Full opinion text
MEMORANDUM AND OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW HARRINGTON, District Judge. This action is for patent infringement under federal law. Subject matter jurisdiction is present under 28 U.S.C. § 1338(a). Venue is proper in this district under 28 U.S.C. § 1400(b). The plaintiff, Spalding & Evenflo Companies, Inc. (“Spalding”) is a Delaware corporation having a place of business in Chico-pee Falls, Massachusetts. Spalding is owner by assignment from the inventor Robert Molitor, an employee of Spalding, of U.S. Patent No. 3,819,768 (“Molitor patent” or “ ’768 patent”) issued on June 25, 1974 and entitled “Golf Ball Cover Composition Comprising a Mixture of Ionic Resins.” (Joint Trial Exhibit (“JTX”) 444). Spalding is a manufacturer and seller of golf balls, golf equipment and other sporting equipment. Defendant Acushnet Company (“Acush-net”) is a Delaware corporation with a usual place of business in New Bedford, Massachusetts. Acushnet also manufactures and sells golf balls and golf equipment. Spalding filed this action on January 15, 1981, alleging that Acushnet infringed claims 2 and 3 of Spalding’s patent for the compositions of golf ball covers. An Answer was filed by the defendant, which included a counterclaim for a declaratory judgment of invalidity of claims 1 through 4 of the Molitor patent and non-infringement. On November 28, 1986, Judge Nelson, to whom this matter was originally assigned, issued an Order of Preliminary Injunction enjoining the infringement of claim 3 of the patent in suit. On March 1, 1988, Judge Nelson transferred the case to this Court. By stipulation of the parties the issues of liability and damages were bifurcated. The liability trial on this matter began on January 7, 1989, and concluded on February 13, 1989. The parties have filed post-trial briefs, and the matter is ready for decision. The Court makes the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). I.BACKGROUND The subject of the suit is a patent for golf balls having covers that include a blend of sodium ionomer and zinc ionomer. Ionomers are commercially available under the trade name SurylnR (“Surlyn”), which is a registered trademark of E.I. duPont deNemours & Company (“DuPont”). The blended or mixed cover of zinc and sodium ionomers gives unexpected distance properties to golf balls when the claimed proportions are present. The claimed invention of the ’768 patent is described in claim 1 as follows: 1.A golf ball comprising a core and a cover, wherein said cover comprises from about 90 to about 10 percent of an ionic copolymer of an olefin having from 2 to 5 carbon atoms and a sodium salt of an unsaturated monocarboxylic acid containing from 3 to 8 carbon atoms and from about 10 to about 90 percent of an ionic copolymer of an olefin having from 2 to 5 carbon atoms and a zinc salt of an unsaturated monocarboxylie acid containing from 3 to 8 carbon atoms. Claims 2, 3 and 4 of the ’768 patent provide as follows: 2. The golf ball of Claim 1 wherein said cover comprises from about 75 to about 25 percent of an ethylene base sodium salt copolymer, and from about 25 to about 75 percent of an ethylene base zinc salt copolymer. 3. The golf ball of Claim 1 wherein said cover comprises from about 55 to about 45 percent of an ethylene base sodium salt copolymer and from about 45 to about 55 percent of an ethylene base zinc salt copolymer. 4. The golf ball of Claim 1 wherein said cover comprises about 50 percent of the sodium salt copolymer, and about 50 percent of the zinc salt copolymer. The following issues were tried to the Court and shall be resolved in turn: 1. Whether the claimed invention of the patent-in-suit was used by others in the United States before the date of the alleged invention. See 35 U.S.C. § 102(a); 2. Whether Spalding’s claimed invention was described in a printed publication more than one year before the application date for the patent-in-suit. See 35 U.S.C. § 102(b); 3. Whether the Spalding invention was sold in the United States more than one year before the patent application date. See 35 U.S.C. § 102(b); 4. Whether the Spalding invention was obvious to a person having ordinary skill in the art. See 35 U.S.C. § 103. 5. Whether the applicant for the patent-in-suit misled the Patent Office with respect to a material reference. See 37 C.F.R. § 1.56. 6. Whether the patent-in-suit particularly points out and distinctly claims the subject matter which the applicant regarded as his invention. See 35 U.S.C. § 112. 7. Whether the specifications of the Spalding patent set forth the best mode contemplated by the inventor for carrying out his invention. See 35 U.S.C. § 112. 8. Whether Spalding’s claims for damages attributable to sales of infringing golf balls are barred due to laches. 1. Historical Background There are three categories of golf balls sold in the United States today: so-called one-piece, two-piece and three-piece balls. A one-piece ball is a single mass with paint on it. One-piece balls are used as range balls and are considered a second-rate ball. Up until 1966 all premium golf balls were of a three-piece construction. The three pieces were: a small center, a long elastic rubber thread wound around the center, and a cover of a thin resilient material. The center is typically a hollow sphere filled with a liquid or paste. The rubber threads are wound around the center at varying tensions. Golf ball manufacturers attempted for many years to perfect a two-piece ball which would eliminate the center core and rubber thread windings which were expensive to manufacture. A two-piece ball has a large solid core and a thin resilient cover just like the cover of the three-piece ball. The cover material used on all golf balls through the mid-1960s was a natural substance extracted from tree sap, known as balata. Balls covered with this natural substance gave golfers a good click and a good feel when hit, and also such balls travel a satisfactory distance. Balata, however, was quite expensive and the ball was easily cut by the average golfer upon being mishit. Balata balls are still used by “low handicap” golfers. In the mid-1960s a number of golf ball manufacturers began experimenting with Surlyn covered golf balls. Surlyn, a trademark name for a patented product invented by DuPont, are plastics called ionomers. Surlyn is less expensive and more durable and resistant to cutting than natural bala-ta. Dunlop Rubber Company, Ltd. (“Dun-lop”), another golf ball manufacturer, acquired a patent on the use of Surlyn in a golf ball cover in 1966. See U.S. Patent No. 3,454,280 (“Harrison patent”). The Harrison patent was invalidated by Dunlop Holdings, Ltd. v. Ram Golf Corp., 188 U.S.P.Q. 283 (N.D.Ill.1974), aff'd, 524 F.2d 33 (7th Cir.1975), cert. denied, 424 U.S. 958, 96 S.Ct. 1435, 47 L.Ed.2d 364 (1976), on the basis of prior use and invention by Metropolitan Golf Ball, Inc. (“Metropolitan”). In the late 1960s, when Spalding came into the market with its first Surlyn covered ball, not only Metropolitan and Dunlop but also Wilson Sporting Goods Co. and Ram Golf Corp. (“Ram”) were experimenting with Surlyn covered golf balls. In 1970 Spalding developed a successful two-piece ball under the trade name “Top Flite.” Until Spalding’s development of the Top Flite, no two-piece ball had seriously impacted the marketplace because the core of the two-piece ball gave a “hard feel” quite unlike the soft and elastic feel of the balata ball to which golfers had become accustomed. The Top Flite which Spalding initially put on the market had a cover made of a single sodium Surlyn 1555. The single sodium Surlyn cover of the two-piece Top Flite ball was found to crack when exposed to or hit in cold weather. In the fall of 1970, Mr. Molitor, then Vice President of Research and Development for Spalding, contacted Roy Kinsey (“Kinsey”) of DuPont for help in correcting the cold-cracking problem with Spalding’s Sur-lyn covered golf balls. Kinsey advised Mr. Molitor to use a zinc Surlyn 1557. There is a factual dispute as to what Kinsey advised concerning the blending of sodium and zinc Surlyns. Mr. Molitor then ordered his assistant, Emil Marciniak, to try a 50/50 blend of sodium and zinc Surlyns and to monitor the test results. On December 28, 1970, Mr. Paul St. Cyr, a chemical compounding technician at Spalding, conducted the test. (JTX 378, p. 58). On February 16, 1971, Spalding solved the cold-eracking problem (JTX 378) and went into production on February 17, 1971 with the Top Flite blended sodium and zinc Surlyn cover. The ball was an immediate commercial success. On February 11, 1972, Spalding, as as-signee of Mr. Molitor, applied to the Patent and Trademark Office (“PTO” or “Patent Office”) for a patent on a golf ball having a cover that included a blend of sodium Sur-lyn and zinc Surlyn. The application for the patent was twice denied by the Patent Examiner, until Mr. Molitor advanced the position that the blended sodium and zinc Surlyns resulted in an additional property; that, not only did the blending of the zinc and sodium Surlyns in a wide range of proportions produce a desired durability and cold-cracking resistance, Molitor explained, but it also increased the distance the ball would travel, referred to as coefficient of restitution, over what would otherwise be predicted. Based on the increase in coefficient of restitution of the blend of zinc and sodium Surlyns over the weighted average of the coefficient of restitution of the individual Surlyns, the patent issued on June 25, 1974. As the term of a patent is seventeen years, the Molitor patent expires in 1991. In March of 1973, while the Molitor patent was still being prosecuted in the Patent Office, Acushnet introduced the DT Tit-leist, a golf ball having a blend of zinc and sodium Surlyns. (JTX 348). On April 13, 1976, Spalding sent a letter to Acushnet complaining that Acushnet was either infringing on the Molitor patent or was engaging in false advertising. (JTX 219). Acushnet then ordered its technical personnel to develop a non-infringing golf ball. Acushnet ceased infringing the Molitor patent by October of 1977. In late 1980, Acushnet introduced the Pinnacle two-piece ball. The Pinnacle had a different formula of blended zinc and sodium Surlyns in the cover composition than did the DT Titleist, which had infringed the Molitor patent between June 25, 1974 and October of 1977. Acushnet continued to produce a blended sodium and zinc Surlyn cover until Judge Nelson, on November 28, 1986, enjoined Acushnet from further manufacture and sale of golf balls having a blended cover of zinc and sodium Surlyns in the proportions set out in claim 3 of the Molitor patent. 2. Technical Background Surlyn is a trademark for part of a class of plastics which are referred to as resins, ionic copolymers or ionomers. An ionomer or ionic copolymer is a compound made up of molecules in the form of long chains, where the chains are joined to each other in certain locations along their length by ionic bonding. A polymer is a chain of molecular units called monomers. A copolymer is a polymer made of at least two different types of monomers. An ionic copolymer, or ionomer, has three constituents: an olefin derived monomer; an unsaturated derived monocarboxylic acid; and an ionic metal salt of the monocarboxylic acid. When a metal salt of an acid forms, the acid is said to be neutralized. Due to the charged nature of metal ions attached to monocarboxylic acid, these metal ions will associate with additional monocarboxylic acid locations on the copolymer chains and then will also bond to other locations. These associations are known as cross-linking. The degree to which the metal ions will bond to other locations on the chain depends on a number of factors, including the degree of neutralization of the acid on the chains, the types of metal ions present, the specific molecules that make up the olefin and the monocarboxylic acids, the length of the chains, and such conditions of polymerization as temperature, pressure and time. In simpler terms, if one takes a chain of molecular units called a monomer and brings it together with a monocarboxylic acid, one gets a substance which is an acid copolymer. Then, if one adds sodium or zinc ions, the acid is neutralized. The resultant properties of the ionomer (the Sur-lyn) are determined by the amount and combination of metal ions used to neutralize the acid. II. VALIDITY When a patent is issued a presumption of validity attaches to it. 35 U.S.C. § 282. This statutory presumption exists for two reasons: (1) grant of a patent is an administrative decision supported by Congress, and (2) the Patent and Trademark Office (“PTO”) has expertise in determining whether the conditions of patentability have been met, and its determination is entitled to deference. The presumption of validity becomes important when an alleged infringer of a patent argues that the patent-in-suit is invalid because the issuance of the patent to the plaintiff by the PTO was erroneous. Section 282 of the Patent Act mandates that the party asserting invalidity carry the burden of proof to establish such error. The Patent Act, and thus the statutory presumption of validity, is derived from Article I of the United States Constitution which grants Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Art. I, § 8, cl. 8. The framers of the Constitution intended to promote the advancement of science and technology by rewarding the creativity and ability of inventors with a grant of a limited monopoly in exchange for the public disclosure of their inventions. The presumption of validity is rebuttable. Courts have interpreted Section 282 as requiring that the patent challenger prove patent invalidity by clear and convincing evidence. See 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); Medtronic, Inc. v. Cardiac Pacemakers, Inc., 721 F.2d 1563, 1567 (Fed.Cir.1983); Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534 (Fed.Cir.1983). This heavy burden of proof is deeply rooted in the nature of the judicial process, for it reflects the deference owed to the considered judgment of an expert, such as a Patent Examiner, skilled in areas of complex and specialized technology. Therefore, with respect to Acushnet’s counterclaim attacking the validity of the Spalding Patent, Acush-net must convince the trier of fact by clear and convincing evidence that the patent is invalid. This burden remains with Acush-net throughout the trial, see e.g., American Hoist & Derrick Co. v. Sowa & Sons, 725 F.2d 1350, 1360 (Fed.Cir.), cert. denied, 469 U.S. 821, 105 S.Ct. 95, 83 L.Ed.2d 41 (1984), and is made more difficult when, as in the case at bar, the prior art relied upon at trial is the same as that which was before the PTO. See Bausch & Lomb, Inc. v. Barnes-Hind/Hydrocurve, 796 F.2d 443, 447 (Fed.Cir.1986), cert. denied, 484 U.S. 823, 108 S.Ct. 85, 98 L.Ed.2d 47 (1987). A. ANTICIPATION Acushnet advances three grounds in support of its argument that the Molitor patent is anticipated under 35 U.S.C. § 102. First, Acushnet contends that the invention of the Molitor patent was placed on sale more than one year prior to the date of the patent application and is, therefore, invalid under § 102(b). Acushnet also contends that the Molitor patent was anticipated by prior art under § 102(b) because it was described in the Harrison patent, a printed publication, more than one year prior to the date of the patent application. Finally, Acushnet contends that three golf ball manufacturers used sodium and zinc ion-omers in golf ball covers before Molitor’s alleged invention and, therefore, the Molitor patent is invalid under § 102(a). 1. Prior Sale Acushnet argues that golf balls having covers containing both zinc and sodium ionomers were produced and sold by others in the United States before Mr. Molitor’s alleged invention on December 28, 1970, or in the alternative, before February 11, 1971, the one-year statutory bar date under § 102(b). Particularly, Acushnet contends and seeks to prove by clear and convincing evidence, Metropolitan used sodium and zinc ionomers in golf balls during the period from 1965 through 1970, as did Ram between August, 1969 and September, 1970, and as did Swift in 1968 and 1969. The essence of a patentable invention is that it is something new. Congress therefore requires novelty as a prerequisite for patentability. See 35 U.S.C. §§ 101, 102. If the alleged invention is already in the public domain, the public would obtain no quid pro quo for the grant of monopoly conferred by the patent. Indeed, the public would be deprived of matter to which it had already had free access. Because of the myriad of circumstances surrounding the development of new ideas, Congress has enacted statutory requirements that define when an idea will be considered patentably new, and what kind of diligence is required in the prosecution of a patent. See 35 U.S.C. §§ 102(a)-(g). The provisions most relevant to the issue of prior use are 35 U.S.C. § 102(a), (b) and (g)- 35 U.S.C. § 102(a) and (g) provide that an invention is patentable unless, before the alleged date of invention of the patent at issue (in this case, December 28, 1970): (1) “the invention was known or used by others in this country ... ”; or (2) “the invention was made in this country by another who had not abandoned, suppressed, or concealed it,” 35 U.S.C. § 102(g). These provisions ensure that only the first inventor will receive a monopoly. If he decides not to seek a patent, the information belongs to the public. With respect to § 102(a), “prior knowledge and use by a single person is sufficient” to preclude patentability. Coffin v. Ogden, 85 U.S. 120, 124, 21 L.Ed. 821 (1874); see also Corona Cord Tire v. Dovan Chemical, 276 U.S. 358, 382-384, 48 S.Ct. 380, 387-388, 72 L.Ed. 610 (1928); Brush v. Condit, 132 U.S. 39, 48, 10 S.Ct. 1, 4, 33 L.Ed. 251 (1889). Section 102(g) precludes patentability if the anticipating work has been reduced to practice and not abandoned, suppressed or concealed. E.I. DuPont deNemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1437 (Fed.Cir.), cert. denied, — U.S. —, 109 S.Ct. 542, 102 L.Ed.2d 572 (1988); Dunlop Holdings Ltd. v. Ram Golf Corp., 524 F.2d at 36-37 (holding that the anticipating use does not have to disclose the nature of the invention in order to invalidate the patent). 35 U.S.C. § 102(b) provides that an invention is not patentable if it was “in public use or on sale in this country, more than one year prior to the date of the application for patent.” 35 U.S.C. § 102(b). The purpose of Section 102(b) is to force an inventor, even if he is the first inventor, to proceed diligently to the Patent Office after a commercial or public use of the invention. In re Foster, supra, 343 F.2d at 987-988. (a) Metropolitan Golf Balls Metropolitan, a small company in California, was the first golf ball manufacturer to make and sell Surlyn covered golf balls. Dunlop Holdings, Ltd. v. Ram Golf Corp., 188 U.S.P.Q. at 386-88 (invalidating Dun-lop’s Harrison patent due to Metropolitan’s prior use). Metropolitan was producing golf balls from 1965 through as late as 1973. Metropolitan’s President, Robert Wagner, testified in the instant case by deposition that Metropolitan blended different kinds of Surlyn for golf ball covers prior to 1970. The following nine golf balls allegedly originating with Metropolitan were introduced in evidence as prior art: * Hays (DTX 158-160) * Hilton Insignia (DTX 150-153) * Avnet Transitron (DTX 154-157) * Beverly Hilton (DTX 144-146) * Westinghouse (DTX 147-149) Daco (DTX 141-143) * Ray Valind (DTX 164-166) * Carlson’s (DTX 167-169) Byron Nelson (DTX 171-173) All except the Daco and the Byron Nelson were submitted as anticipating prior art. The covers of each golf ball were tested by an independent laboratory, Springborn, in a proceeding monitored by Spalding’s trial expert. Acushnet contends that Spring-born’s atomic absorption tests demonstrated the presence of both zinc and sodium in all of the covers except the Daco ball. Acushnet further contends that Spring-born’s infrared spectroscopy tests confirmed that zinc and sodium were present in the carboxylate, or salt of the acid form, and, if Springborn’s infrared spectra is accepted by the Court, all the golf balls contained the appropriate olefin and acid. Spalding contests the accuracy of Spring-born’s infrared spectra and atomic absorption tests and contends that Acushnet has failed to prove by clear and convincing evidence that any of the Metropolitan balls has the limitations to the relative amounts (percentages) of the sodium and zinc ionic copolymers in its golf ball covers as set forth in the claims of the Molitor patent. Acushnet contends that variations as to the relative amount of ionic copolymers in the cover imposes no boundaries under the Molitor patent on the amounts or sources of zinc, sodium, olefin or acid in the cover. The alleged Metropolitan balls were admitted in evidence in two sets; each set will be individually addressed. The first set consists of the last three balls designated in the list above: the Byron Nelson, the Carlson’s and the Ray Valind. The second set consists of the first six balls designated in the list above. For the reasons set forth below, the Court rules that the defendant has not proved by clear and convincing evidence that any of the golf balls admitted in evidence were Metropolitan golf balls in use prior to February 11, 1971, nor that they were in existence prior to December 28, 1970. Therefore, the Court does not discuss the infrared spectra and atomic absorption tests or interpret the construction of claims 1-4 for the purpose of determining whether the alleged Metropolitan balls invalidate the Molitor patent under § 102. (1) The First Set The first set of the alleged Metropolitan balls (the Ray Valind, the Carlson’s and the Byron Nelson) was presented by Metropolitan’s President Wagner to Barbara Moore of Acushnet. Mr. Wagner did not testify at trial. His deposition was taken on November 23, 1981, and was admitted in evidence during the trial of this matter. Acushnet offers Wagner’s testimony to establish that the first set of alleged Metropolitan balls admitted in evidence were Metropolitan balls manufactured before February 11, 1971. Although unsupported oral testimony can be sufficient to establish prior use, it must be regarded with suspicion and subjected to close scrutiny. E.I. duPont DeNemours v. Berkley & Co., Inc., 620 F.2d 1247, 1261 (8th Cir.1980). I do not find Wagner’s testimony credible as to the date the first set of Metropolitan balls was manufactured. Mr. Wagner was initially unable to recall the date the Byron Nelson ball or the Carlson’s or Ray Valind balls were manufactured. His memory had to be refreshed by a note he had made within two months of the deposition question and prepared in contemplation of this litigation. In particular, the questioning went as follows: Q. Does Byron Nelson associate with a year, in your mind? A. Not any particular year. Q. I show you this hand note [DX 163] and ask you if you can identify this, sir, this handwritten note. A. Yes. It’s my writing. Q. Does that refresh your recollection as to the bracket of time within which the golf balls you presented to Ms. Moore were manufactured? A. Yes. Q. And what are the years given? A. Between 1965 and 1970. Q. I show you now two envelopes which contain, as far as cover is concerned, three quarters of a golf ball each with pictures, and I ask you as to whether those are golf balls which you provided Ms. Moore on a previous occasion. A. Yes. That’s true. Q. And looking at the one which you now have in your hand, does that bear any identifying marks? A. It has the name Ray Valind. Q. Mr. Wagner, can you identify Ray Valind for us? A. He was a personal friend he [sic. I] had been acquainted with for many years. Q. And did you make that golf ball for him? A. Yes, we did. Q. And is that also a ball which was manufactured sometime between 1965 and 1970? A. Yes, it is. [Wagner T.T., Vol. X, p. 37, In. 12 to p. 38, In. 5.] Q. Mr. Wagner, I show you three pictures of a ball and you have seen the ball in question, have you not? A. That is true. Q. And is that a ball manufactured by Metropolitan personalized with the name Carlsons? A. That’s true. Q. Was that similarly manufactured by Metropolitan during the same time frame, that is 1965 to 1970? A. Yes, it was. [Wagner T.T., Vol. X, p. 38, In. 12-24.] Although there is nothing impermissible in the manner in which Wagner’s memory was refreshed, see Fed.R.Evid. 612, the trier of fact may consider its effect on the testimony’s accuracy and credibility. The following testimony on cross-examination corroborates that the note was made after Wagner had been contacted by Acushnet's counsel: Q. ... Then subsequently you testified after being shown a note, do we have that? Exhibit 9. MR. McANDREWS: Do you know what exhibit it is? MR. REGAN: Not off the top. MR. POCHOPIEN: Defendant’s Exhibit 163. Q. I believe that you then believe that it was actually made between 1965 and 1970, do you recall that testimony? A. Yes. Q. Having had your recollection refreshed by this note, could you tell us the circumstances under which this note came into being? A. I’m not exactly sure where it came from. Obviously, I wrote it and it’s from my desk pad. I believe I gave it to Barbara or sent it to Barbara along with some golf balls. Q. Do you remember when you wrote it approximately? A. A month ago, six weeks ago. MR. McANDREWS: And the date of the deposition is November 23, 1981. Q. Somewhere in the last two months? A. Oh, yes. [Wagner T.T., Vol. XIV, p. 14, In. 7 to p. 15, In. 9.] There is nothing impermissible about the manner in which the note was used to refresh Mr. Wagner’s recollection. The note, however, was prepared about six weeks prior to the taking of Wagner’s deposition, concerning events which occurred more than ten years previous thereto and had to be used to refresh his recollection very shortly after he wrote it. This detracts immeasurably from the witness' credibility. The note, moreover, had first been written after contact with counsel involved in this litigation. While this is not improper, it does lessen the weight which I, as the trier of fact, ascribe to Wagner’s testimony as to the dates of manufacture of the first set of Metropolitan balls. Not only was Wagner’s recollection in need of refreshing, but his examination was excessively leading: Q. Over what period did you manufacture those balls for Northwestern? A. You’re speaking of the ones with surlyn covers? Q. Yes. A. From 1965, ’66, ’67, ’68, ’69 and some after ’70, ’71, ’72 possibly. Q. How about 1973? A. It’s possible. Q. Do you know whether or not during that period the surlyn balls were made with a Byron Nelson stamp on them? A. I’m sorry? Q. Do you know whether during that entire period Northwestern balls were made by Metropolitan with a Byron Nelson stamp on them? A. Yes, that’s possible. [Wagner T.T., Vol. XIV, p. 11, In. 12 to p. 12, In. 4.] In sum, then, the Court was presented with a witness who did not appear at trial. While his testimony remains relevant and admissible under Fed.R.Evid. 804(b)(5), the Court was nonetheless unable to examine his demeanor on the witness stand. Moreover, the direct examination of Wagner was leading and was influenced by a note prepared in contemplation of this litigation. Therefore, I find that Acushnet has not proved by clear and convincing evidence that the Ray Valind and Carlson’s balls were manufactured prior to February 11, 1971. (2) Second Set The six golf balls constituting the second set of alleged Metropolitan balls were selected from a display case that was removed from Metropolitan’s office and put in storage in 1969. Wagner admitted that he did not know whether anybody had added to, subtracted from, or changed any of the balls during the period of 1969 until 1981. [Wagner T.T., Vol. XIV, p. 16, In. 5-9], Metropolitan was making golf balls in 1971, 1972 and 1973. Golf balls are fungible products. It is possible that the second set of Metropolitan balls was made between February 11, 1971 and 1981. Therefore, Acushnet has not proved by clear and convincing evidence that the second set of alleged Metropolitan golf balls were made before February 11, 1971. (b) Swift Golf Balls In the late 1960s Swift was a manufacturer of range golf balls. Between 1967 and 1969 Harry LaTowsky (“LaTowsky”) worked for Dupont, selling Surlyn to the golf ball industry in the Northeastern part of the United States. Mr. LaTowsky testified that he received two or three dozen golf balls from Mr. Robert Berman (“Ber-man”) of Swift with no restriction of confidentiality or use, and that he played with several of these balls on golf courses in New Jersey. LaTowsky testified that he recommended to Mr. Berman that he blend zinc and sodium Surlyns to inhibit cold-cracking of the golf ball covers, and that the Swift balls in evidence were examples of that work. Twelve golf balls allegedly originated with Swift, of which ten were tested for their cover content. In particular, LaTow-sky balls 1-6 (DX 116-121 (covers), and (DX 126-131) (cores)) and HL -1, -2, -3 and -4 (DX 122-125) were tested for their cover content. The remaining two balls allegedly originating with Swift (DX 133, 134) were allegedly sent to Acushnet’s counsel. Acushnet contends that its atomic absorption and infrared spectroscopy tests on LaTowsky balls 1-6 and its spectroscopy tests on HL 1-4 shows the presence of zinc and sodium carboxylic acid salts in LaTow-sky balls 1-5, and in HL-1, HL-2 and HL-4; Acushnet also claims that these tests show that the balls contained olefin and acid so as to make them fall within claims 1-4 of the Spalding patent. No tests were run on the two balls allegedly sent to Acushnet’s counsel (DX 133 and 134), and for this reason the Court finds that they have not been shown to anticipate the Molitor patent. For the reasons stated below, the Court rules that Acushnet has failed to prove by clear and convincing evidence that the alleged Swift balls designated LaTow-sky 1-6 and HL 1-4 anticipate the Molitor patent. The alleged Swift balls designated HL 1-4 were subjected to infrared spectroscopy tests but were not subjected to atomic absorption tests. The Court finds credible the testimony of Spalding’s expert Dr. William Risen that one cannot rely on infrared spectroscopy tests alone to demonstrate the presence of sodium and zinc in the cover composition. (Risen T.T., Vol. XX, p. 59-61). Even Acushnet’s expert Dr. Stewart Cooper testified as to the importance of having an atomic absorption analysis: However, I think a more definitive analysis of something like a golf ball cover should rely on more than just the infrared signature. I would like to see, for example this coupled to atomic absorption data that would look for the various cations that could be in the system. (Cooper T.T., Vol. XVII, p. 205, In. 11-16). Therefore, the Court finds that Acushnet has not met its burden of proving by clear and convincing evidence that HL 1-4 anticipate any of the claims of the Molitor patent. The Court finds credible Mr. LaTowsky’s testimony that he received golf balls from Swift during late 1967 or early 1968. Mr. LaTowsky testified that in 1986 he sent five of the alleged Swift golf balls to Dun-con Pollitt (“Pollitt”) of the Yardly Golf Ball Company and that he sent four of the alleged Swift golf balls to James Hansber-ger (“Hansberger”) of Ram. Mr. Pollitt and Mr. Hansberger had contacted LaTow-sky in connection with ongoing litigation between Spalding and Ram. Mr. Pollitt was working as a consultant with Ram to investigate prior use of zinc and sodium in golf ball covers. I find that Acushnet has not proved by clear and convincing evidence that the balls Mr. LaTowsky received from Swift in 1967 or 1968 are the same balls he sent to Mr. Pollitt, Mr. Hansberger and Acushnet’s counsel some eighteen years later. Some of the golf balls were kept in a number of old golf bags and some were kept in a large container. Mr. LaTowsky testified that he, his wife and children had access to the family’s golf bags and golf balls and that the Swift balls were played. Moreover, as the following trial testimony demonstrates, it is likely that some of the Swift balls may have been lost through the years; Q. It was also not unusual for you to grab any golf balls that were available and play them when you or your wife were going to play golf; isn’t that correct? A. Actually, these golf balls, since they’re not identified, they’re not pointed, I would not have used these golf balls in any tournament play or any perhaps social play where I wanted to score well. Q. But you did use them? A. I used them back in the earlier days when I was first involved in the golf ball development program. Q. What do you mean by “earlier days?” A. Back when I was given the golf balls in the late ’60s. And I put them aside, and I have a number of golf balls that I use just for you might say hitting across long water holes or things like that, and I figure I might lose them that way and might as well keep them for that application anyway. Q. And your wife had access to these golf balls, didn’t she? A. Yes, but I don’t think she would have used them. Q. When you play golf, are you like most, you lose one and you’ll pick up a golf ball along the way? A. Yes. Q. And you returned to your home and you found five balls in a miscellaneous golf bag of old ones, did you not? A. Yes. Q. What’s a miscellaneous bag? A. At that time I think we had two old ones and two newer bags, and as I say, we had a collection of old irons and old woods that my father had retired from the game and had given me some of his old clubs, and I have four children, a couple of them who play golf, so we generally don’t throw things out of that nature. We figure somebody will be able to use them at one time or another. Q. Which one of the miscellaneous bags did you find the golf balls in? A. I don’t recall. Q. Was it one that one of your children used? A. I don’t recall. In addition, although as a matter of law the alleged Swift balls were authenticated and admitted in evidence without objection, I am unconvinced as the trier of fact that the chain of custody proven by Acushnet constitutes clear and convincing evidence that the balls sent by Mr. LaTowsky to Mr. Pollitt, Mr. Hansberger and Acushnet’s counsel are the same balls admitted in evidence at trial; Q. Now, I’m going to show you what have been marked for identification— MR. REGAN: And which I will not offer at this time, your Honor, a series of plastic bags which — two sets, one series runs from Defendant’s Exhibit 116 through and including Defendant’s Exhibit 121, and I’ll represent to the Court that what are in those bags are pieces of the cover of some balls that have been marked as Latowsky 1 through 6 balls, and also a second series have to do with centers of balls, two-piece centers, which run from Defendant’s Exhibit 126 through 131. Q. Now, are you able in the form in which they’re in front of you, Mr. La-towsky, to identify those balls as the ones that you gave to either Mr. Pollitt or Mr. Hansberger? A. As seen here, I would find it hard to identify them. [LaTowsky T.T., Vol. VIII, p. 61, In. 5-22], Accordingly, LaTowsky could not identify the balls designated LaTowsky 1-6 as the balls he gave to either Mr. Pollitt or Mr. Hansberger, competitors of Spalding. Consequently, these balls and the evidence associated with them are given no weight. In addition to the lack of specific identification of the balls designated “LaTowsky 1-6,” Mr. LaTowsky’s correspondence indicates that he had problems identifying the origin of the balls that he later testified originated with Swift. In particular, Mr. LaTowsky’s correspondence, which preceded his trial testimony by two and one-half years, indicates that as of July 3, 1986, he did not know whether he had received the alleged “Swift” golf balls from one or more of four designated companies: ... I was able to locate five such golf balls that would have been given to me by one or more of the golf ball companies that I was working with during the 1967-69 period including Swift, Acush-net, Uniroyal and Plymouth. (PX 38). Eleven months later, and after having spoken with Acushnet’s counsel, La-Towsky still was unsure who produced the balls that he sent to Acushnet’s trial counsel and he speculated as to their origin: There is no identification as to which firm produced these. It might have been Swift though. (PX 44, ¶ 3). Accordingly, based on my observations of LaTowsky’s demeanor and the incredibility of much of his testimony as well as the expert testimony of Risen and Cooper, the Court rules that the alleged Swift golf balls do not anticipate the Molitor patent, (c) The Ram Balls Acushnet advances two propositions to support its contention that Ram manufactured golf balls prior to 1970 which were within Claims 1 through 4 of the Molitor patent: (1) the lab notebook pages of Ram (DTX 3) to support the testimony of Mr. Terry Pocklington (“Pocklington”) and Mr. Hansberger that Ram blended sodium and zinc Surlyns; and (2) evidence that Ram produced an all zinc Surlyn (8104) golf ball cover which contained under four percent (4%) by weight of the pigment SU-53, which Ram contends contained four parts sodium Surlyn 1559. I find that Mr. Pocklington, an employee of Spalding’s competitor Ram, has an interest in the outcome of this suit. This interest is demonstrated by Ram’s entering into a “Final Judgment on Consent,” wherein it admitted infringement of the Molitor patent and was enjoined from further infringement. DTX 3, the lab notebook pages of Ram, does not support Mr. Pocklington’s conclu-sory answers to leading questions (T.T., VII, pgs. 124, 209) indicating that Ram blended sodium and zinc Surlyns during the 1967-1970 period. The lab notebook suggests that Ram’s blending was entirely of sodium Surlyns. Mr. Pocklington did not know which Surlyns he blended (T.T., VII, pgs. 124-126, 202) nor did he know whether he sold any balls which contained zinc and sodium Surlyn blended covers. (T.T., VII, pg. 125). I find by clear and convincing evidence that during the period 1967-1970 Ram manufactured and sold golf balls covered with sodium Surlyn, type 8044, in 1967; balls covered with sodium Surlyn, type 8077 (now designated 1559), in 1968; and balls with a blended cover consisting of 96 parts zinc Surlyn (8104), four parts sodium Sur-lyn (1559) and two parts titanium dioxide, in early 1970. This blend of zinc and sodium Surlyns is the only such blend established by clear and convincing evidence. This last composition is an all-zinc Surlyn (8104) golf ball cover having SU-53 added as a pigment. The SU-53 contained the four parts sodium Surlyn. Because Ram’s 1970 golf ball has only four parts sodium Surlyn in a pigment blended with 96 parts zinc Surlyn, it does not incorporate the express limitations of the Spalding patent regarding the relative amounts of the ionic copolymer. Mr. Hansburger, the President of Ram, testified by deposition. His testimony added nothing to the testimony of Mr. Pock-lington. He said that he “believed” that Ram had blended zinc and sodium Surlyns in 1966 and 1967 and that there would be some indication of that fact in DTX 3. (Vol. IX, pgs. 158-159). But Mr. Hansbur-ger conceded that DTX 3 did not reflect that there had been any blend of zinc and sodium Surlyns (Vol. IX, pgs. 162-163, 166), and that the only blend of zinc and sodium Surlyns that he specifically knew of was the 96 part zinc Surlyn, four part sodium Surlyn and two part titanium dioxide contained on the cover of the 1970 ball discussed above. (Vol. IX., pgs. 163-164; Vol. X, pgs. 17-21). Therefore, I find that Ram golf balls manufactured prior to February 11, 1971 did not anticipate the Molitor patent. 2. On-Sale Bar Acushnet contends that Spalding placed the Molitor invention “on sale” more than one year prior to February 11, 1972, the filing date of the Molitor patent application. A single sale or offer to sell more than one year before the patent application will bar a patent. In re Caveney, 761 F.2d 671 (Fed.Cir.1985). This statutory bar is absolute and operates even if the sale was only one day before the one-year grace period for filing the patent application. See Buildex, Inc. v. Kason Industries, Inc., 849 F.2d 1461, 1465 (Fed.Cir.1988). To determine if an invention has been “on sale” for the purposes of the statutory bar, see 35 U.S.C. § 102(b), a defendant “has the burden of proving that there was a definite sale or offer to sell more than one year before the application for the subject patent, and that the subject matter of the sale or offer to sell fully anticipated the claimed invention or would have rendered the claimed invention obvious by its addition to prior art.” UMC Electronics Co. v. United States, 816 F.2d 647, 656 (Fed.Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 748, 98 L.Ed.2d 761 (1988). If Acushnet can make a prima facie showing that the invention was “on sale” before the statutory bar date, then Spalding must “come forward with an explanation of the circumstances surrounding what would otherwise appear to be commercialization outside the grace period.” Id. The Court applies the following three-part test to determine if an invention has been “on sale” for purposes of the § 102(b) bar: (1) the complete invention claimed must have been embodied in or obvious in view of the item offered for sale; (2) the invention must have been sufficiently tested to verify that it is operable and commercially marketable; and (3) the sale must have been primarily for profit rather than for experimental purposes. R. Har-mond, Patents and the Federal Circuit, § 3.4(c) (1988); Barmag Barmer Maschinenfabrik AG v. Murata Mach. Ltd., 731 F.2d 831, 837-38 (Fed.Cir.1984). One circumstance which has been found to constitute an offer to sell is the sending of a prototype or sample to a customer to elicit a sale. In re Caveney, 761 F.2d at 675. Acushnet alleges that Spalding offered for sale a blended zinc/sodium Surlyn covered golf balls at the January, 1971 PGA show in Florida. The evidence, however, is uncontradicted that Spalding did not send blended Surlyn covered balls to the PGA trade show in January of 1971. Nonetheless, if Spalding took offers for sale from even one customer for either immediate or future delivery of a golf ball which had a cover that was composed of matter that brought the ball within the scope of claims 1-4 of the Spalding patent, the patent is invalid. Acushnet contends that the totality of circumstances surrounding the taking of orders for the Top Flite constitutes clear and convincing evidence of an offer to sell golf balls with a zinc/sodium blended cover. See King Instrument Corp. v. Otari Corp., 767 F.2d 853 (Fed.Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1197, 89 L.Ed.2d 312 (1986). Acushnet alleges that when Spalding took orders from customers at the January, 1971 PGA show, those orders must have been for blended Surlyn covered golf balls. In November of 1970, a “panic situation” existed at Spalding as complaints from customers and Spalding sales people concerning the cold-cracking problem escalated. Spalding moved as quickly as possible to solve the cold-cracking problem. On December 24, 1970, Spalding’s top management decided to quarantine all current inventory of the all-sodium Surlyn Top Flite balls, halt production, and begin a major testing program to solve the cold-cracking problem immediately. (JTX 336, 431). Spalding realized that most northern customers who placed orders at the January, 1971 PGA show expected delivery by April of 1971. The factual issue to be resolved is whether Spald-ing went to the PGA show in January of 1971 with the intention to offer for sale and delivery a golf ball with a blended sodium/zinc Surlyn cover. The issue is not whether Spalding went to the show intending to offer for sale and delivery the all sodium Top Flite ball. Full-scale production of the blended cover ball commenced on February 17, 1971. (JTX 338 and 346). Perhaps if Spalding had been unable to reduce to practice a blended Surlyn golf ball in time for April delivery to Northern pro shops it might have released from quarantine its all sodium Surlyn balls. The Court, however, need not determine what Spalding would have done if it had been unable to resolve the cold-cracking problem. It is not a violation of 35 U.S.C. § 102(b) to sell golf balls for future delivery without knowing what the cover composition of those golf balls will ultimately be. The Spalding lab notebook (JTX 378) indicates that the cold-cracking problem was solved on February 16, 1971. (JTX 378 at Notebook p. 60; Molitor T.T., Vol. 3, p. 15; St. Cyr T.T., Vol. X, p. 87). Therefore, I find that Acushnet has not proved by clear and convincing evidence that Spalding placed the Molitor invention “on sale” at the PGA show in January, 1971 or any time prior to the statutory bar date of February 11, 1971. Prior to February 11, 1971, Spalding was selling whatever would be the best quality golf ball it would be able to produce by April of 1971. 3. The Harrison Patent Acushnet contends that the Harrison patent issued to Dunlop on July 8, 1969, anticipates the Molitor patent because the alleged Molitor invention was described in Harrison, a printed publication, either (1) prior to the claimed date of invention of the patent-in-suit, § 102(a), or (2) one year prior to the filing date, § 102(b). The anticipation doctrine ensures that no patents are issued the effects of which “are to remove existent knowledge from the public domain or to restrict free access to materials already available.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., — U.S. —, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989) (quoting Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966)). Anticipation requires disclosure of each of the elements of the claimed invention or their equivalents in a single prior art reference. W.L. Gore & Associates 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) (emphasis added). It is of no consequence to the analysis of anticipation that those who caused the invention to be published before the bar date did not appreciate newly discovered properties inherent in existing prior art. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 777 (Fed.Cir.1985). The Harrison patent teaches a golf ball cover composition (Composition H) produced by mixing under specified conditions eighty-two (82) parts by weight of a copo-lymer, five parts by weight of a zinc oxide (ZnO) and thirteen (13) parts by weight of a titanium dioxide (TÍO2). (JTX 26, Col. 4, In. 54-65). According to the defendant, Harrison’s patent reported that zinc oxide was an active filler that served as a cross-linking agent when combined with ethylene/monoearboxylic acid ionic copolymer under the conditions used to make a golf ball cover. (JTX 26, Col. 1, In. 52-61; Col. 2, In. 9-14, 32-34, 49-54). Acushnet argues that the process of making the golf ball cover taught in Harrison will cause the metal ions to move throughout the ionic copolymer when it is mixed and heated, so that when an ionic copolymer containing one type of metal ion is heated and mixed with another type of metal ion, both will move throughout the copolymer and react with the acid groups as cross-linking agents. Anticipation by a printed publication occurs when the elements of the claimed invention are contained within the four corners of a single prior art reference. Lewmar Marine, Inc. v. Barient, Inc., 827 F.2d 744, 747 (Fed.Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 702, 98 L.Ed.2d 653 (1988). Nothing more (such as experimentation) is required, because the published reference is deemed by law to have placed whatever it contains within the public domain. It is also unnecessary that the prior art inventor have made the anticipating matter. It is enough that the prior art publication was enabling and placed the disclosed matter in possession of the public. Akzo N.V. v. U.S. Intern. Trade Com’n, 808 F.2d 1471, 1479 (Fed.Cir.1986), cert. denied, 482 U.S. 909, 107 S.Ct. 2490, 96 L.Ed.2d 382 (1987). The plaintiff contends that U.S. Patent No. 3,264,272 (“Rees”) (JTX 89), which was the pioneer patent on making ionic copo-lymers of olefin and an unsaturated car-boxylic acid, teaches that metal oxides, such as zinc oxide, are not suitable for making the Surlyn ionic copolymers: Metal compounds ... are generally not suitable in resulting in ionic crosslinks in particular metal oxides because of their lack of solubility and the fact that such compounds form intractable compositions (JTX 89, Col. 6, In. 65-68). According to Rees, a reactive metal acetate can be made from the metal oxide in the reaction mixture by adding “a metal oxide to the base copolymer [and] then add[ing] an acid such as an acetic ...” (JTX 89, Col. 7, In. 10-16). Rees teaches that dissolution, and thus ionomer formation, occurs only after the addition of acetic acid. (JTX 89, Col. 8, In. 48-50). Therefore the Court, as trier of fact, must determine whether the defendants have proved by clear and convincing evidence that the zinc oxide in Composition H does react to form ionic crosslinks in the Composition H golf ball covers to form a golf ball cover of a blended zinc/sodium neutralized ionic copolymer. Acushnet contends that half the zinc oxide filler used in Composition H dissolves, even in the absence of acetic acid, via the remaining acid groups inherently present on the 50 percent sodium neutralized copolymer of ethylene and acrylic acid, further neutralizing the copolymer and producing a compound falling within the claims of the Molitor patent. It is unnecessary, as a matter of law, for Acushnet to have made Composition H in order to prove prior publication under § 102(a). As a practical matter, however, it would be difficult to prove by clear and convincing evidence that zinc oxide would react with ethylene and methacrylic acid, without adding acetic acid, as taught by Rees, unless it were shown that Composition H golf balls had been made. Acushnet attempted to prepare Composition H on two separate occasions. Acush-net failed in both of its attempts, once in preparation of the preliminary injunction hearing and again in preparation of trial. At the preliminary injunction hearing the Master rejected Acushnet’s representation of Composition H because Acushnet had deviated from the teachings and procedures of Harrison. Acushnet again attempted to make Composition H on January 18, 1988 in preparation of trial. (PTX 74). When Acushnet attempted to prepare Composition H on January 18, 1988 (PX 74), it failed to follow the exact teaching of Harrison (JTX 26). Acushnet had rejected a suggestion that the experiment be conducted with Spalding observers present (Berard T.T., Vol. XVII, p. 80, In. 13). Acushnet not only deviated from the chemical and physical characteristics of the copo-lymer described in Harrison, but Acushnet deviated from the heating conditions described by Harrison for the preparation of Composition H. In particular, whereas the copolymer of Composition H contained 9 percent by weight acrylic acid, half of which was in the form of the sodium salt (JTX 26, Col. 4, In. 71-73), Acushnet’s copo-lymer contained 9 percent acrylic acid, only 48 percent of which was in the form of sodium salt. (Cooper T.T., Vol. XVIII, p. 78). Further, whereas Harrison specified a melt flow index of “1.7 grammes per 10 minutes at 190°C” (JTX 26, Col. 4, In. 70-71), Acushnet employed a melt flow index of 1.76 (PX 74) after having rejected in September or October of 1987 the same copolymer backbone with the closer melt flow index of 1.65 (PX 106, p. 10; Berard T.T., vol. XVI, p. 100-101). On the issue of the melt flow of the copolymer that Acush-net used to produce Composition H, Berard was asked the following questions and gave the following answers: Q. And you were only point 05 away back in September, is that correct? Yes or no? A. Yes. Q. So your melt flow index is farther away on January 18th than you were back in September, correct? A. Yes. Q. Now, what did he do with that 1.76 melt flow index blend of copolym-ers? A. He prepared Composition H. Q. All right. Now, yesterday I believe you said that the melt flow index tells you the molecular weight of a polymer, a copolymer, is that right? A. That is correct. Q. So if you vary the melt flow index, you vary the molecular weight, do you not? Yes or no? A. Yes. (Berard T.T., Vol. XVII, p. 32, In. 1-18). Accordingly, not only did the copolymer used by Acushnet in its attempt to make Composition H vary in percent neutralization from the copolymer of Harrison, but it also varied in its molecular weight. In addition to using a copolymer that varied from the teaching of Harrison in percent neutralization and melt index, Acushnet also failed to follow the heating steps recited by Harrison. In particular, the procedure for making Composition H includes two distinct heating steps. The first heating specifies a range requiring that the reactants ZO and TO be mixed in an internal mixer “at a temperature of 120°C to 150°C.” (JTX 26, Col. 3, In. 61). The second heating step uses the word “at” to specify a specific temperature, requiring that the mixture be heated “for a further 15 minutes at 150°C.” (JTX 26, Col. 3, In. 73). Because Harrison specified a range in the first heating step, it is clear that Harrison knew how to specify a range for the second heating step had he wanted to do so. By not specifying a range and by instead carefully selecting the word “at” for the second heating step, Harrison clearly indicated that he intended the second heating to be at 150°C. Notwithstanding the express language in Harrison’s heating steps for Composition H, Acushnet’s heatings deviated significantly during its second attempt to reproduce Composition H. In particular, whereas the first step of Harrison specifies a range of 120°C to 150°C, Acushnet’s ingredients were “mixed” at 320°F, i.e., 161°C per PX 99. (PX 75; Berard T.T., Vol. XVII, p. 40, In. 8-17). This is more than 11°C over the temperature range expressly specified by Harrison. Whereas Harrison’s second heating step specifies “at 150°C,” Acushnet’s second heating step began at the 161°C and continued upward. (PX 75; PX 99; Berard T.T., Vol. XVII, p. 40, In. 15-17). According to Berard’s interpretation of PX 75, Acush-net’s second heating step went to 410°F (205“C) at “the highest” (Berard T.T., Vol. XVII, p. 42, In. 5-6); averaging out to 390°F (198°C) for 10-11 minutes (Berard T.T., Vol. XVII, p. 42, In. 24 to p. 43, In. 22) and 380°F (195°C) for the balance of the 15 minutes (Berard T.T., Vol. XVII, p. 43, In. 2-19). Therefore, based upon Berard’s own interpretation of Acushnet’s temperature profile, Acushnet exceeded the specific 150°C temperature of Harrison’s second heating step by 48°C for 10-11 minutes and by 45°C for the balance of the 15 minute heating step. Based upon Berard’s testimony, Doctor Risen, Spalding’s trial expert, concludes that the temperature profile reported by Acushnet for the second heating step of Composition H is: significantly different from and would lead to a different composition of matter than what is described by Harrison in this description of Composition H. (Risen T.T., Vol. XX, p. 19, In. 16-19; PX 123). Acushnet, however, contends that there is a heat of mixing that occurs and that Harrison does not really mean “at 150°C.” Regarding the meaning of “at 150°C,” Risen refers to Col. 3, lines 7-9 of Harrison, stating: The sentence actually starts in line 7, “The crosslinking agent is usually mixed at about 150 degrees and allowed to react with the copolymer at this temperature for about 15 minutes.” And that doesn’t have anything to do with the mixing machinery as far as I can tell, and it says pretty clearly for 15 minutes at 150 degrees. (Risen T.T., Vol. XX, p. 25, In. 22 to p. 26, In. 4). As to whether Acushnet could have controlled the temperature Risen states: ... the control of temperatures around 150 degrees is a well advanced art. (Risen T.T., Vol. XX, p. 25, In. 5-7). To control the temperature in the second heating step, Acushnet could have started mixing at 120°C and still have been within the range specified by Harrison (Risen T.T., vol. XX, p. 26, In. 9-15): “blend at a lower—slower rate ... and you can cool it.” (Risen T.T., Vol. XX, p. 27, In. 1-8). Acushnet did none of these things. Moreover the internal mixer used by Acushnet had a “water jacket” surrounding it the function of which included “cooling.” As a result of the temperatures utilized by Acushnet during its second attempt to prepare Composition H, Risen concluded that Acushnet prepared a composition that was very different from the Composition H of Harrison. (Risen T.T., Vol. XX, p. 18, In. 12 to p. 19, In. 19). I find, therefore, that Acushnet did not follow the procedures of Harrison. This does not resolve the issue however. I must still determine whether, despite Acushnet’s failure to make Composition H, one of ordinary skill in the art of golf ball technology would have produced a golf ball within Claims 1-4 of the Molitor patent by following the Harrison patent. I find that what Harrison teaches in Composition H is a zinc oxide filled ionomer having crosslinking properties. I find that Harrison does not teach the formation of a blended zinc/sodium ionic copolymer from zinc oxide crystals because only the addition of acetic acid permits the dissolution of the zinc oxide crystals to zinc ions, allowing the zinc ions to exchange for hydrogen ions on the copolymer thereby forming the zinc/sodium ionic copolymer. I find that the zinc oxide crystals do not dissolve solely from the acid groups in the copolymer. Prior to the addition of acetic acid, the copolymer merely attaches to the surface of the relatively large zinc oxide crystals as the active filler taught by Harrison. Therefore, I rule that the Harrison patent does not anticipate the patent-in-suit. B. OBVIOUSNESS Whether a patent is obvious under 35 U.S.C. § 103 is a question of law which is based on factual findings. Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693-694, 15 L.Ed.2d 545 (1966). A party asserting invalidity for obviousness has the burden of proving his assertion by clear and convincing evidence. Railroad Dynamics v. A. Stucki Co., 727 F.2d 1506, 1511 (Fed.Cir.), cert. denied, 469 U.S. 871, 105 S.Ct. 220, 83 L.Ed.2d 150 (1984). Section 103 instructs that an invention otherwise patentable will not be entitled to a patent “if the difference 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.” 35 U.S.C. § 103. In making its factual findings regarding obviousness, a court must consider the following factors: (1) the scope and content of the prior art; (2) the difference between prior art and the claimed invention; (3) the level of ordinary skill in the art; (4) objective evidence of non-obviousness otherwise referred to as “secondary considerations.” Graham, 383 U.S. at 17-18, 86 S.Ct. at 693-694. Such secondary consideratio