Full opinion text
AMENDED MEMORANDUM OF DECISION DALY, Chief Judge. Plaintiff, United States Surgical Corporation (“USSC”), initiated this action on January 26, 1981 for patent infringement and related declaratory judgment relief. The complaint ultimately was amended to include claims for violation of § 43(a) of the Lanham Act, statutory and common law trademark infringement, and infringement of common law trade name rights. The plaintiffs initially sought injunctive relief, but that claim since has been rendered moot by the expiration of the patents-in-suit. The defendants generally denied the gravaman of the complaint and asserted a variety of boiler plate defenses and affirmative defenses that challenge the validity and enforceability of the patents-in-suit. They also asserted several counterclaims to redress alleged unfair competition, and for violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961. Pursuant to Fed.R.Civ.P. 42(b), the Court severed for trial the issues regarding infringement and the relevant defenses from the various other claims and counterclaims. The instant ruling, entered pursuant to Fed.R.Civ.P. 52(a), represents the culmination of a lengthy and protracted trial and an arduous review of the entire record, particularly the proposed findings and conclusions submitted before and after trial, as well as the trial exhibits and transcripts of the trial testimony. I. BACKGROUND The subjects of the suit are four patents for surgical stapling devices and accessories all of which are owned by USSC and marketed under the trademark “AUTO SUTURE.” The patents are as follows: Patent No. Title Issue Date 3,275,211 Surgical Stapler With Replaceable Cartridge (“Hirsch ’211”) September 27, 1966 3,315,863 Medical Instrument (“O’Dea ’863”) April 25, 1967 3,494,533 Surgical Stapler For Stitching Body Organs (“Green '533”) February 10, 1970 3,499,591 Instrument For Placing Lateral Gastrointestinal Anastomos-es (“Green ’591”) March 10, 1970 The plaintiff’s patented products are the mainstay of a revolution in surgical suturing procedures and replace the traditional needle and thread for suturing and reconstructing human tissue. It is alleged that Blackman, a former USSC salesman in New York, began marketing and reproducing USSC’s products under either the Hospital Products Limited or Surgeons Choice label. The following issues were tried and shall be resolved by the instant decision: 1. whether the USSC patents-in-suit are valid and enforceable; 2. whether the manufacture, use or sale of one or more of the defendants’ products infringe, contributorily infringe, or induce the infringement of one or more claims of the patents in suit; and, 3. whether the defendants’ infringement, if any, was willful and deliberate. 1. The Parties The plaintiff, USSC is a New York corporation having a principal place of business in Norwalk, Connecticut. The patents-in-suit issued to USSC-Maryland, with which USSC merged in 1975. As a result of the merger USSC acquired the patents, and thus, USSC has been, and continues to be, the owner of all right, title and interest to the patents, and has standing to sue, and recover, for any past infringement. Defendant Hospital Products International Pty. Ltd. (“HPI”), and its successor-in-interest, Hospital Products Limited (“HPL”), are Australian corporations. For present purposes, the two shall be treated synonymously. The second corporate defendant, Surgeons Choice, Inc. (“SCI”), a wholly-owned subsidiary of HPL, is a Delaware corporation that, at the time the suit was instituted, maintained a regular and established place of business in Greenwich, Connecticut. In August, 1985, SCI filed for bankruptcy under Chapter 11 of the bankruptcy laws. The bankruptcy later was converted to a Chapter 7 proceeding, and on December 20, 1985, pursuant to the automatic stay provisions of 11 U.S.C. § 362(a), the Court ordered the instant action stayed only as to SCI. The individual defendant, Alan R. Black-man (“Blackman”), is a United States citizen who has been associated with SCI, HPI and HPL in a variety of capacities during the relevant period. The extent and nature of Blackman’s associations with the corporate defendants is a matter of some dispute and shall be discussed more fully infra. 2. Historical Background of Surgical Stapling Devices Throughout medical annals it appears that surgeons typically have employed manual suturing with needle and thread for the reparation and reconstruction during surgery of body tissue and organs. The several disadvantages attendant to the traditional suturing procedure include the usually excessive time while the patient is anaesthetized and his tissue is being repetitively handled, both of which may cause excessive trauma, bleeding, and infection that may impede the patient’s recovery. Efforts to develop alternative, mechanical, suturing techniques and devices date back to at least as early as 1826. Not until the early portion of this century, however, did those efforts involve stapling devices such as those developed by Humer Hultl and Aladar von Petz of Hungary. Their stapling devices, like the other, similar devices developed by their contemporaries in other parts of Europe and the Orient, proved either too clumsy, tedious, or otherwise impractical for mass production and use in the surgical setting. Prompted, at least in part, by the multitude of deaths from acute and profuse bleeding suffered by the Russian troops around Stalingrad in World War II, the Russians set out in 1946 to develop surgical staplers, particularly of the vascular genre, that would capture a simplicity of operation and time, and surpass the benefits of conventional manual suturing. The Russians organized their efforts by establishing in 1951 the Scientific Research Institute for Experimental Surgical Apparatus (“the Russian Institute”). The Russian Institute employed experts from several disciplines, including metallurgy, engineering, and the medical arts, and within several years had generated several patented inventions and designs for stapling devices. A great many problems inherent in the Russian devices prevented any of them from ever being viable or marketable for widespread use. For example, each Russian instrument, as well as the metal staple magazines, were individually machined, which precluded the interchangeability of parts and mass production of the instruments. Further, the staples had to be loaded individually by hand; a tedious and time consuming process. Besides these difficulties, the devices also were difficult to maintain for precision operability. For example, the “C-clamp” staplers, typically used to seal off a diseased organ, utilized tiny pusher fingers attached to a pusher rod, that would press against the staples, causing them to eject from the cartridge and into the tissue. The pusher fingers were difficult to maintain and clean, and could easily bend out of alignment. In such an instance the stapler could jam during surgery or lose a staple from the staple line and cause leakage along the suture line. Similarly, the anastomosis devices, used to join two hollow body organs, also contained tiny staple pushers, that, because they were difficult to clean, would become inoperable from accumulations of fibrin. Although recognizing the need to develop devices with replaceable parts, such as anvils and magazines, the experts at the Russian Institute never were able to produce or market reliable, durable, and precision devices for mass production and widespread use. In sum, while the Russian instruments, devised for a wide range of uses, had replaceable staple magazines that could be pre-loaded with fine wire staples, they left several problems to be overcome, such as staples that had to be hand loaded, instruments that had to be disassembled to be reloaded, the instruments accepted only a single type of magazine, and the delicate staple-driving fins were subject to damage, and the knives to dulling. By 1958 the pioneering efforts of the Russian Institute had become known to prominent experts in the United States who had visited the Institute, and in 1959-60 the devices were brought to this country where they were demonstrated. Though well received, the shortfalls of the devices were recognized. At least one company licensed to market the Russian products in this country realized the need to develop preloaded disposable staple cartridges, but the idea never came to fruition. Despite great efforts, the Russian devices never were marketed with any success in this country. The work of the Russian Institute did, however, prove to be the catalyst for research and development of similar devices in the United States. One of the most notable of the relevant American pioneering devices was the vascular stapler, used to join two severed blood vessels, and patented by Rudolph F. Mallina. Mallina and his associates were intent on improving the Russian vascular stapler. They succeeded in patenting a device that enjoyed over its Russian counterpart an economy of parts, and disposable plastic bushing halves, and staple pushers. Nevertheless the device still required the timely process of manually loading the minute staples, and Mallina never resolved the puzzle of developing a device that could be used with a minimum of learning time and a maximum of reliability necessary to surpass the benefits of manual suturing. No more than one hundred of Mallina’s vascular devices ever were sold, and their production was discontinued. Mallina also was responsible for developing other devices such as a single stapler with a permanent pusher, and a “five-in-line” stapler, neither of which embodied a unitary stapling device with a disposable pusher, nor were any of the devices marketed successfully. Another American patentee, Dr. Harry Fleischer, devised a surgical stapler of the “C-elamp” variety, but the instrument proved to be too clumsy and none but the prototype ever was produced. Nevertheless, Blackman bought the rights to the invention sometime after the commencement of the instant action. 3. Technical Background and Description of the Patents-in-Suit The USSC patents-in-suit include patent claims that describe and cover two types of sterile, pre-loaded disposable loading units (“DLU’s”) designed for use with two basic types of USSC’s patented surgical stapling instruments. The first type of instrument is for linear closure of internal body tissue. Typically used to seal off an organ so that adjacent, diseased tissue may be removed, the instrument simultaneously places two parallel, staggered rows of staples into the tissue. The tissue to be engaged is placed in the end of the instrument, which is shaped like a “C.” Thus, instruments of this type commonly are called “C-clamp” instruments. Besides AUTO SUTURE™ the USSC C-clamps are marketed under the trademarks “TA 80,” “TA 55,” and “TA 90.” The DLUs for the TA 30 and TA 55 consist of a disposable anvil, alignment pin, and cartridge (as opposed to a permanent, reusable magazine) assembly. The cartridge is loaded with staples and is fitted in the rear with “pushers,” which eject the staples. The TA 90 DLU is identical to the TA 30 and TA 55 except for the alignment pin, which is included as a permanent and reusable component of the TA 90 instrument. All of the components of the TA DLUs are disposable and are designed for only a single use. The second type of instrument typically is used for lateral anastomosis: the joining of two hollow body organs, such as the stomach and intestines, after surgery. The instrument, marketed by USSC under the additional trademark “GIA” (gastro-intesti-nal anastomosis), places two double staggered rows of stainless steel staples, and has the additional capability of dividing, or cutting, the tissue between the two double staple rows. The DLUs for the GIA include a disposable cartridge that contains the staples and pushers, an anvil, and a disposable push-bar/knife assembly, which is used to eject the staples sequentially from the cartridge and to cut the tissue. In order to function in the precise fashion for which they were engineered, after being injected into the targeted tissue, the staple must form a general “B” shape. Deviations from the designated shape are not acceptable, and render the device useless. For example, a staple that is too tight may crush the tissue, prevent the flow of nutrients and result in necrosis, while a staple that is too loose may allow the joined tissue to separate and prevent healing. The apparent ability consistently to fire staples and form the B-shape are just one of the key advantages that USSC claims its patents have over similar other devices that have not attained the same commercial or practical success. For example, the USSC stapling instruments and accessories can be mass produced, are easily handled, are preloaded, and their parts are interchangeable. a. Hirsch ’211 The Hirsch ’211, the application for which was filed on May 10, 1965, was the first patent obtained by USSC that was the product of its own research and development. Generally, the patent embodies two features that are claimed to be an improved staple cartridge for a surgical stapling instrument. More specifically, USSC has asserted claim 4 of the patent as a representative claim against the defendants. That claim reads as follows: A staple cartridge, comprising an elongated body portion of generally rectangular cross section; said body portion including a plurality of aligned slots penetrating the body portion with each slot adapted to receive and retain a staple; a pair of rails oppositely disposed along the body portion and extending the length thereof in spaced apart relation; a planar plate comprising the face of the body portion in spaced apart relation with the rails, and extending the length thereof, and protruding beyond the lateral dimension of the body portion to form grooves between it and each of the rails, said body portion and face being apertured to receive pin means adapted to penetrate the cartridge. Thus, the staple cartridge is a replaceable one that is mounted by sliding it vertically onto parallel rails that guide it into position on the instrument frame. It is designed so that the cartridge can slip into place on the instrument frame, and can be replaced without having to disassemble the instrument. Furthermore, the tolerances of the cartridge are such that each cartridge can be replaced and positioned within the same degree of precision. The second element of claim 4 that is in issue is the alignment pin, which serves the dual function of maintaining the alignment of the cartridge while retaining the tissue that is the target of the staples. The pin is inserted through both the instrument frame and the cartridge, and continues until it closes the open space in the C-frame in which the targeted tissue is confined. So positioned, the pin, which may have one or more prongs, aligns the cartridge with both the anvil and the instrument frame, while retaining the tissue in the C-frame. Although not specified in the language of claim 4, it is clear from the specifications that the patent teaches that the pin is aligned in the same general direction as the staple slots. USSC’s TA 30, TA 55, and TA 90 DLUs embody all elements of claim 4. b. The O’Dea ’863 The O’Dea ’863, which is applicable to both the C-clamp and lateral anastomosis instruments, claims a unitary cartridge assembly with internal pusher elements to eject the staples. The staples are pre-steri-lized, and loaded and positioned in the cartridge before leaving the factory. USSC has asserted claims 1 and 15 of the O’Dea ’863 as representative claims against the defendants: 1. A disposable unitary staple cartridge assembly, especially for use in a surgical stapling device, comprising: a cartridge member, a plurality of slots extending through said member adapted to hold a staple therein having a back end located intermediate the ends of the slot, a staple drive member including a plurality of finger elements, said drive member being aligned relative to said cartridge member by means of said fingers extending to a substantial extent into respective ones of said slots and into abutting relation with the back end of each staple, mounting means on said cartridge member for mounting said assembly as a unit on a stapling device. * s|f * * * * 15. A medical stitching instrument comprising a cartridge assembly support, a removable unitary cartridge assembly comprising a plastic cartridge removably mounted on said support and having a face adapted to engage an organ and the like, a plurality of slots arranged in said cartridge and communicating with said face, each said slot being adapted to hold a surgical staple therein, a pusher positionable in each said slot behind the staple therein prior to the assembly of said cartridge on said support, said instrument further comprising an anvil relatively movable with respect to said face and cooperating therewith to clamp the organ, said anvil having means thereon aligned with each said slot for contacting said staple after the latter has been ejected from said slot and means for moving said pusher in said slots to eject said staples. Claim 1 is embodied in USSC’s TA 30, TA 55, and TA 90 DLUs, and claim 15 is embodied in the USSC GIA DLU and GIA instrument. c. The Green ’533 The Green '533 claims a number of improvements to surgical stapling instruments, particularly an anvil groove. The slope of the walls of the groove vary so that it is flared at the top to engage and align an errant staple, and more sharply sloping at the bottom of the groove so that the staple may be controlled and pressed into the B-shape. The anvil groove is designed to prevent misalignment of staples, and to promote the consistency with which B-shape staples may be fired. Moreover, by countervailing residual misalignment problems, the anvil groove contributes to the interchangeability of parts and the ability to mass produce precision parts. The relevant claim of the ’533 is 22 which reads as follows: A surgical stapler comprising frame means including a first member to receive a cartridge loaded with surgical staples and a second member to receive an anvil, a cartridge loaded with surgical staples detachably mounted on said first member, an anvil detachably mounted on said second member, said anvil having a working surface from which a plurality of staple shaping grooves extend into the body of said anvil, at least the portion of the edges of said grooves adjacent their ends being flared into said surface to provide a lead-in for staples and thereby to assure proper alignment with the central axes of said grooves during bending up of said staples notwithstanding minor misalignments of said staples when first contacting the working surface of said anvil, the flared portion of said grooves extending into said surface an amount less than the depth of said grooves so that the bending up of said staples is controlled by the bottom unflared portion of said grooves, and means to bring said cartridge and anvil into a proper working relation and to drive the staples from said cartridge against said anvil to bend up same. Claim 22 is practiced in USSC’s TA 30, TA 55, TA 90 and GIA DLUs in combination with the corresponding USSC TA or GIA instrument. d. The Green ’591 The ’591 describes and claims a cartridge and an instrument/cartridge combination for the GIA series from which a staple pusher ejects two staples simultaneously. At issue are claims 9 and 15. Claim 9 is dependent on claims 1 and 2 and incorporates all the elements of those claims: 1. A cartridge assembly for a surgical stapler having an elongated cartridge with a tissue engaging surface, two sets of staple-carrying grooves each adapted to carry a staple with its free ends projecting toward said surface, each set being aligned in the longitudinal direction, said sets being separated by a guide path for guiding an ejection effecting cam member, each set of staple-carrying grooves being open to said path and extending to said surface, and an integral drive member positioned on the opposite side of the staples from said surface having two drive sections guided by the cartridge to ride within the planes of the staple-carrying grooves in opposite ones of said sets and having means disposed in said path to be engaged by the cam member to effect movement of the drive member toward said surface and thereby to effect a simultaneous ejection of the two staples. 2. A cartridge assembly as set forth in claim 1 wherein said sets are longitudinally staggered and said last-mentioned means includes a cam symmetrically positioned in the longitudinal direction relative to the two drive sections so that forces opposing staple ejection are balanced about said cam. 9. A cartridge assembly as set forth in claim 2 wherein a plurality of such sets are provided divided by the path and longitudinally aligned to form a pair of parallel and aligned rows of sets, the sets of one row being staggered and overlapping in the longitudinal direction the sets of the other, and a plurality of such drive members carried by cooperating sets, the front and back edges of each drive member being spaced from adjacent drive members so as not to interfere with the adjacent drive members. 15. A surgical stapling instrument comprising an upper frame having a midre-gion, a finger-like cartridge-carrying projection extending forward of the mi-dregion and an elongated handle portion extending rearward of the midregion, an elongated cartridge secured to said cartridge-carrying projection and having a pair of longitudinally extending transversely spaced parallel pusher guide bar paths opening through the back of the cartridge and a longitudinal knife member guide path intermediate of and parallel with said pusher bar guide paths and also opening through the rear of the cartridge, at least one row of staple-carrying grooves disposed along each of said guide paths, each pair of grooves extending generally perpendicular to the direction of the pusher bar guide paths, said cartridge further carrying a plurality of staple drive members each associated with at least one pair of staple-carrying grooves and being guided by the cartridge to drive the associated staple along said staple-carrying grooves, each member having a cam portion extending into the associated pusher bar path, a pusher assembly including a pair of elongate pusher bars and an elongate knife member disposed between said pusher bars, each said pusher bars having a cam surface at the forward tip thereof for cooperative engagement with said cam portion of said drive members, operating handle means securing the rear ends of said elongate pusher bars and knife member, the forward parts of said pusher bars and knife member penetrating the respective paths in said cartridge, said handle portion and operating handle means including guide means for guiding the operating handle generally parallel to said paths during ejection, the longitudinal relationships of each corresponding pairs of staple-carrying grooves being related to the longitudinal relationships of the pusher bar cam surfaces such that the peak staple ejection resistive forces encountered by the one pusher bar occur before or after but not during the time such forces are encountered by the other pusher bar. Thus, the claims in issue describe a DLU and instrument in which a staple pusher ejects two staples simultaneously. The patent discloses a double staple pusher positioned such that each staple pusher bridges across the pusher bar path so that half of the pusher is on either side of the pusher bar path. Each pusher is positioned under two staples, one from each row on either side of the pusher bar path, so that each pusher will eject two staples. Each staple pair is staggered longitudinally (i.e., each staple is positioned diagonally behind the other, in a zig-zag fashion) and bridges the push-bar path. In this way, when a double pusher ejects two staples to engage tissue, the forces generated tend to be balanced in both the side-to-side and front-to-back directions, thereby decreasing the offset loadings on the pushers and reducing their tendency to bind. The tips of the pusher bars are arranged, relative to the pushers, so that the maximum force that must be exerted to force the staples into the B-shape occurs at only one pair of staples at a time. The anvil and pusher bar/knife assembly also are designed for improved alignment and ease of operation. Claim 9 is embodied in USSC’s GIA DLUs and the combination of a USSC GIA DLU and a USSC GIA instrument embodies the subject matter of claim 15. 4. The Prior Art On several occasions prior to trial, the defendants identified nearly one hundred patents as prior art. The list of those patents was not limited to surgical staplers and related devices, but included patents for wall sockets, wood screws and funnels, as well as common paper staplers, to name only a few. In contrast, it appears that the United States Patent Office held a different, more limited view of the scope of the relevant prior art. Granville Y. Custer, Jr. was the Examiner for the Hirsch ’211, O’Dea ’863, and Green '591 patents, and conducted the search of prior art for the Green ’533 application. Mr. Custer also was the Examiner responsible for the prosecution of several of the patents that have been identified as prior art relevant to the patents in suit — such as the Strekopi-tov ’643 and the Kapitnov ’581 — and which were relied upon by the defendants at trial. During the course of the prosecution of the patents in suit, fourteen prior art references were cited by the Examiner, ten of which were relied upon by the defendants at trial. The defendant cites in the post-trial brief only a small fraction of the prior art references relied upon previously, thus limiting in scope the present discussion. More specifically, the defendant has urged the Court to review only the following prior art references for each of the defenses raised: PATENT Hirsch ’211 Anticipation: Strekopytov ’643 Fraud: Strekkopytov ’643; Strekopi-tov '564; Gorkine '035 O’Dea ’863 Anticipation: American Vascular Stapler; 1962 Scientific American; Hirsch ’211 Fraud: Mallina '654; Unspecified Russian instruments; Hirsch ’211 Green ’533 Anticipation: McGill ’316; Rudolphsen ’608; household funnel; Cav-anagh ’331 Obviousness: same as above; Hultl; Fried-rich Fraud: O’Dea ’863; Sampson ’637; Ul-rich ’527 Green *591 Anticipation: King '675 Obviousness: King ’675; Bobrov ’606; Fisher ’300; Hultl Humer Hultl Humer Hultl, a renowned Hungarian surgeon, first presented a surgical stapli lg instrument in 1908. Variously described as weighing between seven and eleven pounds, the instrument was comprised of several moving parts, and was loaded manually. It was capable of placing four rows of staples that were of round cross-section steel wire, which is similar to the type employed in modern devices. The staples were ejected sequentially by the manipulation of a crank reminiscent of an old fashioned coffee grinder, and upon striking an anvil, the staples were formed into a general B-shape. Once the staples were placed, the tissue could be divided, leaving two rows of staples on either side. Hultl used his procedure primarily to prevent leakage of organs temporarily during surgery. Although acclaimed as a brilliant first attempt to develop a surgical stapler, it has been criticized for its clumsiness, its tendency to crush tissue, and the extensive time consumed in loading. Only fifty or so of the instruments ever were produced, none of which appear to be in use today. The most important contribution to the prior art by Hultl is the example it set for later developments such as the von Petz instrument, and at least one of the Russian instruments. Although not asserted by the defendants as pertinent prior art, the von Petz instrument was an important contribution that arrived in the nineteen twenties. The construction was less complex than the Hultl device, and utilized square, instead of round, wire for the staples. The von Petz instrument presented an advancement in the consistency, reliability and quality of the staple formation, but there also were several drawbacks. For example, the use of square wiring resulted in larger, gross and less desirable staples, but which required less effort and guidance to form an appropriate staple. Bobrov ’606 Bobrov United States patent 3,709,606 (“ ’606”) is a Russian lateral anastomosis instrument cited during the prosecutions of the O’Dea ’863 and the Green '591, and mentioned in the ’591 application. The patent discloses a permanent anvil and pushers, and two rows of staples divided by a knife/pusher bar path. The single pusher bar ejects two staples simultaneously, one on either side of the knife/pusher bar path, and each pusher ejects a single staple. The ’606 was known to encounter problems in advancing the knife/pusher bar, especially when the pusher slots became filled with blood and fibrin. The ’606 was not found by the Patent and Trademark Office to be of sufficient pertinence to render the ’591 or ’863 unpatentable. Fisher ’300 The Fischer United States patent 960,300 (“ ’300”) discloses a star wheel structure that forces the ejection of the staples. The two rows of staples are staggered relative to one another, and two star wheels are attached to the front of a rack, which is advanced along the two rows of staples. Mallina ’458 One of the many patents obtained by Rudolph Mallina was 3,286,458 (“’458”), which disclosed different machines for loading staples into half-bushings and linear arrays. Only preliminary prototypes ever were built. Although Mallina may have to his credit other patents and designs that are relevant prior art, the Court is not persuaded that the ’458 is relevant to any of the claims in issue. Strekopytov ’643 The Strekopytov 3,252,643 (“ ’643”) shows a Russian type of C-clamp instrument that has been called the UTL-70, and which has been conceded by the plaintiff to be prior art. In fact, it was cited, but not discussed by the Patent Examiner in the course of the prosecution of the Green ’591. The UTL-70 employs a replaceable magazine that has two rows of staples separated by a third row. After the two rows of staples are fired into the tissue, the tissue is manipulated before the third row is fired. In this sense the UTL-70 is comparable to using two instruments side-by-side. The reusable magazine is mounted by four lugs, or “ears,” that fit onto four L-shaped slots on the instrument frame. The magazine is located on the instrument by positioning the lugs into the L-shaped slots. In this regard the ’643 is similar to the Streko-pitov 3,080,564 (“ ’564”) which also is claimed by the defendants as prior art. To remove and reload the magazine, the instrument must be partially disassembled. Other features include delicate pushers that permanently are attached to the push rods in the instrument, and four pins that each have two tines. The patent discloses that these pins are for the purpose of retaining tissue. Even though the drawings for the ’643 display the pin holes to be located at ninety degree angles to the direction of the instrument frame, the UTL-70 has pin holes that extend through the magazine. In either case the pin holes are larger than the pin so that the pin does not contact the magazine, rather the holes provide clearance for the easy passage of the pins. The ’643 does not appear to be in use today, and is difficult to obtain, the Court’s exhibit having been borrowed from the Smithsonian Institution. Strekopitov ’564 The ’564, cited by the plaintiff during the prosecution of the Hirsch ’211, O’Dea ’863, and Green ’533 patents, describes the Russian UKB C-clamp instrument. Like the ’643, the '564 discloses a reusable magazine that has four lugs which are inserted into four L-shaped slots on the instrument frame. To reload a spent magazine, the instrument had to be disassembled by rotating a knob that moved the pusher bar and other components backward, and in so doing, disengaged other lugs from ears on other portions of the instrument frame. The body then was lowered away from the bar so that the lugs of the spent magazine could be moved out of the slots that maintained their location. This reportedly was a time consuming procedure. Like the ’643, the ’564 design also includes pushers attached to a push rod in the instrument. Unlike the ’643, however, the design does not include a pin of any kind, possibly because the UKB was used on tough tissue that easily was retained without a pin. The Patent Examiner did not reject any of plaintiff’s claims on the basis of the ’564. Gorkine ’035 The Gorkine 1,237,035 (“’035”) is a French patent, of which Strekopitov was a co-patentee, and describes the Russian UKL C-clamp instrument. Although very similar to the ’564, including the way in which it is disassembled to replace the magazine, the UKL is distinguished by its pin feature. The pin is forked with two tines that are inserted into holes in the rear leg of the C-clamp. The pin appears to serve the sole purpose of tissue retention, as it does not at all contact the magazine. Kapitanov ’581 Kapitanov 3,314,581 (“ ’581”) is a United States patent for a multi-staple instrument for placing a longitudinal vascular suture. The patent discloses seissor-like instruments for the placing of a single row of staples. The staples are contained in a reusable magazine that is secured in the instrument by lugs, and are ejected by pushers permanently attached to the instrument. Mallina ’654 Mallina’s 3,144,654 (“ ’654”) patent describes a vascular stapling instrument for joining severed blood vessels end-to-end. The relevant feature of the patent involves the disposable bushing — as opposed to a cartridge — assembly. A complete bushing assembly has several components that must be assembled manually on the suturing instrument. These include two staple bushing halves, two anvil bushing halves, and a nondisposable pusher that is inserted into each bushing half. Each staple and anvil component is semi-cylindrical in shape and eventually mates on the instrument to form a staple cylindrical half and an anvil cylindrical half. The ends of the vessel to be joined by suture are clamped between the two staple bushing halves and the two anvil bushing halves. The ’654 represented an improvement over its Russian predecessor, at least insofar as the ’654 added a gearshift to engage the bushing half with the anvil half during surgery and reduced the number of parts from twenty-one to fifteen, and made them easier to fit together. Mallina also introduced ridges within the bushing halves to gently clamp and hold the vessel ends, and developed plastic disposable bushing halves as opposed to the Russian reusable metal bushing halves that had to be loaded manually. American Vascular Stapler Mallina and his associates eventually developed five prototypes of a vascular stapling device, the last of which commonly is known commercially as the American Vascular Stapler. In addition to the advances of its predecessors, the commercial device also employed disposable pushers in the bushing halves. Like the ’654 though, the commercial stapler embodied multi-compo-nent bushings that were assembled on separate portions of the instrument before stapling, and disassembled separate from the instrument after firing. It was the procedures required for removing and replacing the bushings that prompted Mallina to concede that the device could not achieve the necessary advantage over manual suturing of limited learning time and maximum reliability. No more than one hundred of the devices ever were marketed by Codman & Shurt-leff, a manufacturer of surgical instruments that supported the work of Mallina and his associates. Even though none are in clinical use today, and have not been produced since 1967, the plaintiff concedes it is prior art. Scientific American Article In the October, 1962 edition of the Scientific American magazine, (vol 207, no. 4), an article by Mallina appeared in which he described his work, particularly the ’654, and its advances over its Russian counterpart. The article depicts the Russian UKB and vascular instruments, as well as the von Petz instrument. The article is not as specific as some of the applications for the patents described in the article. For instance, only passing reference is made of the role of the pusher in the vascular stapler without mentioning how it is assembled or whether it is disposable. In fact the drawing of Mallina’s device in the article is one on which the pushers typically are constructed of Vitallium — a substance too expensive to be used for a disposable component. Ulrich ’527 Ulrich designed surgical staplers for over twenty-five years, and was responsible for the first replaceable magazines. Several of his patents were raised at trial, but only the 869,527 German patent (“ ’527”) has been asserted at this juncture with regard to fraudulent procurement of the Green ’583. Findings with regard to Ulrich’s earlier patents are provided as background. Ulrich’s German patent 569,169 embodied a stapler without a magazine that fired two rows of three staples. The second embodiment of the ’169 was a single stapler. Both embodiments included a permanent magazine that was not replaceable. Ulrich’s German patent 618,922 disclosed an improvement over the ’169, and embodied a single stapler with a magazine separated from the stapling site, and a C-clamp instrument with a replaceable magazine. The magazine, or “frame” in the latter embodiment could be inserted from above or below the instrument and was aligned by the entry into the magazine of the permanent pusher fingers. In cooperation with Drs. Friedrich and Neuffer, Ulrich designed what has been called the Friedrich instrument, which is a C-elamp instrument with metal magazines. Like the Russian C-clamps, the Friedrich had permanent pushers that easily were bent and difficult to maintain. The magazine of the instrument is shaped like a tuning fork; each prong capable of laying a row of staples. Each magazine was designed to mate with a particular instrument and was positioned by sliding it along a set of tracks on the instrument. There are two features on the instrument of particular note. The first is the ability of the instrument to fire less than a complete row of staples. This is accomplished by manipulating the magazine so that only a portion of the magazine is positioned on the instrument. The length of the portion positioned on the instrument corresponds to the length of the staple line. The second noteworthy feature is a detent that has a pin designed to fit into any of a series of small depressions on the side of the magazine. The putative purpose was to pre-position the magazine, with final alignment to be provided by the insertion of the pusher fingers into the staple slots. Although the detent on the exhibit that was borrowed from the Smithsonian did not function properly, it appeared that the design would not permit pre-positioning of any significant firmness. The only Ulrich patent that the defendant has cited, however, is the ’527, which came nearly twenty years after the Fried-rich instrument. It too embodies the C-clamp and utilizes the same type of magazine as the Friedrich instrument, including the pre-positioning detent. An additional disclosure of the patent is a reinforcing hook and a threaded screw, neither of which pass through or contact the magazine. Sampson ’637 The Sampson patent 3,017,637 (“’637”) discloses a surgical stapling instrument comprised of two straight bars connected at one end by a hinge and at the other end by a latch. It discloses neither a cartridge nor a removable anvil. The two straight portions, one of which contains two rows of staples, are positioned around the targeted tissue, such as the stomach, and then closed and clamped at one end by the latch. Cavanagh ’331 The Cavanagh 2,167,331 (“ ’331”) was cited to the Patent Examiner during the prosecution of the Green ’533 patent, and has been cited by the defendant to support a defense of non-infringement. The patent discloses a typical paper stapler in which the sides of the anvil groove taper downward and inward all the way to the base of the groove. The Examiner determined that the ’331 was not sufficiently pertinent to render the ’533 unpatentable. Greenfield ’583 The Greenfield patent 1,287,583 (“ ’583”) issued in 1918, discloses a paper stapler in which a shallow anvil groove is flared all the way to the bottom. Like the Cav-anagh ’331, the ’583 was cited during the prosecution of the Green ’533, but found not to be sufficiently pertinent to render the ’533 unpatentable. King ’675 The King and Green patent 3,490,675 («’gyg”) discloses a precursor to the plaintiff’s GIA lateral anastomosis instrument. As described by the plaintiff, the cartridge includes two pairs of rows of staples, each row is longitudinally staggered and the pairs lie on either side of a central knife path. A pusher bar travels between each pair of rows of staples and, for each staple in sequence, contacts a cam surface offset from the side of a pusher so that there is a single pusher for each staple. As the pusher bar travels between each pair of rows of staples, contact between the pusher bar and pushers causes the staples to be ejected and formed against the anvil. The device proved to have problems, and, as a result, was not commercially successful. For example, because the driving force on the cam surface is offset, “turning moments,” are created that tend to turn the pusher about all three of its rectangular axes. These turning moments may increase the risk that the pushers will bind against the side walls or staple groove walls and jam. Furthermore, the arrangement of the pushers and pusher bars was such that peak ejection forces were experienced simultaneously by the two pusher bars. McGill ’316 The McGill patent 212,316 (“ ’316”) dates to 1879 and discloses a paper stapler capable of having loaded and ejected one staple at a time. It also discloses an anvil with a variety of grooves for different staple forms, and an adjustable position relative to the arm or staple driver. Rudolphsen ’608 The Rudolphsen patent 2,294,608 (“’608”) discloses an electrical connector that is inserted into a wall socket that has chamfered edges. The plaintiff stipulated that this patent is prior art. II. VALIDITY The patents-in-suit and the disputed claims enjoy a statutory presumption of validity, and the one attacking validity has the burden of proving invalidity by clear and convincing evidence. 35 U.S.C. § 282; Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1375 (Fed.Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1606, 94 L.Ed.2d 792 (1987); Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534 (Fed.Cir.1983). The burden is static and remains with the challenger throughout the trial. E.g., American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1360 (Fed.Cir.), cert. denied, 469 U.S. 821, 105 S.Ct. 95, 83 L.Ed.2d 41 (1984). Behind the presumption is the basic proposition that the Patent and Trademark Office (PTO) has some expertise in determining whether the conditions of patentability have been met, and their determinations are entitled to some deference. Id. at 1359; Polaroid Corp. v. Eastman Kodak Co., 789 F.2d 1556, 1560 (Fed.Cir.), cert. denied, 479 U.S. 850, 107 S.Ct. 178, 93 L.Ed.2d 114 (1986); see Bausch & Lomb, Inc. v. Barnes-Hind/Hydrocurve, 796 F.2d 443, 447 (Fed.Cir.1986), cert. denied, — U.S. -, 108 S.Ct. 85, 98 L.Ed.2d 47 (1987). Thus, the burden upon the party attacking validity may be more difficult when the prior art relied upon at trial is the same as that before the PTO, Barnes-Hind/Hydrocurve, 796 F.2d at 447, while the meeting of the burden may be facilitated by the introduction of prior art not before the PTO. Hybritech, Inc., 802 F.2d at 1375. 1. Anticipation An invention is not novel, and thus not patentable, if before the invention by the patent applicant, the invention was “known or used by others in this country, or patented or described in a printed publication in this or a foreign country.” 35 U.S.C. § 102(a). Such knowledge, usage, patents, and descriptions generally comprise the prior art. Should the prior art disclose an invention within the meaning of § 102, it is said to “anticipate” the invention, and the invention shall fail to fulfill the novelty requirement. The anticipation defense is a narrow one that “requires the disclosure in a single prior art reference of each element of the claim under consideration.” W.L. Gore & Assoc., Inc. v. Garlock, Inc., 721 F.2d 1540, 1554 (Fed.Cir.1983), cert. denied, 469 U.S. 851, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984). Thus, the defendant must demonstrate “identity of invention,” which ultimately is a question of fact. 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). When evaluating the merits of the defense, the Court must construe the patent claims in light of the patent specification and prosecution history, and if possible, the claims should be construed so as to sustain their validity. ACS Hosp. Systems, Inc. v. Montefiore Hosp., 732 F.2d 1572, 1577 (Fed.Cir.1984); see, e.g., United States v. Adams, 383 U.S. 39, 49, 86 S.Ct. 708, 713, 15 L.Ed.2d 572 (1966) (claims should be construed in light of the specifications with a view to ascertaining the invention). a. Hirsch ’211 It is the defendant’s contention that claim 4 of the ’211 is anticipated by the Strekopytov ’643 (the UTL-70). Although the Court has had the benefit only of hearing the testimony of the plaintiff’s witnesses, particularly USSC’s expert, Mr. Noiles, it is clear from a review of all the evidence that claim 4 differs in at least two significant respects from the reference asserted by the defendant. First, the defendant has attempted to draw an analogy between the lugs disclosed in the ’643 and the rails of the ’211. The lugs of the ’643 might be called “rails,” but they were neither intended nor constructed as such as that term is used in claim 4. Rather, the lugs were designed to snap into, and be received by the L-shaped slots. These slots bear no relation to the grooves that serve as guides on the frame of the ’211, nor do the lugs bear a significant relation to the ’211 rails, which extend the length of the magazine. Another consequence of the lug and slot construction of the ’643 is the necessity to disassemble in order to reload. This is a significant difference from the practice and teaching of claim 4. The second distinguishing feature of claim 4 that defeats the anticipation claim is the alignment and retention pin. A fair reading of both claim 4 and the specifications make it clear that the pin of the ’211 fits snugly into the corresponding aperture of the cartridge and aligns the cartridge with the anvil. The same cannot be said of either the '643 or the UTL-70. In neither does the pin fit snugly. Instead, the shape of the cut-outs does not permit a snug fit for the pin and does not permit an alignment function in substantially the same way as the ’211. This especially is true of the ’643 itself, which teaches that the pins are at ninety degree angles to the instrument frame. The uniqueness of the teaching of claim 4 is the precision and ease of insertion and alignment of the cartridge. Once the rails of the cartridge are slid along the length of the receiving grooves, and the pin is snugly inserted, the user is assured of maintaining the proper alignment. The same cannot be said of either the ’643 or the UTL-70. b. O’Dea ’863 The defendant next contends that the disclosure of a stapling cartridge containing pusher fingers separated from a pusher rod is anticipated by both the American Vascular Stapler and Mallina’s article in the Scientific American. The analogy attempted to be drawn by the defendant between the bushing assemblies in Mallina’s work and the cartridge of the ’863 is not consistent with the teachings of the ’863 or the prior art references. The primary feature of the invention disclosed by the '863 is a disposable unitary staple cartridge with internal drive members. The ’863 cartridge is a self-contained unit that easily is inserted in and removed from the instrument. On the other hand, both prior art references teach a relatively intricate procedure for assembly and disas-sembly of the various components of the bushings, none of which is capable of performing the necessary function alone. Moreover, Mallina’s ’654 was cited during the prosecution of the ’863 and was a prototype of the vascular stapler marketed commercially. The Examiner did not find the ’654 to render the ’863 unpatentable. The language of the ’654 makes clear that a “semi-cylindrical staple bushing half” is not complete without the second staple bushing half, and cannot perform a function analogous to that of the cartridge taught by the ’863. The teaching or specifications of the ’654 in this regard are no different from that of the commercial stapler. Thus, it is clear that the assembly and operation of a bushing half does not at all anticipate the '863. It also is interesting to note that all the vascular staplers in evidence employ pusher fingers separated from the pusher rod, but no one, including Mallina during his work on linear staplers, developed a unitary cartridge similar to the one taught by the ’863. The defendant also argues that claim 9 of the ’863 is anticipated by the Hirsch '211. Claim 9, which is set forth in the margin, has not been asserted by the plaintiff in this action. In particular, the defendant contends that claim 9, in which the shape of the staple slot is defined, reads on the slot shape of the ’211. When evaluated in conjunction with the figures and specification, the Court cannot conclude that the defendant has met his burden. For instance, the groove in the slot on the O’Dea differs slightly in size and placement from that in the ’211, and the staple in the ’211 touches one of the walls of the slot, while the staple in the ’863 is spaced from both walls. The effect of the differences of the groove are more significant than the differences in their appearance, in so far as the design of the ’863 is more apt to prevent the staple from extruding backwards into the cartridge instead of following through the anvil. Also probative of the failure, on this record, of the ’211 to anticipate the ’863 is the fact that the same Examiner had under review both applications at the same time. Cf. Kimberly-Clark Corp. v. Johnson & Johnson, 745 F.2d 1437, 1455-57 (Fed.Cir.1984) (no fraud for failure to disclose a prior art reference during the prosecution of a patent where, inter alia, the patent examiner had been the examiner for the prior art reference). c. Green ’533 Claim 22 of the ’533 discloses a bi-level groove that extends into the surface of the anvil. The upper level, or portion, gradually slopes into the lower portion, and also flares into the “working surface” of the anvil — the flat, planar surface into which the grooves are carved. While the upper portion guides the staple, the lower portion has a steeper slope engineered to form the B-shape staple. The defendant claims that the invention of the ’533 lacks novelty because it was anticipated by the McGill ’316. Figures 12 and 13 of the ’316 paper stapler patent show a cross-section of an anvil groove. The defendant contends that the walls of the anvil groove depicted are vertical, but flare outwardly at top. The language of the patent that corresponds to the two figures states: “The ends of the cross-groove ... of the anvil-plate are represented in the drawings flaring outward as well as upward. The object of their outward flare is to overcome any slight displacement of the staple-shanks in passing through the articles being bound.” Def.Ex. 1724, at 3. The material differences between claim 22 and the prior art reference are several. First, although the figures in the ’316 are not particularly clear, close inspection of the patent, illuminated by the direct and cross-examination of the plaintiff’s expert at trial, reveals a groove flared only at each longitudinal end of the groove, and those flared portions extend all the way to the bottom of the groove. So, there are no flares in the same place as the vertical walls, whereas the ’533 has the flared portion leading only into, or as far as, the vertical walls of the lower portion. Second, the ’316 discloses a staple forming groove with an entirely flat bottom, which is not capable of bending the staple upward into the B-shape as disclosed in claim 22. Thus, although the ’316 discloses flares to control displaced staples, it does not disclose a two stage construction that first aligns, then controls the bending up of the staple. Third, claim 22 discloses a “working surface” of its anvil that serves to compress and grip the tissue prior to, and during the stapling procedure. The ’316 anvil slopes from one level to another, and does not appear to be capable of performing this function in substantially the same way, if at all. Before and during trial, it appeared that the defendants were asserting other prior art references, including wall sockets and funnels, as having anticipated the ’533, but the defense has failed adequately to assert those references in the post-trial findings and conclusions. Not only has the defendant failed to meet his burden of proving those claims of anticipation, but they are deemed abandoned on this record. Of particular note, however, is the defendant’s assertion at trial of the Cavanagh '331 paper stapler. The ’331 discloses an anvil construction typical of most paper staplers in that the sides of the groove taper downward and inward to the bottom of the groove, and its bottom is continuously rounded from the upper face of its anvil at its outer end and inwardly toward the center of the anvil. The Patent Examiner rejected claims 22 and 23 of the ’533 as originally submitted as being fully met by the Cavanagh patent. Amendments to the ’533 eventually were accepted, including one amendment that distinguishes the flares in claim 22 as extending into the groove an amount less than the depth of the groove. Although the Cavanagh patent discloses a tapered groove, it is not akin to the dual portion construction of the ’533, and cannot be said to anticipate the ’533. d. Green ’591 The defendant argues that claim 15 of the ’591 is anticipated by the King ’675, a patent of which Green was a co-patentee. The parties have stipulated that all elements of claim 15 are included in the prior art ’675 except for “the element relating to the longitudinal relationships of the pairs of staple-carrying grooves, the longitudinal relationships of the pusher bar cam surfaces, and the relationship between these relationships.” Plaintiffs Reply to Black-man’s Findings 156-157. Stated more simply, claim 15 of the ’591 discloses a feature that is designed to aid in the reduction in firing forces, which facilitates a smooth ejection force throughout the operation and would result in a decrease in the likelihood of staples binding when fired. The plaintiff contends that it is this feature that distinguishes it from the ’675. One of the ways in which the intended effect of claim 15 is accomplished appears in the assembly of the push bar cam wedges. The assembly embodied in the ’591 is such that the tips of the wedges are not even, while the ’675 teaches that the front end of the push bar cam wedges are even. The interrelationship between the double pushers and the staggered pusher bar assembly in the ’591 results in the staggering of peak staple ejection forces experienced as the pusher cam bar proceeds through the cartridge. The resulting peaks, though more in number, are less in magnitude. A review of the record does not persuade the Court that the ’675 claims a construction that either staggers the ejection forces, or serves substantially the same function as disclosed in the ’591. 2. Obviousness A patent is not valid if “the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” 35 U.S.C. § 103. Obviousness ultimately is a question of law that may be resolved by the Court following a four part factual inquiry that includes: (1) the scope and content of the prior art; (2) the difference between prior art and the claims at stake; (3) the level of ordinary skill in the art; (4) objective evidence of nonobviousness (commonly known as objective considerations or secondary factors) Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 694, 15 L.Ed.2d 545 (1966); e.g., Azko N.V. v. U.S. Int’l Trade Comm’n, 808 F.2d 1471, 1480 (Fed.Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 2490, 96 L.Ed.2d 382 (1987). In the instant matter, the Graham analysis must be applied to the Green ’533 and ’591—the only two patents in suit to which the obviousness defense has been raised. The Level of Ordinary Skill in the Art To ascertain the level of skill in the art, the Court should consider the following factors: (1) the educational level of the inventor; (2) type of problems encountered in the art; (3) prior art solutions to those problems; (4) rapidity with which innovations are made; (5) sophistication of the technology; and, (6) educational level of active workers in the field. Environmental Designs, Ltd. v. Union Oil Co. of Cal., 713 F.2d 693, 696 (Fed.Cir. 1983), cert. denied, 464 U.S. 1043, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984). The patents in suit were developed during the period 1963-66, thus establishing a reference point for determining the level of skill in the art. 35 U.S.C. § 103; see Kloster Speedsteel AB v. Crucible, Inc., 793 F.2d 1565, 1574 (Fed.Cir.1986), cert. denied, 479 U.S. 1034, 107 S.Ct. 882, 93 L.Ed. 2d 836 (1987). The requirements for surgical stapling devices are unique, and the art virtually is sui generis, there having been only approximately two hundred people working throughout the field during the relevant period. Not until the Russian Institute was founded had there been any real development in the art, and many of the devices that benefitted from those developments were not amenable to mass production or widespread use in the modern surgical setting. The hypothetical person of ordinary skill in the art at the time was a model maker working on the development of surgical stapling devices. The background of such a person included at least four to seven years as an apprentice to a machinist, model maker, or toolmaker followed by several years in the surgical stapling field. Thus, although the hypothetical person had relatively no inventive facility of his own, he was capable of solving many of the problems encountered by those using the instruments, and he was aware of many of the developments in surgical stapling that had come before his work. The hypothetical person also may include a designer or one who had had an engineering background and had a background in mechanical arts, drafting and design, or tooling design. The Court also heard evidence regarding the level of skill of many of the patentees of both the patents in suit and the prior art. These inventors, such as Ulrich, Strekopi-tov, and Mallina, though relevant to the determination of the level of skill in the art, exhibited abilities, knowledge, and expertise above that expected of the person with ordinary skill in