Full opinion text
TABLE OF CONTENTS I.Chemistry of Polymers A. Building Blocks B. The Formation of Polymers II.The ’851 Patent III.Invalidity A. Anticipation 1. The Natta ’300 Patent a. The Section 146 Proceeding b. The Evidence at Trial 1) Written Description 2) Enablement 2. The Zletz ’257 Patent a. Express Disclosure b. Inherent Disclosure 1) EP-34 a) Percent Crystalline Polypropylene b) Percent Ethylene Content 2) EP-35 a) Percent Crystalline Polypropylene b) Percent Ethylene Content 1)) The Gardner Method 2)) The Brame Method 3)) Other Experiments a)) Maury b)) Zletz (i) AZ-14 (ii) AZ-20 c. Chemistry 1) Disproportionation 2) Ethylene Polymerization 3) Alkylation B. Double Patenting C. Obviousness 1. Scope and Content of the Prior Art 2. Differences Between the Prior Art and the Claimed Invention 3. The Level of Ordinary Skill in the Art 4. Secondary Considerations a. Commercial Success b. Failure of Others c. Contemporaneous Independent Development 1) The Peters’ Runs a) P-1 b) P-9 5. Conclusion D. Section 101, 112 1. Utility and Enablement a. The Interference Proceedings b. Defendants’ Arguments 1) Disclosure Is Insufficient 2) Underlying Factual Basis for the 146 Proceedings a) Young’s Modulus b) Molecular Weight c) Thermal Stability 2.Best Mode E. Inequitable Conduct 1. Factual Background: The Development of Crystalline Polypropylene a. The Early Work at Phillips b. The Discoveries of Ziegler and Natta c. Subsequent Development at Phillips 2. Materiality 3. Intent IV. Infringement A. Literal Infringement 1. Phillips’ 1953 and 1954 Specifications 2. File Wrapper Estoppel a. Claims 29-37 b. Claim 38 B. Reverse Doctrine of Equivalents 1. Molecular Weight 2. Toughness 3. Commercial Utility a. Solubility b. Melting Point c. Density d. Infrared Analysis e. X-Ray Analysis 4. Conclusion V. Attorneys’ Fees VI. Conclusion OPINION LONGOBARDI, District Judge. U.S. Patent 4,376,851 (“the ’851 patent”) was issued on March 15, 1983, to Phillips Petroleum Company (“Phillips”) as assign-ee of John P. Hogan and Robert L. Banks (“Hogan and Banks”). The patent claims the invention of crystalline polypropylene. Phillips sued all other parties (“Defendants”) to this litigation for infringement of the ’851 patent. Subsequently, each of Defendants was licensed and the suits against Shell Oil Co. (“Shell”), Northern Petrochemical Co. (“Northern”) and El Paso Products Co. (“El Paso”) were dismissed. Each of them, however, sued Phillips in a declaratory judgment action claiming that the ’851 patent was invalid, not infringed and unenforceable. The original suits against Hercules Incorporated (“Hercules”) and U.S. Steel (“U.S.X.”) were then consolidated with the declaratory judgment actions. Defendants’ contentions may be summarized as follows: (a) The ’851 patent is invalid because it was anticipated by prior art, in particular, U.S. Patent No. 3,112,300 (“the ’300 patent” or “Natta patent”). In this respect, the '851 patent's parent applications in 1953 and 1954 were not valid under 35 U.S.C. § 112 and, therefore, they did not pre-date the Natta patent’s effective date of June 8, 1955. (b) The ’851 patent is invalid for double patenting. (c) The '851 patent is unenforceable because of inequitable conduct. (d) Although Defendants concede literal infringement, they contend the reverse doctrine of equivalents negates liability. (e) Phillips should be estopped from enforcement of the patent based on cancellation of claims during prosecution of its applications. (f) The '851 patent is invalid because it is anticipated under 35 U.S.C. § 102(e) and/or obvious as provided under 35 U.S.C. § 103 because of U.S. Patent No. 2,692,257 (“the ’257 patent” or “the Zletz patent”) granted October 19, 1954, on an application filed on April 28, 1951. (g) The ’851 patent is invalid because the application fails to state a specific utility for the product in violation of 35 U.S.C. § 101. (h) The '851 patent is invalid because the patentees failed to set forth in their application a written description for making the invention and the best mode known to them for making the invention, in violation of 35 U.S.C. § 112. The first application leading to the '851 patent was filed on January 27, 1953 (“the 1953 application”) and was assigned Serial No. 333,576 by the U.S. Patent Office. Phillips filed another application, Serial No. 476,306 on December 20, 1954 (“the 1954 application”) as a continuation-in-part application. On January 11, 1956, Phillips filed application Serial No. 558,530 (“the 1956 application”) as a continuation-in-part of both the 1953 and the 1954 applications. Ultimately, the 1956 application, after twenty-seven years of protracted litigation, resulted in the issuance of the '851 patent. On September 9, 1958, the Patent Office declared an interference. At least five groups of inventors and their corporate assignees were contending that they were the first to discover crystalline polypropylene. The Patent Office Board of Patent Interferences (“Board”) issued an opinion on November 29,1971, awarding priority of invention to Montedison, S.p.A. (“Montedison”) which claimed the benefit of U.S. Application No. 514,099 filed by Guillo Natta, et al, on June 8, 1955. Phillips, E.I. Du Pont de Nemours & Co. (“DuPont”) and the Standard Oil Company (Indiana) (“Standard”) sought review pursuant to 35 U.S.C. § 146. The actions were consolidated and tried before The Honorable Caleb M. Wright, United States District Judge for the District of Delaware. The Court resolved the priority issue in favor of Phillips. Standard Oil Company v. Montedison, 494 F.Supp. 370 (D.Del.1980), aff'd, 664 F.2d 356 (3d Cir.1981). Phillips was then granted the ’851 patent after proceedings before the United States Patent and Trademark Office (“PTO"). I. CHEMISTRY OF POLYMERS A. Building Blocks Each chemical element has a unique atomic structure composed of protons, neutrons and electrons, the building blocks common to all chemical elements. An atom of hydrogen, the simplest element, is composed of one proton and one electron. It has an atomic weight of 1. (Bailey, Tr. at 106, 127-27). Carbon has an atomic weight of 12. (Bailey, Tr. at 127). Hydrocarbons are molecules formed from hydrogen atoms and carbon atoms. (Bailey, Tr. at 104; Glossary, D.I. 206, at 24). The hydrocarbon ethylene is formed from two carbon atoms, each bonded by two hydrogen atoms. (Bailey, Tr. at 129—30; Glossary, D.I. 206, at 13-14): The hydrocarbon propylene is formed from three carbon atoms and six hydrogen atoms. (Bailey, Tr. at 131-32; Glossary at 34): Both the ethylene and propylene molecules have double bonds (=) between two adjacent terminal carbon atoms. Such compounds are called 1-olefins or alpha-olefins. Because the double bond is more reactive than a single bond, chemical reactions are more likely when molecules with double bonds are present. (Bailey, Tr. at 119-21, 129; Glossary, D.I. 206, at 10-11, 31). B. The Formation of Polymers Polymers are large chain-like molecules formed by bonding together several much smaller molecules called monomers, e.g,, ethylene or propylene. (Bailey, Tr. at 140-41). If only one monomer is used, that is, if all the links in the chain are identical, the polymer is a homopolymer. If some differ from others, the polymer is a copolymer. (Glossary, D.I. 206, at 17, 24). The process of combining monomers to make polymers is called polymerization. In the polymerization of propylene, the double bond in each monomer molecule opens up so that adjacent monomer units share a bond, thereby creating a linear chain. (Bailey, Tr. at 162-63, 165-67). Polymerization reactions are usually induced by means of a catalyst. The catalyst is the stimulus which induces the monomers to bond together and the agent which determines the nature of the resulting structure. (Bailey, Tr. at 151; Long, Tr. at 576). Any polymerization process consists of three essential steps: first, the catalyst must be prepared; second, the monomer must be brought in contact with the catalyst under appropriate conditions; and third, the polymer of interest must be separated from the catalyst and from other products of the reaction. (Bailey, Tr. at 151; Long, Tr. at 2752). All three steps are important and a polymer chemist who reports a new polymerization process will describe all of them. (Long, Tr. at 2753). A combination of only two monomers into one molecule is called a “dimer”, a molecule formed from three monomers is called a “trimer”, a molecule of four monomers is called a “tetramer” and so on. Each combination results in a unique and distinct compound, differing from all the others in the length of the chain. (Bailey, Tr. at 140-42, 250-52). As the number of monomer units added to the chain becomes large, it is inconvenient to give each new compound a separate name. The resulting molecules are all generically called “polymers.” If propylene is used, the polymer is called polypropylene. In the polymerization process, many polymer chains are formed. Not all polymer chains are the same length. Most processes will produce a variety of lengths corresponding to a certain range of molecular weights. Therefore, a polymer product is characterized by an average molecular weight. (Bailey, Tr. at 146-47). Polymers composed of monomer units which have entered the chain in a regular and ordered way may pack together with other ordered polymer chains to form crystals if the ordered structure is long enough. (Bailey, Tr. at 173-75). Depending on the catalyst used, the polymerization of propylene can yield molecules having an ordered linear structure known as “isotactic.” In isotactic polypropylene, the propylene monomer enters the chain in a regular head-to-tail fashion and the pendant methyl group is always located on the same side of the backbone of the chain: On the other hand, polypropylene chains may also have a disordered structure, called “atactic”, which may result from a random orientation of the pendant methyl group with respect to the backbone: The disordered structure prevents the polymer from forming crystals and hence the polymer is amorphous. The product of a polymerization reaction may contain both atactic and isotactic molecules. (Bailey, Tr. at 160-79, 201-06, 208-11, 278; Glossary, D.I. 206, at 12, 25-26). II. THE ’851 PATENT The ’851 patent contains one claim which reads as follows: “Normally solid polypropylene consisting essentially of recurring propylene units, having a substantial crystalline polypropylene content....” (PTX 1). The claim defines the composition generally referred to as “crystalline polypropylene” by reference to three properties. First, the product is “normally solid.” This means that under normal conditions of temperature and pressure, the product holds its shape. (Bailey, Tr. at 188). Second, the product must be “polypropylene, consisting essentially of recurring propylene units.” The claim of the ’851 patent does not require that the composition be composed entirely of recurring propylene units but rather that it consist “essentially of recurring propylene units.” A small degree of irregularity is permissible so long as it does not affect the basic and novel properties of the composition. (Bailey, Tr. at 188-90). Third, the composition must have “a substantial crystalline polypropylene content.” When propylene polymerizes in such a way that the structure of the resulting polymer is linear with all the methyl groups located on the same side of the polymer chain (sometimes referred to as an “isotactic” structure), the polypropylene molecules are able to crystallize. This means that the polymer molecules can pack together in a tight, regular array known as a crystal lattice. (Bailey, Tr. at 172-77; PTX 15, 116). The crystallinity is “substantial” when it is present in an amount sufficient to influence the properties of the polymer. (Bailey, Tr. at 190-91). The crystal lattice ultimately has a very profound effect upon the physical properties of the polymer composition. The strong attractive forces in the lattice render the polymer insoluble in solvents which would otherwise dissolve the polymer if it were not crystalline. (Bailey, Tr. at 211-18; PTX 29). Crystallinity also is manifested if the material exhibits a melting point, which is the temperature at which the polymer changes from the solid, crystalline state to a molten state. (Bailey, Tr. at 218). In general, the density of crystalline polypropylene will be higher than that of the amorphous or non-crystalline form because of the close packing of the polymer molecules in the crystal lattice. For example, the density of crystalline polypropylene is in the range of about 0.90 grams per cubic centimeter (g/cc) while the density of amorphous polypropylene is about 0.85 g/cc. (Bailey, Tr. at 220-22; PTX 35). Crystallinity also imparts several important mechanical properties to polypropylene. As Professor Fred W. Billmeyer, Jr., one of Defendants’ experts, noted in his book Textbook of Polymer Science: Polypropylene is the lightest major plastic, with a density of 0.905. Its high crystallinity imparts to it high tensile strength, stiffness and hardness. The resulting high strength-to-weight ratio is an advantage in many applications. Finished articles usually have good gloss and high resistance to marring. The high melting point of polypropylene allows well-molded parts to be sterilized, and the polymer retains high tensile strength at elevated temperatures. (PTX 1858 at 368; Bailey, Tr. at 2329-32). In fact, Defendants’ witnesses unanimously agreed that crystallinity is a key property of the polypropylenes of commerce and is at least in part responsible for the wide use of polypropylene in many demanding commercial applications. (Powers, Tr. at 1942; Porter, Tr. at 1120-21, 1125-28, 1143). Prior to the discovery of crystalline polypropylene, the only known polypropylenes were those with very irregular structures which prevented the polymer molecules from crystallizing. The structure of these non-crystalline, amorphous polypropylenes was irregular in two respects. First, the methyl groups were randomly oriented with respect to the polymer chain. Second, the backbone of the polymer molecules was not linear but “tree-branched.” (Bailey, Tr. at 191-210; PTX 1703, 1704, 1705, 1706, 1808, 135, 136, 1765; Mark, Tr. at 521). The amorphous polypropylenes accordingly had none of the beneficial properties of the crystalline form of polypropylene. (Bailey, Tr. at 211-22). As Professor Billmeyer stated: “[t]he crystallizability of isotactic polypropylene makes it the sole form with properties of commercial interest.” (PTX 1858 at 368). In sum, the '851 patent claims the discovery of a wholly new form of polypropylene with a structure quite different from the prior art polypropylenes. (Bailey, Tr. at 2332). III. INVALIDITY A. Anticipation In order to prove anticipation of a patent claim under 35 U.S.C. § 102, a party must show, inter alia, identity of invention. Tyler Refrigeration v. Kysor Indus. Corp., 777 F.2d 687, 689 (Fed.Cir.1985) (quoting Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 771 (Fed.Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984)); Schering Corp. v. Precision-Cosmet Co. Inc., 614 F.Supp. 1368, 1373 (D.Del.1985). Identity of invention is a question of fact. Kalman, 713 F.2d at 771 (noting Coupe v. Royer, 155 U.S. 565, 578-79, 15 S.Ct. 199, 204-05, 39 L.Ed. 263 (1895)); see Tyler Refrigeration, 777 F.2d at 689; Lindemann Maschinen-fabrik v. Am. Hoist and Derrick, 730 F.2d 1452, 1458 (Fed.Cir.1984); Schering Corp., 614 F.Supp. at 1373. As the Federal Circuit has noted: [O]ne who seeks such a finding must show that each element of the claim in issue is found, either expressly described, or under principles of inherency, in a single prior art reference, or that the claimed invention was previously known or embodied in a single prior art device or practice. Kalman, 713 F.2d at 771, quoted in Schering Corp., 614 F.Supp. at 1378; see Great Northern Corp. v. Davis Core & Pad Co., Inc., 782 F.2d 159, 165 (Fed.Cir.1986); Tyler Refrigeration, 777 F.2d at 689; American Hosp. Supply Corp. v. Travenol Lab., 745 F.2d 1, 6 (Fed.Cir.1984); RCA Corp. v. Applied Digital Data Systems, Inc., 730 F.2d 1440, 1444 (Fed.Cir.1984). The prior art reference must be enabling, i.e., it “must contain within its four comers a sufficient description to enable one to practice the invention without experimentation or inventive skills.” Schering Corp., 614 F.Supp. at 1373; see also Akzo N.V. v. U.S. Intern. Trade Com'n, 808 F.2d 1471, 1479 (Fed.Cir.1986). Of course, the prior art need not state the elements of the claim in identical language. See, e.g., Akzo, 808 F.2d at 1479 (noting Application of Brown, 51 CCPA 1254, 329 F.2d 1006, 1011 (1964)). In short, “[a]nticipation and infringement are reciprocals_ [A] structure in a prior art reference which would infringe the patent if later in time, anticipates it if earlier in time.” 1 P. Rosenberg, Patent Law Fundamentals § 7.04 (2d ed. 1986) (noting Knapp v. Morss, 150 U.S. 221, 228, 14 S.Ct. 81, 84, 37 L.Ed. 1059 (1893)). Under section 102(e), the Court must identify the elements of the claim of the ’851 patent, determine their meaning in light of the specification and prosecution history and identify corresponding ele-mente described in the alleged prior art patents. (See discussion infra under Infringement.) Lindemann, 730 F.2d at 1458. In other words, the inquiry for the Court is whether the ’851 claim “reads on” the prior invention. In engaging in this analysis, the question is not the precise scope of the claim in the prior patent, but “what is disclosed in the specification and made known to the world.” Minerals Separation v. Magma Copper Co., 280 U.S. 400, 402, 50 S.Ct. 185, 185, 74 L.Ed. 511 (1930) (noting Milburn Co. v. Davis-Bournonville Co., 270 U.S. 390, 46 S.Ct. 324, 70 L.Ed. 651 (1926)). Anticipation relates to the novelty and identity of invention. Because of the strict requirement that all elements of the claimed invention must be present within a single prior art reference, the requisite degree of identity is rarely found and anticipation is deemed a “technical defense.” See Mannesmann Demag v. Engineered Metal Products, 605 F.Supp. 1362, 1368 (D.Del.1985), aff'd, 793 F.2d 1279 (Fed.Cir.1986). 1. The Natta ’300 Patent .[3] Defendants argue that the Nat-ta ’300 patent (DTX 71), which issued on an application filed June 8, 1955, anticipates the invention claimed in Phillips’ 1956 application and, thus, invalidates the '851 patent under 35 U.S.C. § 102(e). The '300 patent was originally issued to Guilio Natta, Piero Pino and Giorgio Mazzanti and was ultimately assigned to Montecatini, an Italian corporation. (DTX 71). The patent is entitled “Isotactic Polypropylene.” (DTX 71). Phillips does not seriously contest that the ’300 patent in fact discloses the invention of the ’851 patent. Instead, Phillips argues that the effective date of its invention is not the filing date of its 1956 application but rather the date of its 1953 application. As such, Phillips argues that the '300 patent cannot be considered prior art as to Phillips’ invention. In support of its contentions, Phillips relies on 35 U.S.C. § 120. Section 120 provides that a patent applicant is entitled to rely on a previously filed application as the effective date of its invention if that earlier application meets the disclosure requirements set forth in the first paragraph of 35 U.S.C. § 112. Section 112 in turn requires that a patent application (1) contain a written description of the invention, (2) in such terms as to enable a person skilled in the art to make and use the invention. The description and enablement requirements of section 112 are separate and distinct. In re Wilder, 736 F.2d 1516, 1520 (Fed.Cir.1984). So long as Phillips' 1953 application complied with each of the disclosure requirements of section 112, Phillips is entitled to rely on the filing date of its 1953 application as the effective date of its invention and the ’300 patent, therefore, would not be considered prior art. See Paperless Accounting v. Bay Area Rapid Transit Sys., 804 F.2d 659, 664 (Fed.Cir.1986). Phillips contends that both Judge Wright and the Third Circuit ruled in the section 146 action that Phillips’ 1953 application adequately supported the count in interference, now the claim of the ’851 patent, and thus satisfied the requirements of section 112. Phillips thus argues that it is Defendants’ burden to establish by new, clear and convincing evidence that the 1953 application falls short of the requirements of section 112. Phillips further asserts that Defendants have failed to meet that burden. a. The Section U6 Proceeding One of the central issues before Judge Wright was whether Phillips’ 1953 application constituted a “constructive reduction to practice” for the purposes of establishing priority. Standard Oil, 494 F.Supp. at 420-35. The resolution of that issue was based squarely on whether the 1953 application satisfied the requirements of section 112. As Judge Wright explained, “[a] constructive reduction to practice is established as of the date that an inventor files an application complying with 35 U.S.C. § 112.” Id. at 383. Thus, in deciding whether Phillips’ 1953 application constituted a constructive reduction to practice, Judge Wright was required to determine whether the application complied with the provisions of section 112. Based upon the evidence before him, Judge Wright concluded that the 1953 application met both the description and the enablement requirements of section 112. In addressing the sufficiency of Phillips’ 1953 application, Judge Wright first noted that the application did not describe the invention in the precise language of the count. Standard Oil, 494 F.Supp. at 420. Indeed, Phillips conceded as much. Id. Nonetheless, Judge Wright recognized that in order to comply with section 112, an application need not describe the invention in haec verba. Id. at 383-84. Instead, an application is sufficient under section 112 if the description of the invention, though not set forth in the precise language of the count, is the “legal equivalent” of that language. Id. at 384. Based on the evidence before him, Judge Wright concluded that the description contained in the 1953 application was in fact the legal equivalent of the language of the count and that it therefore satisfied the written description requirement of section 112. Id. at 420-432. Judge Wright also determined that the disclosure contained in Phillips’ 1953 application would enable one skilled in the art to practice the invention. Id. at 432-35. Thus, Judge Wright concluded that the 1953 application satisfied both the written description and enablement requirements of section 112. Nonetheless, Defendants argue that the issue before Judge Wright was different from that presented here. Citing such authorities as Swain v. Crittendon, 51 CCPA 1459, 332 F.2d 820 (1964) and Application of Kyrides, 159 F.2d 1019 (C.C.P.A.1947), they argue that in finding that Phillips’ 1953 application constituted a constructive reduction to practice, Judge Wright decided only that Phillips was the first party to disclose a species falling within the broader genus of the interference count. They contend that Judge Wright did not hold that Phillips was entitled to a patent on the broad count in interference. Defendants are correct in their assertion that merely winning an interference does not necessarily entitle the winning party to a patent, the scope of which is commensurate with that of the count in interference. Swain, 332 F.2d at 824; Kyrides, 159 F.2d at 1021. Judge Wright, however, did not determine priority alone. Instead, following the mandate of Hill v. Wooster, 132 U.S. 693, 10 S.Ct. 228, 33 L.Ed. 502 (1890), Judge Wright determined that he was required to decide whether the count in interference was patentable to Phillips. Standard Oil, 494 F.Supp. at 430 n. 637, 454-56. As Judge Wright explained: [T]his case involves patentability issues ... one of which concerns the breadth of Phillips’ 1953 specification and claims. 35 U.S.C. § 112. In particular, Phillips may not be entitled to patent the full range of crystalline polypropylene unless its 1953 application specified all of them. The Court therefore must eventually address the issue of the breadth of Phillips’ specification. Id. at 430 n. 637 (emphasis added). Judge Wright went on to conclude that the product of the count was novel, non-obvious and useful and was patentable to Phillips. Id. at 454-56, 461. The Court thus concludes that Judge Wright held that Phillips’ 1953 application fully satisfied the requirements of section 112. On appeal, the Third Circuit affirmed Judge Wright’s holding that Phillips’ 1953 application complied with the requirements of section 112. Standard Oil Co. (Indiana) v. Montedison, S.P.A., 664 F.2d 356 (3d Cir.1981). Indeed, while the Third Circuit believed it appropriate to review Judge Wright’s decision under a “clearly erroneous” standard, the Court nonetheless independently reviewed the record and concluded that even under a broader standard of review, Judge Wright’s decision should be affirmed. Id. at 362. Thus, the Third Circuit independently determined that the 1953 application fully satisfied the requirements of section 112. b. The Evidence at Trial Phillips having previously established that its 1953 application fully satisfied the requirements of section 112, it is Defendants’ burden to demonstrate by new, clear and convincing evidence that the application was inadequate. Defendants have failed to meet that burden. 1) Written Description As recognized by both the District Court and the Third Circuit, an application need not describe its invention in haec verba in order to comply with the description requirement of section 112. Standard Oil, 664 F.2d at 364; 494 F.Supp. at 383-84. See also In re Wilder, 736 F.2d 1516, 1520 (Fed.Cir.1984); In re Kaslow, 707 F.2d 1366, 1375 (Fed.Cir.1983); Flynn v. Eardley, 479 F.2d 1393, 1395 (C.C.P.A. 1973); Application of Lukach, 58 CCPA 1233, 442 F.2d 967, 969 (1971). Instead, the relevant inquiry is “whether the disclosure of the application relied upon ‘reasonably conveys to the artisan that the inventor had possession at that time of the later claimed subject matter.’ ” Ralston Purina Co. v. Far-Mar-Co., Inc., 772 F.2d 1570, 1575 (Fed.Cir.1985) (quoting In re Kaslow, 707 F.2d at 1375). See also Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed.Cir.1986); Shatterproof Glass Corp. v. Libbey-Owens Ford Co., 758 F.2d 613, 624 (Fed.Cir. 1985); Application of Wertheim, 541 F.2d 257, 262 (C.C.P.A.1976). Applying that standard to the instant case, the Court finds that Defendants have failed to establish that Phillips’ 1953 application did not satisfy the written description requirement of section 112. In its 1953 application, Phillips described its invention as follows: The solid polymer fraction is insoluble in pentane at room temperature. The solid material has a melting point in the range of 240 to 300°F, a density in the range of 0.90 to 0.95, an intrinsic viscosity in the range of 0.2 to 1.0, and a weight average molecular weight range in the range of approximately 5,000 to 20,000. (DTX 15 at 30-31). The properties described would indicate to one skilled in the art that Phillips was in possession of a new, crystalline form of polypropylene. (Bailey, Tr. at 211-23). Defendants do not dispute that the 1953 application described crystalline polypropylene. Indeed, they concede that the properties reported indicate that “the polypropylene has substantial crystallinity.” Moreover, Defendants apparently do not contend that the application failed to describe a product satisfying each of the remaining limitations of the claim (i.e., a “normally solid” polymer which consists “essentially of recurring propylene units”). In fact, at least one of Defendants’ own witnesses admitted that the 1953 application describes a product satisfying each limitation of the '861 claim. (Porter, TV. at 1156-62). Instead, Defendants argue that the 1953 application did not describe the entire class of compounds falling within the claim of the '851 patent. In particular, they focus on the range of intrinsic viscosities set forth in the application. Defendants assert that in specifying a range of intrinsic vis-cosities of 0.2 to 1.0, the application describes only low molecular weight materials which are useless as plastics. Defendants argue that the application does not describe the high molecular weight, tough commercial polypropylenes manufactured by Defendants, all of which have intrinsic viscosities above 1.0. Defendants have misconstrued the inquiry under section 112. The focus of that inquiry is whether the claimed subject matter is adequately described. See, e.g., Ralston Purina, 772 F.2d at 1575; In re Wilder, 736 F.2d at 1520. If the ’851 claim contained a limitation regarding intrinsic viscosity or molecular weight, Defendants’ arguments would have merit. Yet, the ’851 claim contains no such limitation. The fact that the 1953 application specified a range of intrinsic viscosities of only 0.2 to 1.0 is, therefore, immaterial to the present inquiry. While Defendants rely on such authorities as Application of Wertheim, 541 F.2d 257 and Application of Lukach, 442 F.2d 967, in support of their position, that reliance is misplaced. The issue in those cases was whether the application in question contained adequate support for limitations expressly included in the claim. In Application of Wertheim, 541 F.2d 257, for example, the patent application failed to satisfy the express limitation of the claim that the solid content be “at least 35%.” Similarly, in Application of Lukach, 442 F.2d 967, the application failed to describe a product having a weight-average molecular weight/number-average molecular weight ratio of “at least 2.0 and less than about 3.0”, an express limitation of the claim. In contrast to the cases cited by Defendants, there is no limitation in the ’851 claim regarding the intrinsic viscosity or molecular weight of the polymer. Defendants’ authorities are therefore inapplicable. In sum, Defendants have pointed to absolutely no evidence, let alone clear and convincing evidence different from that considered by Judge Wright and the Third Circuit, that Phillips’ 1953 application failed to describe the claimed invention of the ’851 patent. The Court finds that Defendants have failed to establish that Phillips’ 1953 application did not satisfy the written description requirement of section 112. 2) Enablement In order to satisfy the enablement requirement of section 112, a patent application must contain a description which enables one skilled in the art to make and use the claimed invention. See, e.g., DeGeorge v. Bernier, 768 F.2d 1318, 1323 (Fed.Cir. 1985); Atlas Powder Co. v. E.I. Du Pont de Nemours, 750 F.2d 1569, 1576 (Fed.Cir. 1984); Lindemann, 730 F.2d at 1463. That some experimentation may be necessary in order to practice the invention does not render an application non-enabling so long as the amount of experimentation is not unduly extensive. See, e.g., Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1384 (Fed.Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1606, 94 L.Ed.2d 792 (1987); DeGeorge, 768 F.2d at 1323; Atlas Powder, 750 F.2d at 1576. Moreover, because an application speaks to those skilled in the art, it need not set forth every minute detail regarding the invention. DeGeorge, 768 F.2d at 1323. Nor need an application disclose that which is already well known in the art. See, e.g., Paperless Accounting, 804 F.2d at 664; Hybritech, 802 F.2d at 1384 ("[A] patent need not teach, and preferably omits, what is well known in the art.”); Lindemann, 730 F.2d at 1463. Whether an application is sufficiently enabling is to be determined as of its filing date rather than as of the date of trial. Hybritech, 802 F.2d at 1384; W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1556 (Fed.Cir.1983), cert. denied, 469 U.S. 851, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984); White Consol Industries v. Vega Servo-Control, 713 F.2d 788, 791 (Fed.Cir.1983). Thus, post-filing developments in the art are irrelevant to the enablement inquiry. W.L. Gore, 721 F.2d at 1556. The critical inquiry is whether, at the time the application was filed, the application contained a description sufficient to enable one skilled in the art to practice the invention. Defendants do not dispute that the 1953 application enables one skilled in the art to make (1) normally solid polypropylene, (2) consisting essentially of recurring propylene units, (3) having a substantial crystalline polypropylene content. Indeed, at least two of Defendants’ own witnesses conceded that the application enables one to make a product satisfying each limitation of the claim. (Long, Tr. at 816; Porter, Tr. at 1156-62). Moreover, the results of certain reproduction experiments introduced by Defendants themselves demonstrate that Phillips’ 1953 application enables the production of polypropylene of the ’851 claim. In 1985, Dr. Long, acting on behalf of Defendants, prepared samples of polypropylene in accordance with the 1953 application. (Long, Tr. at 595-605). He admittedly followed the general teachings of the 1953 application. Id . Each of the resulting samples, A, B and C, satisfied the limitations of the ’851 claim. (Wiles, Tr. at 1978-85; PTX 1860-62). In attacking Phillips’ 1953 disclosure, Defendants again focus on the range of intrinsic viscosities set forth in the application. Once again, they contend that the 1953 application does not enable one to produce polypropylene having an intrinsic viscosity greater than 1.0. They argue, therefore, that the 1953 application does not enable one to produce the high molecular weight, tough polypropylenes of commerce. Defendants have again missed the point of the inquiry under section 112. As the Federal Circuit has explained, it is the claimed invention for which enablement is required. W.L. Gore, 721 F.2d at 1557; see also DeGeorge, 768 F.2d at 1323. The applicant is not required to include in his application support for matters not set forth in the claim. DeGeorge, 768 F.2d at 1324. As explained supra, there is no limitation in the '851 claim regarding intrinsic viscosity or molecular weight. Even assuming arguendo that the 1953 application did not enable one skilled in the art to produce polypropylene having an intrinsic viscosity greater than 1.0, Phillips’ disclosure would not be rendered non-enabling. Thus, with respect to both the written description and enablement requirements, Defendants have misconstrued the inquiry under section 112. They have sought to read into the '851 claim a molecular weight/intrinsic viscosity limitation which simply is not there. Nearly thirty-five years after Phillips' application was filed, they fault Phillips for not describing a polypropylene of high molecular weight/intrinsic viscosity, a property which we now know to be extremely important. A patent applicant is not required, however, to predict every possible variation, improvement or commercial embodiment of his invention. See SRI Intern, v. Matsushita Elec. Corp. of America, 775 F.2d 1107, 1121 (Fed.Cir.1985); Hughes Aircraft Co. v. United States, 717 F.2d 1351, 1362 (Fed. Cir.1983). In seeking to impose such a requirement on Phillips, Defendants have wholly failed to carry their burden in establishing the insufficiency of Phillips’ 1953 application under section 112. Phillips, therefore, may rely on the 1953 application as the effective date of its invention. The '300 patent cannot be considered prior art. 2. The Zletz ’257 Patent Defendants next contend that the ’851 patent is invalid in view of the alleged prior art Zletz ’257 patent issued in October, 1954, on application filed in April, 1951, and assigned to the Standard Oil Company (Indiana) (“Standard”). Defendants argue that the '257 patent is prior art effective to invalidate the ’851 patent under 35 U.S.C. §§ 102(e). The ’851 patent is, of course, entitled to the statutorily-mandated presumption of validity. See 35 U.S.C. § 282. The burden of persuasion rests permanently with the party asserting invalidity. See, e.g., Atlas Powder, 750 F.2d at 1573 (noting American Hoist & Derrick Co. v. Sowa & Sons, 725 F.2d 1350, 1358-60 (Fed.Cir.), cert. denied, 469 U.S. 821, 105 S.Ct. 95, 83 L.Ed.2d 41 (1984). That burden is met only with proof of facts supported by clear and convincing evidence. Id. Further, as Phillips notes, the ’257 patent was before the Patent Examiner during the prosecution of the ’851 patent. (See DTX 13A, Papers No. 26, 28.) As such, Defendants have an added burden. “When no prior art other than that which was considered by the PTO examiner is relied upon by the attacker, he has the added burden of overcoming the deference that is due a qualified administrative agency presumed to have properly done its job.” American Hoist, 725 F.2d at 1359. As the Federal Circuit has noted, the introduction of prior art not before the PTO may facilitate the attacker’s ability to meet his burden of proof but the burden of persuasion remains on the challenger and the “clear and convincing” standard does not vary. Atlas Powder, 750 F.2d at 1573 (noting Jervis B. Webb Co. v. Southern Systems, Inc., 742 F.2d 1388, 1392 & n. 4 (Fed.Cir.1984); Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534 (Fed.Cir. 1983)); RCA Corp, 730 F.2d at 1444. The ’257 patent, entitled “Ethylene Polymerization with Conditioned Alumina-Molybdena Catalysts” deals predominantly with the polymerization of ethylene (see Bailey, Tr. at 2074) although it does contain two express references to the polymerization of propylene. (Id.) The patent describes and claims the polymerization of ethylene, propylene and mixtures of ethylene and propylene at relatively low temperatures and pressures to form polymerization products from which a solid, high molecular weight fraction can be recovered. (See DTX 62, claim 1.) “[T]he inventive process comprises the conversion of ethylene to high molecular weight normally solid polymers by contact with a catalyst comprising essentially a reduced molybdenum oxide combined with an active adsorptive alumina of the type of gamma-alumina.” (DTX 62, col. 1, line 42 to col. 2, line 1; see id., col. 3, lines 9-13 (“Propylene alone has been polymerized by the employment of the catalysts ... in low yield to extremely high molecular weight, rubber-like polymers in addition to oils and grease-like solids.”)) The patent specifies that the inventive process is effected at temperatures between 75°C and about 325°C, preferably between 130°C and 260°C. (DTX 62, col. 2, lines 1-3). Similarly, pressures between roughly atmospheric and 5000 p.s.i.g. (pounds per square inch per gram) or higher should be used, although the preferred pressure is between 200 p.s.i.g. and 2000 p.s.i.g., or about 1000 p.s.i.g. (Id.) Aromatic hydrocarbons, such as benzene, toluene or xylene, are used as liquid reaction mediums and solvents. (Id., lines 14-19). The liquid medium favorably influences both the rate of the ethylene conversion and the rate of removal of the solid materials produced by the catalytic conversion which tend to accumulate on and within the catalyst. (Id., lines 7-16). Finally, the patent teaches that the “inventive process is characterized by extreme flexibility both as regards operating conditions and as regards the products producible thereby. Thus, the present process can be effected over extremely broad ranges of temperature and pressure.” (Id., lines 33-38). The ’257 patent’s specifications contain only two references to the polymerization of propylene alone. (Bailey Tr. at 2074). Dr. Bailey testified that the descriptions of propylene polymerizations were “very similar to what was in the prior art for the propylene polymers that were produced by the acid catalyst[s]”, i.e., rubber-like, soluble, noncrystalline polymers. (Bailey, Tr. at 2078). The prior art referred to by Bailey consists of an article by Fontana (PTX 1706), the Hersberger patent (U.S. Letters Patent No. 2,474,670 issued June 28, 1949) (PTX 1704), and the Thomas patent, (U.S. Letters Patent No. 2,387,784, issued October 30, 1945) (PTX 1703). There are two catalysts employed in the '257 patent: either molybdenum oxide (MoOg) supported on alumina or cobalt molybdate (CoO + M0O3) supported on alumina. (DTX 62, col. 3, lines 19-34, col. 4, lines 23-34). Only one example in the '257 patent, Run 15, employs the cobalt molyb-date catalyst. That Run was directed to the homopolymerization of ethylene. (DTX 62, col. 13, 16, lines 58-65). All of the other examples employ molybdena-oxide without cobalt. (See Bailey, Tr. at 2084-86). The patent describes this catalyst as “extremely active” and its product as a “tough, high molecular weight polyethylene resin.” (DTX 62, col. 16, lines 62-65; accord Carmody, Tr. at 1202-03). A companion application to the ’257 patent was filed on the same day that the application which led to the ’257 patent was filed. The claims in the ’257 patent directed to the polymerization of propylene were originally contained in that companion application. After the Patent Office dictated that a clearer line of division be drawn between the two patent applications, the companion application was abandoned and the subject matter was transferred to what eventually became the '257 patent. There is no dispute that the products of the ’257 processes are normally solid. It is also undisputed that the '257 patent does not mention the word “polypropylene”, does not specifically refer to a product consisting of recurring propylene units, and does not directly note the crystallinity of the products produced by its processes. a. Express Disclosure Defendants argue that when the ’257 patent application was filed in April, 1951, the state of the polymer art was such that the polymerized propylene product described in the patent was a new material. Conversely, Phillips contends that the product described is more like the prior art amorphous polypropylenes as they were known in 1951. All parties are in agreement that the state of the polymer art prior to the ’257 application was a low molecular weight, tree-branched, amorphous polypropylene which exhibited no crystallinity. In support of their argument, Defendants contend that the reference in the ’257 patent to a melting or softening point when describing the “high molecular weight solid fraction” discloses that the fraction is indeed crystalline. Specifically, the patent teaches that “[i]t is often desirable to select a polymerization temperature which is at least equal to the melting or softening point of the solid polymerization product.” (DTX 62, col. 6, lines 67-70; see id., col. 11, lines 35-44). Because a melting point is a characteristic of crystalline structures, Defendants argue that the ’257 patent did in fact disclose, to one knowledgeable in the art, that the products produced by its methods were indeed crystalline, i.e., exhibited crystallinity. (See Grubbs, Tr. at 1748; accord Bailey, Tr. at 310, 429-30). Phillips, of course, disputes this reference as an indicia of crystallinity. As Phillips notes, the ’257 patent does not disclose other possible indicia of crystallinity, such as density, solubility characteristics, infrared spectra or x-ray measurements that might have led one skilled in the art to conclude that the patentee had discovered what would have been, in 1951, a wholly new and different form of polypropylene. (See Bailey, Tr. at 2077). Phillips further asserts, as Dr. Bailey testified, that the reference to melting point refers to the patent’s principal product, namely polyethylene, long known by 1951 to exhibit crys-tallinity and to have a distinct melting point. (Bailey, Tr. at 2429-31). Read in the context of the specifications and claims, there is little doubt that the reference to melting point does, in fact, refer to the polymerization product of an ethylene feed. Indeed, in the same column which contains the reference to melting point, the patent teaches that “[t]he charging stock to the present polymerization process preferably comprises essentially ethylene_ When the charging stock contains propylene as well as ethylene, both these olefins contribute to the production of resinous high molecular weight products.” (DTX 62, col. 6, lines 32-40) (emphasis added). The reference to “melting point”, when read in this context, contemplates polyethylene crystallinity. As such, given the dearth of other indicia of crystal-linity and the reference to polyethylene crystallinity, I find that the ’257 patent does not expressly teach polypropylene crystallinity. Further, Defendants failed to point to any portion of the ’257 patent which expressly discloses that any crystalline polypropylene formed by the processes consists essentially of recurring propylene units. b. Inherent Disclosure The next issue for the Court is whether each of the elements of the claim of the ’851 patent is found in the ’257 patent under “principles of inherency.” In this regard, Defendants rely on several experimental runs completed in 1950 and 1953 in an attempt to show that the '851 patent does indeed read on the '257 patent. In mid-1950, Alex Zletz determined that molybdenum oxide catalysts, useful in certain refining operations, were also effective polymerization catalysts for ethylene and propylene. (See Standard Oil, 494 F.Supp. at 398; DTX 169; see Peters, Tr. at 1299-1300). Donald Carmody, an associate of Zletz at Standard’s Whiting, Indiana Exploratory Research Division, who was also involved in the polymerization of olefins, conducted a series of experiments using the more active reduced cobalt molybdate on alumina catalyst with both ethylene and propylene. (See Standard Oil, 494 F.Supp. at 398; DTX 175-76). Carmody undertook experiments involving propylene on September 28 and 29, 1950, (see Standard Oil, 494 F.Supp. at 398) and Defendants rely on the products of these two runs, EP-34 and EP-35, as evidence that the ’257 patent inherently anticipates the ’851 patent. The parties agree that Carmody’s EP-34 and EP-35 runs were conducted in accordance with the disclosure of the ’257 patent. (See Bailey, Tr. at 2126-42; Carmody, Tr. at 1230-32; Grubbs, Tr. at 1750, 1762-64). The recovered solid products from Runs EP-34 and EP-35 were submitted for infrared analysis. In infrared analysis, a sample of a product is subjected to infrared radiation at all wavelengths. Some of the wavelengths are absorbed by the sample. A detection device then reads those infrared wavelengths that are transmitted without being absorbed by the sample. (Wiles, Tr. at 379-84; see generally PTX 1796 (schematic)). The spectrometer (or spectrophotometer) then prints a spectrum or “trace” of the sample’s chemical composition with wavelength recorded on the horizontal axis and percent transmission (or absorbence, i.e., optical density) on the vertical axis. (Wiles, Tr. at 381-82; see PTX 1791). Molecules vibrate when they are exposed to radiation and they absorb some of that radiation. The molecular structure of the sample examined can be determined by reading the infrared trace to determine what absorption bands are present. Particular groups of atoms absorb certain wavelengths of radiation and, as such, if a particular absorption band is present in the trace, that chemical structure is present in the sample. (Wiles, Tr. at 380-81). Likewise, if the characteristic absorption band for a given chemical structure is not present, chemists deduce that that chemical structure is not present. (Wiles, Tr. at 381; see Standard Oil, 494 F.Supp. at 377-78). Because both positive and negative inferences can be drawn from a trace, infrared analysis, akin to a chemical fingerprint, provides a dramatic identification tool for the chemist. (Wiles, Tr. at 383; Painter, Tr. at 1532-33). It is undisputed that the characteristic absorption bands for crystalline polypropylene appear in the ranges near 7.25, 8.6, 10.03, 10.27 and 11.85 microns. (Wiles, Tr. at 393-96; PTX 1785; see Standard Oil, 494 F.Supp. at 378). It is likewise undisputed that crystalline polypropylene does not absorb radiation at 13.7 or 13.9 microns. (See Standard Oil, 494 F.Supp. at 378; cf. Wiles, Tr. at 405, 406-09; Painter, Tr. at 1538). The absorption band at 7.25 microns indicates the presence of methyl groups (CH3). (Wiles, Tr. at 394; Painter, Tr. at 1535). The absorption band at 8.6 microns and the band at 10.27 microns are indicative of isolated methyl groups, i.e., the methyl group is not attached to the adjacent carbon atoms. (Wiles, Tr. at 394-96). The absorption bands at 10.03 and 11.85 microns are referred to as “helicity” bands because they indicate the presence of a helical configuration in the sample. (Wiles, Tr. at 395-97). Both the 10.03 and 11.85 bands are thus sensitive to and indicative of crystallinity. (See Wiles, Tr. at 395-96 and Bailey, Tr. at 179-83; cf. Painter, Tr. at 1535-36). In the section 146 action, the Court found that the products of both Run EP-34 and Run EP-35, were normally solid. Standard Oil, 494 F.Supp. at 399-400. Phillips does not presently dispute that finding. When he recorded his experimental data and observations, Carmody himself noted that the products of the Runs were solid. For EP-34, Carmody described the product as “solid” and “rubbery, non-tacky”, (DTX 175, p. 44; Bailey, Tr. at 2132; Standard Oil, 494 F.Supp. at 399-400), and he described the product of EP-35 as “solid” and “somewhat sticky to touch.” (DTX 175, p. 45; Bailey, Tr. at 2136; Standard Oil, 494 F.Supp. at 400). There is, however, substantial disagreement about the remaining two elements of the claim. On the record before him, Judge Wright found that the products of the two Runs did not consist essentially of recurring propylene units. 494 F.Supp. at 402. Judge Wright also found, based upon the uncontradicted testimony of Doty, that EP-34 and EP-35 did produce products which had a substantial crystalline content. Id. at 403. On the present record, the dispute centers on the presence or absence of recurring propylene units and whether the solid polypropylene component consists “essentially” of those units. To be sure, the parties frequently state their arguments in general terms of whether there is a substantial crystalline polypropylene content but the proofs are directed at the issue of whether recurring units are present. To summarize, Phillips argues that the products of EP-34 and EP-35 cannot consist essentially of recurring propylene units because they are, in point of fact, copolymers of propylene and ethylene with such a substantial ethylene content, i.e., methylene sequences, so as to preclude a determination that they consist essentially of recurring propylene units. Conversely, the lynchpin of Defendants' reliance upon the '257 patent is their argument that the solid polymer fractions recovered in Runs EP-34 and EP-35 were mixtures of crystalline polypropylene and random ethylene/propylene copolymer. {See Grubbs, Tr. at 1764). The argument has three premises: (1) there is a substantial isotactic polypropylene component in each of the solid fractions; (2) there is likewise a substantial ethylene content in each of the two fractions; and (3) the methodology employed in isolating the solid fraction as well as the literature indicate that both isotactic polypropylene and ethylene in such large amounts simply cannot coexist in a copolymer. In other words, because of the presence of both of these two chemical structures, the solid fraction cannot be an ethylene/propylene copolymer and hence must be a mixture of crystalline polypropylene and ethylene/propylene co-polymer. If it is indeed a mixture, the polypropylene, according to Defendants, would consist essentially of recurring propylene units and the ethylene would be in a separate copolymer. The Court will consider Defendants’ argument as to both EP-34 and EP-35. 1) EP-34 The solid fraction from EP-34 was submitted by Carmody for infrared analysis (see DTX 213) and a partial spectrum of a sample was obtained by Dr. Raymond Hopkins of Standard in 1950. (DTX 217). There is no dispute that the trace (DTX 217) exhibits absorptions at about 8.63,10.-05, 10.29 and 11.85 microns, all characteristic of crystalline polypropylene. (Painter, Tr. at 1537-38; DTX 217). There is likewise no dispute that the trace also exhibits absorptions in the 13.73 and 13.89 micron ranges associated with the presence of recurring methylene sequences, i.e., ethylene content. (Painter, Tr. at 1538; DTX 217). Dr. Paul Painter, Defendants’ expert in infrared spectrography, testified that based on his interpretation of the spectrum for EP-34, his calculation of the percent ethylene content contained in the solid fraction, and his review of the steps taken by Car-mody to prepare and isolate the solid fraction, the solid fraction was indeed a mixture of crystalline isotactic polypropylene and ethylene/propylene copolymer. (Painter, Tr. at 1546-51). Painter did concede that based upon spectrum alone, one cannot conclude that the solid product is, in fact, a mixture as contrasted with a homogeneous “block” copolymer. (Painter, Tr. at 2734-35, 2738, 2742-43). a) Percent Crystalline Polypropylene Painter testified that the solid polymer fraction of EP-34 contained between 30 and 35% isotactic polypropylene. (Painter, Tr. at 1560,1563). In reaching that conclusion, Painter relied on papers by Luongo (DTX 452) and Sibelia, et al. (DTX 507). To generalize, both papers teach that the percent of isotactic polypropylene (or the percent atactic polypropylene, which when subtracted from 100%, leaves percent iso-tactic) can be obtained by determining the ratio between the 10.27 and 10.03 bands. The closer the ratio to 1.0, the larger the percentage of crystalline polypropylene present in the sample. In Dr. Painter’s opinion, there was a “substantial amount” of polypropylene crystallinity in EP-34 which is evident from “just eyeballing the ratio of the 10.05 and 10.29 micron bands.” (Painter, Tr. at 1563). Phillips’ infrared expert, Dr. Wiles, was of the opinion that the ratio of the 10.05 to 10.29 bands was “considerably less than one.” (Wiles, Tr. at 1948). As such, Dr. Wiles concluded that the trace evidenced a copolymer of propylene and ethylene which is “very rich” in ethylene. (Id.) Further, according to Wiles, even if there were only a small amount of crystalline polypropylene present, the ratio of the 10.05 to the 10.29 band would still be at or approaching 1.0. (Wiles, Tr. at 1946). The paper of Luongo tends to support Painter’s conclusion that in mixtures of atactic and isotactic polypropylene, the ratio will be much less than 1.0 when there is a substantial atactic component. Although he disagreed with Painter, Wiles never advanced an opinion regarding the percentage of crystalline polypropylene present in EP-34. He merely disagreed that the spectrum evidenced a mixture and was of the opinion that the spectrum was indicative of a random copolymer. Wiles noted that in EP-34 it was “entirely feasible” that sequences of propylene units long enough to show helicity, i.e., to show an absorption at 10.02 microns, were present, (Wiles, Tr. at 1991), but that the infrared spectrum of EP-34 provided no evidence that independent, isolatable, purely crystalline polypropylene molecules were present. (Id. at 1990). I accept Dr. Wiles testimony that the ratio of the 10.05 to 10.29 band is less that one. The evidence presented does not strongly indicate the degree of crystalline polypropylene present or indeed whether there is any present at all. Defendants have failed to prove that there was a substantial crystalline polypropylene content in Run EP-34. b) Percent Ethylene Content Painter calculated the percent ethylene content of EP-34 at 37% (Painter, Tr. at 1545; DTX 45S). Wiles was in substantial agreement with the methodology and the resulting figure. (Wiles, Tr. at 1950, 1993). Relying on the 37% ethylene figure, Defendants contend that such a large amount of ethylene could not be randomly distributed in the solid product of EP-34 because the spectrum clearly shows absorptions in the range attributed to crystalline polypropylene. (Painter, Tr. at 1555-57). In essence, Painter concluded that in samples with ethylene content of greater than 20% by weight that is randomly incorporated into the polymer chain, there is no polypropylene crystallinity because there are insufficient sequences of ethylene units remaining to crystallize into polypropylene. (Painter, Tr. at 1556-57; see DTX 455; DTX 506). Painter noted that there is no evidence of polyethylene crystallinity in EP-34. (Painter, Tr. at 1544-45). Dr. Wiles testified that the 37% ethylene content in EP-34 would be consistent with a high ethylene content copolymer. (See Wiles, Tr. at 1949). The significant absorptions at 13.7 and 13.9 microns are indicative of long sequences of three and five or more methylene units respectively. (Wiles, Tr. at 408, 1949-50). The clear import of Dr. Wiles’ testimony is that the presence of these long methylene units is inconsistent with the presence of essentially recurring propylene units. On this point, I find Dr. Wiles’ testimony more credible. Defendants admit that there is no polyethylene crystallinity exhibited in the spectrum for EP-34. As such, their argument is that because there is so much ethylene, it must be in an ethylene/propylene copolymer which is then, in turn, mixed with crystalline isotactic polypropylene. (But see Wiles, Tr. at 1994-97). Dr. Wiles was of the opinion that there simply was no evidence to indicate that the solid product of EP-34 was a mixture. Terming the mixture theory a “shot in the dark”, he noted that “[t]here is no such spectrum that anyone has ever produced that — like this one, EP-34, Exhibit 217, that derives from a mixture of the kinds of materials [Defendants] are talking about.” (Wiles, Tr. at 1994-95). He further indicated that in a mixture of 25% crystalline isotactic polypropylene and 75% ethylene/propylene copolymer, he would not expect to see absorptions at either 10.05 or 10.29 microns, both of which appear in DTX 217. (See Wiles, Tr. at 1997-98). Thus, Wiles concluded that because the ratio of the 10.02 and 10.29 micron bands is considerably less than one in EP-34 and there is a significant absorption at 13.7 and 13.9 microns, indicating long sequences of methylene units, and there is a 37% ethylene content but no eythlene crystallinity, the solid product of EP-34 could not be a mixture. (Wiles, Tr. at 1947-50). Further, Phillips’ expert in polymerization, Dr. Bailey, testified that because the EP-34 solid fraction was soluble in xylene at room temperature, the product was not a mixture. (Bailey, Tr. at 2266-67, 2454-55). Reasonable molecular weight crystalline polypropylene is insoluble in xylene at room temperature, whereas Carmody’s solid fraction was soluble in xylene at room temperature. (Id. at 2266, 2455). As such, I conclude that Defendants failed to prove that Run EP-34, carried out in accordance with the processes of the ’257 patent, produced a product consisting essentially of recurring propylene units. The evidence indicates the product is more likely a rubbery, ethylene-rich copo-lymer of ethylene and propylene. 2) EP-35 An infrared spectrum from a single beamed instrument was also obtained for the solid polymer fraction from EP-35. (DTX 219; Painter, Tr. at 1568). Dr. Painter testified that the spectrum of EP-35 exhibited absorption peaks at about 7.25, 8.56, 10.02, 10.29 and 11.91 micro