanidine hydroxide will be driven towards completion, and said inorganic hydroxide ingredient being present in at least a stoichiometric amount relative to said guanidine salt ingredient. Ex. 234, col. 20, lines 1-12. None of the claims of the ’244 patent recite time or temperature parameters; only claim 6 sets forth an operating range of concentration of 1 to 50 percent guanidine hydroxide. The remaining claims constitute process or article claims reciting the product guanidine hydroxide and/or the ingredients that may be used to bring about the reaction product. The second patent, ’540, was issued to Mr. de la Guardia on February 15, 1983. (Ex. 235) It recites a hair treating composition to relax hair, and, according to Mr. de la Guardia, broadly covers guanidine hydroxide regardless of how it is made. (Tr. 469) The ’540 patent contains two claims. Claim one recites: A composition for treating hair comprising an effective amount of guanidine hydroxide as the active ingredient, the pH of said composition being at least 11.8, and said composition being applied to said hair and being removed therefrom after a predetermined amount of time. (Ex. 235, col. 20, lines 4-10) Claim two further specifies that the concentration of guanidine hydroxide ranges from 2 to 20 percent by weight. (Ex. 235, col. 20, lines 11-13) ISSUES (1) Whether defendant’s ’244 and ’540 patents are invalid under 35 U.S.C. § 102 (anticipation), 35 U.S.C. § 103 (obviousness) or 35 U.S.C. § 112 (indefiniteness)? (2) Whether defendant fraudulently procured the patents, rendering them invalid? (3) Whether defendant misused the ’244 patent? (4) Whether plaintiff infringed any of defendant’s claims? (5) Whether plaintiff and/or defendant is entitled to attorneys fees and expenses? LAW Before addressing the substantive legal issues in this case, we must decide several evidentiary matters. A. Admissibility of the “Eiermann Affidavit” In August 1977 defendant unsuccessfully petitioned the Food and Drug Administration (“FDA”) for trade secret status for its calcium hydroxide and guanidine carbonate ingredients in “Dark and Lovely.” Thereafter, defendant sued the FDA in the United States District Court for the Southern District of Georgia for review of its administrative determination. The government submitted a motion for summary judgment which was supported by the affidavit of Heinz J. Eiermann (verified February 23, 1979), then Director of the Division of Cosmetics Technology, Bureau of Foods, FDA. (Ex. 60 for identification) The affidavit set forth Mr. Eiermann’s expert qualifications and responsibilities, his familiarity with defendant’s request, the procedures followed by the FDA during its official inquiry, and the agency’s findings as they relate to a review of relevant scientific literature. Defendant objects to the admission of this exhibit before us on the grounds of hearsay and the mental processes of a quasi-judicial officer. Fed.R.Evid. 803(8)(C) allows the admission of “[rjecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate a lack of trustworthiness.” The burden of showing that the proof is untrustworthy falls on the party opposed to it. See United States v. Paducah Towing Co., Inc., 692 F.2d 412, 421 (6th Cir.1982). Admissibility under this provision is within the broad discretion of the district court, see Miller v. New York Produce Exchange, 550 F.2d 762, 769 (2d Cir.), cert. denied, 434 U.S. 823, 98 S.Ct. 68, 54 L.Ed.2d 80 (1977) and courts have interpreted it quite liberally. Baker v. Elcona Homes Corp., 588 F.2d 551, 557 (6th Cir.1978), cert. denied, 441 U.S. 933, 99 S.Ct. 2054, 60 L.Ed.2d 661 (1979). We find that the Eiermann affidavit satisfies the requisites of Rule 803(8)(C). It is clear that the affidavit was a statement by one who was in a public office, acting on behalf of the office, giving findings in accordance with an investigation conducted in determining the trade secret status of a product on the market. We disagree with defendant’s argument that Mr. Eiermann’s statements were not factual or trustworthy. “Factual findings” as used in the rule encompass evaluative reports of public agencies, Zenith Radio Corp. v. Matsushita Electric Industrial Co., Inc., 505 F.Supp. 1125, 1145 (E.D.Pa.1980); Weinstein’s Evidence, ¶ 803(8)[03], at 803-250, and inferences drawn from facts. United States v. Paducah Towing Co., Inc., supra, at 420. Indeed, conclusory statements do not even render an item of evidence ipso facto inadmissible. Miller, supra, at 769. We conclude that Eiermann’s analysis of the chemistry of “Dark and Lovely” and his comparison to the chemistry of other relevant arts fall within the Rules’ expanded definition of “factual findings.” We also find that the Eiermann affidavit meets the test of trustworthiness for which the Advisory Committee on Proposed [FRE] Rules suggested four indicia: (1) the timeliness of the investigation; (2) the special skill or experience of the official; (3) whether a hearing was held or whether all sources were examined; and (4) possible motivational problems, e.g., impartiality. See Baker, supra, at 558; In re Multi-Piece Rims Products Liability Litigation, 545 F.Supp. 149, 151 (W.D.Mo.1982); see also Zenith Radio Corp., supra, at 1146-47 (additional seven factors named). With respect to the instant disputed document, timeliness is not an applicable factor for us to consider. (Cf. Baker, supra, where police officer who wrote report arrived at scene of accident minutes after its occurrence.) We find that Mr. Eiermann, as director of one of the divisions of the FDA, was an experienced and impartial official who made a statement under oath; indeed, in its brief on the issue of trade secret status, defendant identified him as an expert in the field of cosmetology. (Ex. 50 at 8) We further find that defendant has not met its burden of proving Mr. Eiermann failed to consider all relevant sources. We also are constrained to find unimpressive defendant’s argument against the admissibility of the affidavit on the ground that it constitutes the mental processes of a quasi-judicial officer. Even if Mr. Eiermann could be considered a quasi-judicial officer — a conclusion we find very doubtful — it is well-settled by law that whether “the [investigatory] proceedings could also be labeled a ‘quasi-judicial hearing’ is of no consequence in this regard.” United States v. School District of Ferndale, 577 F.2d 1339, 1354 (6th Cir.1978) (findings of an HEW Hearing Examiner in prior proceeding admissible); see Litton Systems, Inc. v. American Telephone and Telegraph Co., 700 F.2d 785, 818 (2d Cir.1983), cert. denied, _ U.S. _, 104 S.Ct. 984, 79 L.Ed.2d 220 (1984) (various FCC decisions admissible as factual findings resulting from investigations). Accordingly, we overrule defendant’s objection and find the Eiermann affidavit admissible. B. Admissibility of the Responses of the Canadian Patent Office to Defendant’s Patent Application Defendant objects to the introduction into evidence of plaintiff’s exhibit 215, the responses of the Canadian patent office to defendant’s patent application in that country for “Dark and Lovely.” During the prosecution of that application corresponding to the ’244 patent herein, the Canadian Examiner cited and relied upon a L’Oreal patent as pertinent prior art and advised the defendant to revise its specifications so as to distinguish its hair relaxing formulation from that of L’Oreal. Carson seeks to exclude this evidence under the ruling in Timely Products Corp. v. Arron, 523 F.2d 288 (2d Cir.1975). In Timely Products, the patent applicant sought to include in evidence nine foreign patents on the grounds that corresponding foreign patents are strong evidence of non-obviousness. This request was denied by our Circuit Court since there is no international standardized inquiry into patentability, and therefore the issuance of a United States patent carries with it a presumption of validity under 35 U.S.C. § 282 that cannot be destroyed by determinations made by foreign patent offices. Id. at 295. Similarly, in Esso Research Corp. v. Kahn Co., 379 F.Supp. 205 (D.Conn.1974), aff'd, 513 F.2d 1341 (2d Cir.1975), the district court allowed into evidence certain correspondences between Esso and the German patent office regarding the prior art. In so holding, the Court stated: [I]n considering what Esso submitted to the Patent Authorities in Germany as its claim this Court is primarily concerned just with Esso’s own admissions .of the scope and content of the prior art and second with its analysis of the difference between the prior art and its claim for a patent, not with the decision made ... with respect to patentability. Id. at 213. In accordance with the law enunciated in Timely Products, we are compelled to find exhibit 215, which deals with reactions by the Canadian patent office, inadmissible. C. Plaintiffs 10-K Form At trial, plaintiff objected to the introduction by defendant of exhibit RR, plaintiff’s 10-K form covering its business activities, on the ground of irrelevancy. However, defendant sought to admit it only for the limited purpose of setting forth defendant’s business activities. (Tr. 1239) We reserved decision on this issue and now conclude that for the purpose for which defendant requests its introduction, exhibit RR is admissible. See Fed.R.Evid. 401, 402 and 403. D. Defendant’s Confidential Exhibit In defendant’s Response to Plaintiff’s Post-Trial Memorandum, defendant submitted as Exhibit A a sealed envelope stamped “Confidential — Attorneys Only,” containing a document also marked in upper case letters “CONFIDENTIAL.” Defendant contends that this document contains admissions by plaintiff of the validity of defendant’s patents, estopping plaintiff from making many of its arguments in the instant litigation. The confidential nature of the sealed document precludes us from addressing defendant’s arguments in this opinion. We have examined the document, the defendant’s contentions and the law applicable thereto and find that the document has no bearing whatever on the vital issues this case presents. E. Defendant’s Objections to Plaintiffs Proposed Supplemental Findings of Fact and Conclusions of Law On May 7, 1984, we received a letter from plaintiff dated May 3,1984 requesting that we disregard all arguments and additional information in defendant’s objections to plaintiff’s Proposed Supplemental Findings of Fact and Conclusions of Law on the grounds that, inter alia, defendant used the pretext of objections to file excessively additional arguments and introduce supplemental evidence. Defendant’s reply thereto dated May 11 (received by us on May 14) stated that defendant merely organized the evidence by cross-referencing to relevant record evidence and that no supplemental evidence was introduced. Our review of the objections convinces us that they should not be disregarded. First, we find no supplemental evidence in the objections. Second, defendant’s alleged “additional arguments” are no more than explanations of its objections, restating contentions made throughout defendant’s papers. Plaintiff also uses its objections to restate some of its previous arguments, albeit to a much more limited degree. Since the evidence presented by defendant in its final post-trial paper offers nothing new, we have no hesitancy in refusing to disregard its objections to plaintiff’s Proposed Supplemental Findings of Fact and Conclusions of Law. II. THE SUBSTANTIVE LEGAL ISSUES A. Burden of Proof in Cases Alleging Patent Invalidity or Unenforceability Under our system of government, the inventor of a novel item or process who wishes to monopolize his or her work applies to the United States Patent and Trademark Office (“PTO”) for a patent. The office is staffed by qualified experts who determine whether the invention is patentable. See Howes v. Great Lakes Press Corp., 679 F.2d 1023, 1028 (2d Cir.1982); Georgia-Pacific Corp. v. United States Plywood Corp., 258 F.2d 124, 133 (2d Cir.), cert. denied, 358 U.S. 884, 79 S.Ct. 124, 3 L.Ed.2d 112 (1958). If a favorable disposition is granted after all the research has been completed, the “patent shall be presumed valid. Each claim of a patent (whether in independent or dependent form) shall be presumed valid independently of the validity of other claims; dependent claims shall be presumed valid even though dependent upon an invalid claim. The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting it.” 35 U.S.C. § 282. See Merck & Co., Inc. v. Olin Mathieson Chemical Corp., 253 F.2d 156, 164 (4th Cir.1958). This statutory presumption of validity, which generally requires clear and convincing evidence to be overcome, see Raytheon Co. v. Roper Corp., 724 F.2d 951, 956 (Fed.Cir.1983); Warner-Jenkinson Co. v. Allied Chemical Corp., 477 F.Supp. 371, 382 (S.D.N.Y.1979), aff'd, 633 F.2d 208 (2d Cir.1980), is weakened in some circumstances. For instance, if an applicant fails to provide the PTO with the relevant prior art, see Graham v. John Deere Co., 383 U.S. 1, 18, 86 S.Ct. 684, 694, 15 L.Ed.2d 545 (1966); Raytheon, supra, at 956; Douglas v. United States, 510 F.2d 364, 369 (Ct.Cl.1975); Julie Research Laboratories, Inc. v. Guildline Instruments, Inc., 501 F.2d 1131, 1136 (2d Cir.1974); Warner-Jenkinson, supra, at 382-83, aff'd, 633 F.2d 208 (2d Cir.1980); Kahn v. Dynamics Corp., 367 F.Supp. 63, 67 (S.D.N.Y.1973), aff'd, 508 F.2d 939 (2d Cir.1974), cert. denied, 421 U.S. 930, 95 S.Ct. 1657, 44 L.Ed.2d 88 (1975), or if the PTO was given incorrect data, see, e.g., Ansul Co. v. Uniroyal, Inc., 301 F.Supp. 273, 280 (S.D.N.Y.1969), modified, 448 F.2d 872 (2d Cir.1971), cert. denied, 404 U.S. 1018, 92 S.Ct. 680, 30 L.Ed.2d 666 (1972), or deceived as to the significance of correct data, see Kahn, supra, at 71, aff'd, 508 F.2d 939 (2d Cir.1974), cert. denied, 421 U.S. 930, 95 S.Ct. 1657, 44 L.Ed.2d 88 (1975), the presumption is more easily rebuttable. Furthermore, several courts have taken notice of the huge increase in recent years of the numbers and types of patent applications, leaving the PTO heavily burdened and overworked; consequently, less strength has been attached to the statutory presumption of validity. See Kahn, supra, 508 F.2d at 942, cert. denied, 421 U.S. 930, 95 S.Ct. 1657, 44 L.Ed.2d 88 (1975); Ansul Co., supra, 301 F.Supp. at 281, modified, 448 F.2d 872 (2d Cir.1971), cert. denied, 404 U.S. 1018, 92 S.Ct. 680, 30 L.Ed.2d 666 (1972). Nevertheless, 35 U.S.C. § 282 assigns the burden of persuasion to the challenger of the patent, in the instant case Revlon, which retains the burden of it on the merits throughout the case. See Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534 (Fed.Cir.1983); Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 773 (Fed.Cir.1983). B. The Anticipation Doctrine The doctrine of anticipation prohibits the granting of a patent to an inventor when, inter alia, the invention was known or used by others or was patented or described in a printed publication in this or a foreign country at least one year before the patent applicant invented it. 35 U.S.C. § 102. The statute calls for an identical disclosure or description between the subject matter sought to be patented and the prior art. See 35 U.S.C. § 103. Courts have found identity when a single prior reference, see Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1548 (Fed.Cir.1983); Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 771 (Fed.Cir.1983); In re Marshall, 578 F.2d 301, 304 (C.C.P.A.1978); Soundscriber Corp. v. United States, 175 Ct.Cl. 644, 360 F.2d 954, 960 (Ct.Cl.1966); Dielectric Laboratories v. American Technical Ceramics, 545 F.Supp. 292, 295 (E.D.N.Y.1982); Warner-Jenkinson Co., Inc. v. Allied Chemical Corp., 477 F.Supp. 371, 383 (S.D.N.Y.1979), aff'd, 633 F.2d 208 (2d Cir.1980), “clearly and unequivocally disclose[s] the claimed compound or direct[s] those skilled in the art to the compound without any need for picking, choosing; and combining various disclosures not directly related to each other by the teachings of the cited reference.” In re Arkley et al., 455 F.2d 586, 587, 59 CCPA 804 (1972) (emphasis in original). In other words, if the claims of the patent application are substantially equivalent to the pri- or art, the doctrine of anticipation is applicable. See In re Schaumann, 572 F.2d 312, 317 (C.C.P.A.1978). Specifically with regard to chemical compounds, anticipation requires that the prior art recite means of preparation of the compound as well as a minimum of one significant useful property. Warner-Jenkinson Co., supra, at 383 (Weinfeld, J.), aff'd, 633 F.2d 208 (2d Cir.1980). Judge Simon H. Rifkind, acting in the capacity of Special Master in Helene Curtis Industries v. Sales Affiliates, 233 F.2d 148 (2d Cir.1956) summed up the doctrine of anticipation when he wrote: It is of course elementary in the patent law that generic claims ... cannot survive where a species within the claimed genus has been invented, known or used by others prior to the patentee’s date of invention____ Prior invention, disclosure or use of a species anticipates the genus ____ The question always is whether the inventive act is of sufficient magnitude to justify the extension of a legal monopoly for the matter covered by the claims____ [I]t is only where, other requisites being present, the patentee has found a point or points at which some result differing in kind — and not merely in degree — from the results achieved by the prior art, that an inventive act may be said to exist. Id. at 152 (citations omitted). Unlike the doctrine of obviousness which we discuss infra, anticipation does not require that the prior references be analogous or even relevant arts to the invention. D. Chisum, 1 Patents § 3.02(3) at 3-9. We now proceed to examine the forms of prior art that plaintiff alleges anticipated defendant’s formula. 1. The Moore Article In 1933 E.K. Moore published an article entitled “The Influence of Various Nitrogen Compounds on Unhairing with Calcium Hydroxide Suspensions.” It examined ways of removing hair from dead animal skins to make leather. According to the author, when .32 moles (a certain number of molecules) of one of 15 nitrogen compounds is placed in one thousand eels, of calcium hydroxide at room temperature, the dehairing of the hides is accelerated. One of the 15 compounds Moore discussed was guanidine, and the .32 moles was equivalent to 1.88 percent free base guanidine; the reaction produced 2.43 percent guanidine hydroxide. (Ex. 24 at 249, 258; Tr. 815-17) Moore produced the free base chemical by thoroughly shaking guanidine carbonate in water, then adding an excess amount of calcium hydroxide. He noted that calcium carbonate is formed and precipitates, leaving the free base in water. (Tr. 817; Ex. 24 at 247-48) Moore left the solution on the hides for several days in order to accomplish the dehairing. Before addressing our conclusion on the anticipatory effect of Moore, we must emphasize the fact that defendant failed to give the Moore article to the PTO; instead, defendant gave the office two articles which discussed dehairing of animal hides. One article, written by Martin M. Rieger and Stanley Brechner, listed Moore among at least 240 other references; the second, by Richard Barry, listed Moore and 140 other references (Tr. 1001-02; Ex. 381, paper 6, Supplemental Amendment) — a method of listing generally resorted to by those bent upon engaging in the practice of deceit or sharp practices. We cannot say, however, we are convinced such an approach was adopted by this defendant. The failure of defendant to separately present Moore in his full stature to the PTO weakens the presumption of validity to which the patent is generally entitled with regard to this prior reference. See Graham, supra, at 18, 86 S.Ct. at 694; Raytheon, supra, at 956; Douglas, supra, at 369; Julie Research Laboratories, supra, at 1136; Warner-Jenkinson, supra, at 382-83, aff'd, 633 F.2d 208 (2d Cir.1980); Kahn, supra, at 67, aff'd, 508 F.2d 939 (2d Cir.1975), cert. denied, 421 U.S. 930, 95 S.Ct. 1657, 44 L.Ed.2d 88 (1976). We find that the Moore article did anticipate defendant’s product. Both used the same chemicals; defendant’s patent advised a concentration of guanidine carbonate of 1.2 to 40 percent and Moore suggested 1.88 percent; the temperature range for defendant’s formula varies from 35°F to 140°F while Moore’s experiments were conducted at room temperature; both suggest an excess of calcium hydroxide. The only real difference between the two is the time that the formula is left on the hair, a fact we find that one skilled in the art would readily recognize as a distinction between depilation and hair relaxation. The evidence adduced at trial established that if an alkaline formula is retained on hair for a short amount of time, the cystine bonds in the hair will break and the hair configuration reforms; if the formula is kept on for a longer time, it will do much more than merely break the bonds — the powerful chemicals will remove the hair altogether. {See Ex. 60, ¶ 13, Affidavit of Heinz J. Eiermann, director of Division of Cosmetic Technology, Bureau of Foods, FDA [“[T]he identical ingredient may cause little structural breakdown, as with a hair wave or hair relaxer, or total hair destruction, as with a depilatory. Consequently, a basic chemical reaction which occurs in a depilatory also occurs, to a lesser extent, in hair relaxers or hair waves. There is an interrelationship betweeii all such products.”]; Ex. 2461, deposition of Charles Raymond Hendrix, Jr., Project Manager of Research and Development at Carson Products Co., at 40 [whether guanidine compounds with calcium hydroxide remove hair or merely relax it is only a question of how long the compounds remain in contact with the hair]; Tr. 172-75). Further support for our conclusion that one skilled in the art of hair straightening would believe that Moore anticipated defendant’s product despite the difference in time that the formula is applied in each is found in the testimony at trial of plaintiff’s witness, Mr. Gus Kass, who we found extremely impressive and positively credible; we adopt his testimony in full. Mr. Kass, a consulting chemist with his own firm involved in the cosmetic and personal care industry (Tr. 793), testified: Q: Is there any difference, in your opinion, Mr. Kass, as to the manner by which Moore produces his free base guanidine in aqueous solution and the manner by which Carson describes and claims how to produce guanidine hydroxide? A: There is no difference. Q: How did you arrive at that opinion, Mr. Kass ... ? A: Well, the Moore article very much parallels the Windus and Turley article which was published only about 4 years after Moore. In both cases the article was concerned with the dehairing of hides. In both cases a lime bath was used. In both cases additives were added to speed up the dehairing activity____ When I saw the Windus and Turley article, having already some knowledge of the chemistry of hair, it struck me immediately as an obvious method to explore for a possible method of permanent waving of hair. The Moore article does and would strike me in exactly the same manner. Q: In your opinion, would a cosmetic chemist of ordinary skill react the same way? A: Yes. (Tr. 828-31) Defendant argues that Moore sets forth 145 possible nitrogen compounds of which 15 were reported to be successful (including guanidine) and that such a wide spectrum of possibilities cannot anticipate a specific formula. See In re Luvisi, 342 F.2d 102, 107-08, 52 CCPA 1063 (1965) (quoting In re Garvey, 41 U.S.P.Q. 583, 584 (Patent Office Board of Appeals 1939) (“The likelihood of producing a composition [where the disclosed references revealed a very great number of possible permutations] would be about the same as the likelihood of discovering the combination of a safe from a mere inspection of the dials thereof.”)) Focusing on this issue, the United States Court of Customs and Patent Appeals in In re Ruschig, 343 F.2d 965, 994, 52 CCPA 1238 (1965) found that the possibility of 48 compounds resulting from the unguided teachings of the prior art was too broad a class to anticipate. However, the same court in In re Petering, 301 F.2d 676, 681, 49 CCPA 993 (1962) found that the broad generic disclosure of compounds also described specific preferences and a relatively small number of variations, so that in actuality the class was limited to only 20 compounds, each of which would be envisaged by one skilled in the art. See also In re Sivaramakrishman, 673 F.2d 1383, 1384 (C.C.P.A.1982); In re Schaumann, supra, at 316. Moore impressively taught that only 15 nitrogen compounds were successful in accelerating depilatories, one of which was guanidine. We thus find that the mention of 14 other possibilities, or 130 additional nitrogen compounds designated as unsuccessful in achieving depilation, does not negate our finding of anticipation. Defendant also contends that the principal active ingredient declared by Moore was calcium hydroxide, and that guanidine was merely used as an accelerator. Therefore, defendant argues, it could not anticipate defendant’s products which used guanidine hydroxide as the principal active ingredient. We reject this argument and find that the principal active ingredient responsible for the effect of hair relaxation in the reaction between a guanidine salt and a water soluble hydroxide is uncertain; defendant only hypothesizes that guanidine hydroxide deserves the credit. Indeed, in its own patent specifications, defendant admits its uncertainty by stating, “The principal active ingredient in the above-described reaction product appears to be guanidine hydroxide.” (Ex. 234, col. 5, lines 9-10; Ex. 235, col. 5, lines 11-12) (emphasis ours). Further, others disagree with defendant’s conclusion with which we are now dealing. For instance, Marvin Goldberg, director of research and development for Revlon Research Center, believes that the hydroxyl ions that are released when guanidine carbonate and calcium hydroxide react together are the major contributors to effectively straighten hair. (Ex. 246II, Goldberg, at 58) Similarly, Ronald W. Baer, a group leader in hair products development at Cheseborough-Ponds, gave it as his opinion that hydroxyl ions are the agents bringing about relaxation, and that the guanidine carbonate/calcium hydroxide reaction only serves to provide a source of hydroxyl ions. (Ex. MM at 90) This conclusion is concurred in by Hendrix (Ex. 2461, Hendrix, at 37); furthermore, Dr. William Elliott Meyers, head of the biotechnology division at SRI (Ex. 2461, Meyers, at 6), even goes so far as to say that the initial hydroxide ingredient, e.g., calcium hydroxide, by itself would relax hair given enough time. {Id. at 110) Mr. Baer also deposed that calcium hydroxide can relax hair in “an hour [but] it didn’t do a very good job.” (Ex. MM at 89) We do not undertake to decide a question on which scientists disagree. We merely conclude that one who is skilled in the art of hair relaxation would know of Moore’s experiments with guanidine carbonate and calcium hydroxide and would also know that the particular chemical responsible for reacting on the hair befuddled chemists, compelling the conclusion that the chemical formula used in Moore would relax hair, regardless of what principal active ingredient is responsible. Defendant further argues that guanidine, which is an unstable chemical, decomposes into ammonia rapidly, and since Moore’s experiments left the guanidine on the hides for several days, the depilation really resulted from the ammonia in water, or ammonium hydroxide, not the guanidine. Defendant’s witness Mr. Albert Shansky, a self-employed consulting chemist in the cosmetics field (Tr. 44), reported that in eight hours at room temperature, 50 percent of guanidine in a solution decomposes into ammonia (Tr. 240-41); however, he admitted that his data was based on tests performed with which he was unfamiliar. (Tr. .261) Although ample proof was introduced that guanidine decomposes into ammonia and urea, see, e.g., testimony of Dr. Cowsar, (Tr. 1168), we find no conflict in that fact and our conclusion that Moore anticipates defendant’s product. Defendant’s patent specifications call for the removal of the product from the hair after 45 minutes at the maximum; “[the] 45 minute time generally [is] about the greatest length of time that is commercially acceptable to end users.” (Ex. 234, col. 6, lines 46-58; Ex. 235, col. 6, lines 49-61) Failure to remove the formula past that time period will result in disintegration of the hair (as we have already discussed). The fact that Moore kept the hides in solution for several days does not imply that most of the depilation did not occur within hours after the solution was first applied, before the guanidine began decomposing. Defendant also invokes the “accidental prior use” doctrine arguing that Moore’s failure to appreciate his production of guanidine hydroxide or its utility as a hair treatment means he did not anticipate defendant’s product. Judge Learned Hand explained this theory in H.K. Regar & Sons, Inc. v. Scott & Williams, Inc., 63 F.2d 229, 231 (2d Cir.1933) as follows: It is quite true that an accidental use will not anticipate a process, if the earlier practiser was not aware of what he was doing, or how he did it. His work must give some assurance that the result can be reached another time, and of this there can be none unless the process is deliberate and the means understood. Nothing else can be called an art; it is merely an accident____ But a new use of an old thing or an old process, quite unchanged, can under no circumstances be patentable [.]'... (emphasis supplied) See In re Tuominen, 671 F.2d 1359, 1361 (C.C.P.A.1982); In re Pearson, 494 F.2d 1399, 1403 (C.C.P.A.1974); In re Hack, 245 F.2d 246, 248 (C.C.P.A.1957). Nor may a patent issue when a property inherent in an old product is newly discovered. See General Electric Co. v. Jewel Incandescent Lamp Co., 326 U.S. 242, 248-49, 66 S.Ct. 81, 83-84, 90 L.Ed. 43 (1945) (“It is not invention to perceive that the product which others had discovered had qualities they failed to detect”); In re May, 574 F.2d 1082, 1090 (C.C.P.A.1978); In re Pearson, supra, at 1403; In re Thuau, 135 F.2d 344, 347, 30 CCPA 979 (1943). We find that guanidine hydroxide inhered in Moore’s experiments as a natural consequence of the combination of guanidine carbonate and calcium hydroxide, and that defendant merely used an old process — disclosed by Moore — to achieve a similar result. Accordingly, we are convinced that Moore’s article anticipated defendant’s product, and consequently all of the claims asserted in both patents are unenforceable. 2. Demuth Plaintiff also alleges that British Patent No. 636,181 (“Demuth”) (Ex. 19) anticipated defendant’s patents. Demuth discloses a composition for depilating human hair at a relatively low pH. The specification calls for a combination of a “lower mercapto [a derivative of hydrogen sulfide (Ex. 243 at 11)] carboxylic acid such as thioglycollic acid, [] used as the active principle” with an equivalent amount of an alkaline base, preferably guanidine. (Tr. 849; Ex. 19 at 1, col. 1, lines 11-38) Three examples are listed and all specify the combination in water of guanidine with a thioglycolate mixture and other additives. Example one specifically sets forth guanidine thioglycolate. Plaintiff’s argument is based on its understanding, which we find persuasive, that “guanidine hydroxide” is really no more than the guanidine ion in water, for water is composed of two hydrogen atoms and one oxygen atom and when the guanidine atom is inserted in water it links up with hydrogen, producing guanidinium ions with a positive charge (GH+); the remaining hydrogen and oxygen atoms stay attached and produce an hydroxyl ion with a negative charge (OH-). Just as quickly, however, the ions break apart and reform into their original states. Thus, there is always guanidine free base, water, guanidinium ions and hydroxyl ions in the guanidine hydroxide solution. (Tr. 1049-51) Indeed, plaintiff’s expert Kass impressively testified that it is his “understanding that free base guanidine is also referred to as guanidine hydroxide.” (Tr. 838) Likewise, Dr. Kenneth Dillon, a senior chemist in the Analytical Chemistry Division of the Applied Sciences Department of SRI and a witness for defendant (Tr. 584) testified that “if guanidine is present in water there will always be guanidine hydroxide present.” (Tr. 643) Since all that is needed to produce guanidine hydroxide is guanidine free base in water, plaintiff argues that the Demuth patent, which contains guanidine free base in water to produce a depilatory, anticipates defendant’s claims. Plaintiff’s argument suggests that defendant’s product would be anticipated by any formula in which guanidine is used together with water. We do not read defendant’s patents so broadly. The ’244 patent claims (Ex. 234) teach a process and composition for treating hair whereby guanidine hydroxide is formed by reacting a guanidine salt with a water soluble hydroxide for the purpose of relaxing hair. These elements are not “disclosed within the four corners” of the Demuth patent, see Warner-Jenkinson Co. v. Allied Chemical Corp., 477 F.Supp. 371, 383 (S.D.N.Y.1979) (Weinfeld, J.), aff'd, 633 F.2d 208 (2d Cir.1980) (quoting General Tire & Rubber Co. v. Firestone Tire and Rubber Co., 349 F.Supp. 345, 356 (N.D.Ohio 1972), aff'd in relevant part, 489 F.2d 1105 (6th Cir.1980), which teaches the combination of guanidine with a thioglycolate mixture. Nor does the Demuth patent recite the same means of preparation as defendant’s formula — a requirement of anticipation in chemical cases set forth by Judge Weinfeld. Warner-Jenkinson, supra, at 383. Defendant’s ’540 claims are written in more general terms-than the ’244 claims and do not specify the means of preparation of the relaxation formula. However, it is well-established that claims must be read in light of their accompanying and detailed specifications to give the broadest possible interpretation to the claims. See General Electric Co. v. United States, 215 Cl.Ct. 636, 572 F.2d 745, 757 (1978); In re Okuzawa, 537 F.2d 545, 548 (C.C.P.A.1976); Noma Lites Canada Ltd. v. Westinghouse Electric Corp., 399 F.Supp. 243, 254 (D.C.D.C.1975). The specifications of the ’540 patent, like the specifications and claims of the ’244, describe the combination of a guanidine salt with a water soluble hydroxide to produce the alkaline guanidine hydroxide, a combination not disclosed by Demuth. Accordingly, we find that the Demuth patent does not anticipate defendant’s patents. 3. “Gold Magic” Plaintiff next contends that another product manufactured by defendant called “Gold Magic” (Ex. I) anticipates defendant’s patents. “Gold Magic” is a depilatory that was sold more than one year before defendant filed its patent applications for the product now in dispute. It contains 1.5 percent by weight guanidine carbonate; ten percent by weight calcium thioglycolate; and six percent by weight calcium hydroxide. When these ingredients are mixed with water, guanidine thioglycolate and guanidine hydroxide are formed and from this mixture “Gold Magic” is canned. Defendant contends that the calcium thioglycolate in “Gold Magic” is much more soluble than the calcium hydroxide; thus, the guanidine carbonate reacts with the calcium thioglycolate, producing guanidine thioglycolate, before reacting with the calcium hydroxide to produce guanidine hydroxide. According to defendant, the lack of guanidine hydroxide is evidenced by the pH of 12.2; defendant argues that if guanidine hydroxide were formed, the pH would be over 12.9. (Tr. 346-47; 1067-68) Since guanidine hydroxide is allegedly not the reaction product, defendant takes the position that “Gold Magic” does not anticipate defendant’s patents. We disagree and find that both “Gold Magic” and “Dark and Lovely” use the same ingredients to produce the same end product, guanidine hydroxide, except that “Gold Magic” employs an additional compound to produce an additional end product. Defendant’s argument that guanidine hydroxide is not produced in the depilatory flies in the face of deposition statements by defendant’s witnesses and the position taken by the defendant in a different case. Specifically, the inventor of “Dark and Lovely,” Mr. de la Guardia, deposed that two guanidine compounds (guanidine thioglycolate and guanidine hydroxide) form when “Gold Magic” is mixed with water. (Tr. 375; 377-78) And in the case of Carson v. Califano, 594 F.2d 453 (5th Cir.1979) (Ex. 50), in which the instant defendant was the plaintiff, defendant wrote in its brief: “When water is added to the [Gold Magic] dry powder mixture ... it activates [the] ingredients causing guanidine carbonate to displace some of the calcium in both calcium hydroxide and calcium thioglycolate to form two guanidine compounds____” Id. at 16. Defendant’s argument that the 12.2 pH of “Gold Magic” is too low does not persuade us to the contrary. First, we note that defendant’s ’244 and '540 patent specifications provide that the pH value in the guanidine hydroxide must be above 11.8, .4 less than the value in “Gold Magic.” Second, there was testimony by Dr. Donald Cowsar, director of applied sciences research at SRI (Tr. 1033) and by Mr. de la Guardia that the calcium hydroxide in “Gold Magic” may have served to some extent as a buffer, i.e., a substance that maintains a solution at a constant pH even if more acid or alkaline is added. (Tr. 1068-69; 380-82) Consequently, the pH would not rise even though guanidine hydroxide is present in the solution. Finally, Mr. Kass, whose testimony we have adopted in full, gave it as his opinion that, “the measurement of the pH [in the L’Oreal formulas] [would not] have indicated anything ... There is no way of interpreting [whether guanidine hydroxide is formed] from the pH determinations.” (Tr. 955) Our conclusion that “Gold Magic” anticipated defendant’s patents finds further support in defendant’s Summary of Relaxer (“Dark and Lovely”) Research paper. (Ex. 49, at 2) The paper states: [W]e were trying to determine the reaction mechanism of our secret depilatory composition containing calcium thioglycolate, calcium hydroxide and guanidine carbonate. The last ingredient was used as an accelerator. We were trying to determine if guanidine carbonate was reacting with calcium thioglycolate or with the calcium hydroxide. It occurred to us that perhaps the reaction product of guanidine carbonate and calcium hydroxide could be a hydroxide of guanidine and that it might be used to form a novel hair relaxer product____ Guanidine hydroxide was isolated and tests indicated that the isolated ingredient had excellent relaxing properties____ In short, Mr. de la Guardia’s thinking process when developing “Dark and Lovely” evidenced that defendant’s own product, “Gold Magic,” clearly and unequivocally disclosed, and therefore anticipated, the end product of guanidine hydroxide when calcium hydroxide was mixed with guanidine carbonate. See In re Arkley et al., supra, at 587. 4. L’Oreal The final prior references that plaintiff contends anticipated defendant's patents are two patents issued to L’Oreal, U.S. Patent No. 3,908,672 (“ ’672 patent”) (Ex. 16) and U.S. Patent No. 3,971,391 (“ ’391 patent”) (Ex. 18). The L’Oreal patents disclose methods of transforming the tough disulphide bonds in hair into single sulfer bonds, freeing the excess sulfer atoms. This new structure with the single sulfer bonds comprises the amino acid lanthionine. The patents assert that lanthionized hair, lacking the disulphide bond of cystine which retains the natural configuration of hair, has great elasticity when wet. Several ways of producing lanthionization are set forth in the L’Oreal patents. The basic formula advises applying to the hair an hydroxide base of an alkaline earth metal or alkali, such as calcium hydroxide or lithium hydroxide, in an aqueous solution (Ex. 16, cols. 1-4; Ex. 18, cols. 1-5). Another way to achieve the result of modifying the hair and also to reduce the time, temperature and/or pH of the L’Oreal treatment is by adding a “lanthionization activator.” Such an activator is called an electrolyte; by itself, it has limited hydrolytic action on the disulphide bonds of cystine. (Ex. 16, col. 5; Ex. 18, col. 4) Furthermore, “[t]he electrolytes ... can also be organic electrolytes such as guanidine carbonate.” (Ex. 16, col. 5; Ex. 18, col. 4) The hydroxide is mixed with the electrolyte on wet hair. (Ex. 16, col. 6; Ex. 18, col. 5) Example 11 of the ’672 patent specifically teaches the combination of 1.25 percent lithium oxide with 18 percent guanidine carbonate, producing a reaction product with a pH of 12.6 and a lanthionization degree of 21.5 percent. Example 17 of the ’391 patent teaches a mixture of 2 percent lithium hydroxide with 18.5 percent guanidine carbonate resulting in a reaction product with a pH of 12.7 and a degree of lanthionization on wet hair of 44 percent. The specifications of both patents teach that “[o]f course, it is necessary to rinse carefully the hair after treatment.” (Ex. 16, col. 3; Ex. 18, col. 2) The limitations of the L’Oreal patents include an operating temperature of 25°C and upward, a time of 5 to 60 minutes in the ’672 patent and 10 to 60 minutes in the ’391, a pH range of 10.5 to 13, and a concentration of organic electrolytes (such as guanidine carbonate) of up to one mole per liter, i.e., from zero to 18.5 percent. (Ex. 16, claim 14; Ex. 18, claim 9(b)) Our analysis of whether the L’Oreal patents anticipate defendant’s patents begin with our observations that: (1) both formulas seek to modify the natural configuration of hair by transforming cystine; (2) L’Oreal suggests several methods for accomplishing this, one of which combines an hydroxide base with an electrolyte such as guanidine carbonate, while defendant’s patents teach the mixture of an hydroxide with a water soluble salt such as a guanidine salt; (3) although two examples in the L’Oreal specifications specifically combine lithium hydroxide with guanidine carbonate, the specifications further provide that calcium hydroxide may be substituted as an organic electrolyte; likewise, although 11 examples in defendant’s patent specifications call for the combination of guanidine carbonate and calcium hydroxide, the specifications also provide that lithium hydroxide may be substituted for calcium hydroxide; and (4) the time, temperature, pH and concentration ranges of both formulas largely overlap: The L’Oreal formulas are applied for 5 (or 10) to 60 minutes, the “Dark and Lovely” formula for 5 to 45 minutes; the L’Oreal formulas operate at 25°C (77°F) and upward, the “Dark and Lovely” formula at 35°F to 140°F; the L’Oreal formulas have a pH range of 10.5 to 13, the pH of “Dark and Lovely” is above 11.8, preferably 12.5 to 13.5; and the concentration of guanidine carbonate put into the initial L’Oreal reaction ranges from zero to 18.5 percent; its concentration range in “Dark and Lovely” is 1.2 to 40 percent, most preferably 5 to 8 percent. Defendant attempts to distinguish the two products by concentrating on examples 11 and 17 of the L’Oreal patents, which specify the combination of lithium hydroxide with guanidine carbonate. Defendant justifies its focus on these examples by arguing that a reading of the specifications of L’Oreal would suggest up to 1,200 different combinations of ingredients; thus, for the purposes of anticipation, one who is skilled in the art would concentrate on the examples only. Defendant concludes that the reaction between lithium hydroxide and guanidine carbonate produces very little, if any, guanidine hydroxide. Dr. Dillon testified that lithium hydroxide is not substantially insoluble, unlike calcium hydroxide, so that when placed in water with guanidine carbonate, hardly any of the soluble lithium combines with guanidine to form a precipitate. (Tr. 646-47; 748) Consequently, the water, is filled with lithium, carbonate, hydroxide and guanidinium ions as well as free guanidine. (Tr. 753-54) Defendant postulates that the additional ions, which it calls “spectator ions,” disrupt the formation of guanidine hydroxide. As Dr. Cowsar analogized: If we take a solution of guanidine hydroxide and we add something to that solution, and for the sake of simplicity I am going to say we sprinkled some table salt into that solution, we put in sodium chloride. Table salt is a salt because when you put it in water it dissociates into sodium ions and chloride ions. [Tjhis is no longer guanidine hydroxide when we add table salt to it. Depending upon the concentration, and I am assuming that I sprinkled enough in, ... this is now a solution of sodium hydroxide because it has sodium ions and hydroxide ions, the same way as if I had put them in as sodium hydroxide and it has guanidine ions and chloride ions as though I had added the guanidine in as guanidine chloride instead of free guanidine. ... [I]f the concentration of sodium ions is equal to the concentration of hydroxide ions or greater ... this solution no longer behaves as what I call guanidine hydroxide in the way it relaxes hair or the way it does anything with these ions present. ... [Tjhese so-called spectator ions disrupt this equilibrium and cause different results to be obtained with these solutions. (Tr. 1054-55) Defendant draws further support for its “spectator ions” theory from results obtained in experiments performed by Mr. Kass, who sought to determine the amount of lithium carbonate (and corresponding amount of guanidine hydroxide) formed when amounts of lithium hydroxide ranging from one half to four percent were added to a water solution of 18 percent guanidine carbonate, the uppermost limit of guanidine carbonate in L’Oreal’s patents. Each experiment was tested at 25°C (77°F) and 50°C (122°F). The experiments demonstrated that where one gram of lithium hydroxide was used at 25°C, no lithium carbonate (and thus no guanidine hydroxide) was recovered; at 50°C, .015 percent was recovered. When two grams were mixed, .5 percent of lithium carbonate precipitated. Since the L’Oreal patents teach the use of 1.25 grams, defendant argues that it may be assumed that hardly any lithium carbonate or guanidine hydroxide is recovered. (Tr. 1082-83; Ex. WW) Dr. Dillon performed the exact same experiments and measured the pH of each of the resultant solutions. His results showed a pH range of 12.7 to 13.21 (the less lithium hydroxide added, the lower the pH value) (Ex. HH). Dr. Cowsar testified that if guanidine hydroxide had been formed, the pH would have ranged from 13 to 13.66. (Tr. 1089; Ex. VV) He hypothesized that no guanidine hydroxide at all forms when guanidine carbonate and lithium hydroxide are combined, (Tr. 1078-79) but at most, a solution with these chemicals would contain a mixture of both guanidine hydroxide and lithium hydroxide. (Tr. 1093) In contrast, Dr. Marlene Katz, head of the bioformulations section of SRI (Ex. 2461, Katz, at 5), deposed that the L’Oreal formulas would produce guanidine hydroxide. {Id. at 106) Dr. Cowsar also noted that since guanidine hydroxide decomposes into ammonia, that odor can always be detected excluding from solutions in which the guanidine hydroxide sits for approximately 30 minutes. However, Mr. Kass observed no smell of ammonia in his experiments after 30 minutes — supporting evidence that there was no guanidine hydroxide in his experiments modeled after the L’Oreal examples. (Tr. 1094-95) Mr. Kass interpreted his experiments differently. He found that a white precipitate (lithium carbonate) formed “almost instantly;” and “that from the amount o