Full opinion text
MEMORANDUM OF DECISION YOUNG, District Judge. This case involves United States Patent 4,340,479 (the “Pall patent”) covering a process for preparing hydrophilic polyam-ide membrane filtered media and product, which issued on July 20, 1982 to the plaintiff Pall Corporation (“Pall”). Pall is a New York corporation having a principal place of business in Glen Cove, New York, and offices on Route 25A in Roslyn, New York. Pall was founded in the late 1940’s by Dr. David B. Pall of Roslyn Estates, New York. Dr. Pall is designated as the inventor of the patent-in-suit. The action is brought against the defendant Micron Separations, Inc. (“MSI”), a Massachusetts corporation having a principal place of business in Westborough, Massachusetts. MSI was formed in 1981 when certain employees of a filtration company known as Millipore, specifically James S. Johnson and John M. Greenwood, left that company and, along with Edward J. Ackley, decided to start their own company and enter into competition with Pall, Millipore, and others in the microporous filtration industry. The complaint in this action was filed on May 7,1986. It seeks a judgment that MSI has willfully infringed the Pall patent. The complaint also seeks damages for past infringement and an injunction against future infringement. I. Prior Art A. The general setting. At this juncture it’s helpful to put some matters in perspective. Polymeric membranes are thin, sheet like materials with very small interconnected pores. The pores usually range in size from about one-tenth of a micron to ten microns. The membranes are made from a chemical material that has many thousands of repeating units, a polymer. There are many such materials, many methods for making them into membranes, and many uses for such membranes. Polymeric membranes, in the strictest sense of the word, may be fibrous or non-fibrous. Usually, however, when the term polymeric membrane is employed, the non-fibrous type is meant. Non-fibrous membranes are usually made directly from a solution or melt of the polymer. Fibrous polymeric membranes are made by first converting the polymer into fibers, and then making a thin web from those fibers. Potassium titanate is a good example of a fibrous polymeric membrane. Prior to the development of the Pall nylon membrane, fibrous filter media, made, for example, from potassium titanate or asbestos, were commonly employed as filtration medium. At the present time, the two most commonly used microfiltration membranes are Pall’s nylon membrane and Millipore’s PVDF membrane, both made from non-fibrous polymers. They are employed mainly in the filtration of liquids to remove very small particles, including bacteria, a process known as microfiltration. Typical filtration applications include use by pharmaceutical companies to assure that the drugs they make are free of bacteria contamination, use by electronic companies to purify water for chip manufacture, and use by hospitals to assure that the fluids administered to patients are free from bacteria and other contaminants. Typical biotechnological applications include use in diagnostics to detect the presence of antibodies and the so-called transfer membranes for identification of genetic characteristics. Depending upon their use, polymeric membranes may have a skin on them, or they may be without a skin. Certain processes, reverse osmosis, for example, require the presence of a continuous skin, while in other processes microfiltration, for example, the complete absence of any skin is necessary. Microfiltration is one of the most common applications for polymeric membranes at this time. It is, however, by no means the only application. Membranes are also used in reverse osmosis, electrophoresis, dialysis, electrodialysis, gas separation, and immobilization and transfer of substances. Microfiltration is the regime with pores between about one-tenth of a micron and 10 microns. The most important pore size is .2 micron because this is the pore size that gives the highest flow rates and throughputs consistent with the retention of the approximate .3 micron Pseudomonas diminutia bacteria which is the criterion for a pore size rating equivalent to sterilization. Today commercially acceptable mi-crofiltration membranes are skinless and macrovoid-free and have a narrow pore size distribution which maximizes their efficiency at removing bacteria, and other particulate matter of equivalent size, from fluids. Other uses for microfiltration membranes are now found more and more in the biotechnology area. Polymeric membranes are there employed, for example, to hold certain substances such as antibodies, antigens or other proteins while blood or other body fluids are passed through the membrane. Over the years, many different polymers have been investigated as possible membrane media in a number of different applications. By the late 1970’s, the list included the following, without any attempt to be exhaustive: Polymer Application Cellulose acetate and nitrate including mixtures Electrophoresis Microfiltration Ultrafiltration Reverse Osmosis Gas Separation Cellulose triacetate Microfiltration Ultrafiltration Polymer Application Reverse Osmosis Cellulose acetate/triacetate blends Reverse Osmosis Polyacrylonitrile Ultrafiltration Polyacrylonitrile-polyvinyl-chloride copolymer Mierofiltration Polyamide (incl. various nylons) Mierofiltration Ultrafiltration Reverse Osmosis Immobilizing Medium Polyaryl Sulfone Ultrafiltration Polycarbonate Mierofiltration Reverse Osmosis Electrophoresis Polyester Mierofiltration Polyether Sulfone Ultrafiltration Polyimide Ultrafiltration Reverse Osmosis Mierofiltration Polypropylene Polysulfone Mierofiltration Ultrafiltration Polytetrafluoroethylene (PTFE) Mierofiltration Polyvinylchloride Mierofiltration Polyvinylidenefluoride (PVFD) Mierofiltration Ultrafiltration Dr. Resting Direct Testimony at 7. By 1978, many methods had been investigated for making the polymers mentioned above, and many other polymers not here mentioned in porous membranes. They included: casting membranes from a melt of the polymer; casting from a polymer solution into an evaporative atmosphere; casting from a polymer solution into a nonsol-vent liquid; stretching semi-crystalline films; thermal gelling by decreasing the temperature of the polymer solution; inducing porosity by irradiation of polyester and/or polycarbonate films; binding the polymer into a thin sheet structure by sin-tering. In 1978, the leading manufacturers of mierofiltration media were Pall with its fibrous potassium titanate product, and Milli-pore with its membrane made of a mixture of cellulose nitrate and cellulose acetate. Several other membrane products were on the market, but none had any significant market share. Most, if not all, of the polymeric non-fibrous membranes were made by a process that involved casting from a solution followed by evaporation or quenching in a liquid. Pre-1978 filter media, fibrous and non-fibrous, suffered from one or another of the following deficiencies: brittleness, unless highly plasticized they could not be pleated and incorporated into a cartridge; marginal thermal stability, the membrane shrank excessively while being sterilized with steam; high extractables, the surfactants employed to render the membranes hydrophilic so that they could be used with acqueous fluids and the plasticizers required to permit the membranes to be made into useful products leached out of the membrane while in use; poor solvent resistance, the membranes softened or dissolved when used in certain solvents; limited flowrate, the amount of liquid per unit time capable of flowing across the membranes was limited; limited throughput, the membranes clogged easily and thus had to be exchanged frequently; limited sterilizing ability, the membranes could not consistently produce bacteria-free fluids; poor dimensional stability, the membranes swelled in water; danger of fiber sloughing into the permeate, unless specially treated fibrous materials tend to slough off fibers into the permeate. By 1978, the industry had recognized the desirability for a new type of membrane and had pursued many avenues of reaching that goal. All such attempts had failed. B. The efforts of Paul J. Marinaccio. Analysis starts not with the Pall patent but with the prior art, more specifically, a patent referred to in this lawsuit as the Marinaccio patent. Paul J. Marinaccio was hired as a research chemist by AMF Corporation (“AMF”) to make reverse osmosis membranes. AMF is a large corporation. It has 80 divisions, but has largely centered research and development within AMF itself. Cuno, a subsidiary of AMF, sought to have the A.MF research chemists develop a microfiltration fiber filter. Marinaccio and others commenced work on this project, but Marinaccio serendipitously embarked upon microporous membrane research when it occurred to him as he looked at his polystyrene coffee cup that it might be possible to make microporous membranes out of related materials. Marinaccio thereupon devised an experimental process involving the dissolving of nylon pellets in formic acid which he believed was a breakthrough in that it allowed the rapid manufacture of micropo-rous membranes. In the late 1960’s and early 1970’s when he was performing these experiments, Marinaccio knew that no one else in the industry had such a rapid commercial process. Abandoning their work on the microfil-tration fiber filter, Marinaccio and his colleagues instead devoted their efforts to the development of a microporous membrane. Marinaccio believed that the key to the development of microporous membranes was a device which prevented any air contact during the quench process. He called this aspect of his claimed invention zero quench. The general steps for making mi-croporous membranes were, by the early 1970’s, well known to those skilled in the art of making such membranes. To the extent that Marinaccio’s process incorporates new developments in the art of making microporous membranes, they are developments in the particular materials used and the manner of their use rather than in the mechanical aspects of the membrane process. Marinaccio sought, and received, United States Patent 3,876,738 (the “Marinaccio patent”) dated April 8, 1975. The Marinac-cio patent described the so-called zero quench process for the continuous formation deposit of membrane so as to form large sheets of microporous membranes. Although Marinaccio had obtained a patent on his invention, he had a number of problems within his company. Marinaccio believed that his patented process had significant commercial viability but, as is the plaint of inventors everywhere, he considered himself starved for money and thought that the business leaders at AMF did not support his research efforts adequately. He characterized the microporous membrane research laboratory at AMF as filled with equipment literally held together with wire and tape. Marinaccio, through the use of his invention, was able to manufacture sheets of microporous membrane which looked identical to the naked eye. That process was able to make short runs of .2 micron material. Marinaccio claims that long runs were not made because he did not have the money to develop the machinery capable of making long runs. Marinaccio believed and indeed still believes, that he could have made long runs by his process had he adequately been supported. Marinaccio believed that his only failure was the equipment limitation failure. Mar-inaccio, however, recognized the problems with the long-term reproducibility of the materials formed by his process. He further recognized that the most critical test for microporous membrane is the bacteria retention test and that, in ways that he was never satisfactorily able to explain, various of his prototype production runs failed to meet the bacteria retention test. Marinac-cio ran bubble point tests and flow tests on these materials that he had manufactured and, from those tests, he came to believe that microporous membrane manufactured pursuant to his process was as good for microfiltration purposes as anything then commercially available. A gentleman named Ostricher at Cuno was very enthusiastic about the samples which Marinaccio had produced. Ostricher compared those membrane samples with the standard Cuno counterpart and concluded that the Marinaccio samples were considerably better. The trouble came in the commercialization of the Marinaccio process. Marinac-cio’s concept for the commercialization of his process was to design an idiot-proof process for making membranes; that is, he constantly sought a simple, readily understandable, generally applicable approach. Cuno, at that time, made only unsophisticated paint filters. The chief executive officer of Cuno was one Ray Tritten. Trit-ten’s idea of commercialization of micropo-rous filters was a process that resulted in long runs of membrane sheets. While certain of his subordinates thought that the sheets prepared by the Marinaccio process were good enough for commercial application, Tritten disagreed. The results of tests conducted with tap water made Trit-ten concerned that the filters prepared by the Marinaccio process had a very short life. Marinaccio believed that the. short life showed nothing more than the remarkable benefits to be derived from his filter inasmuch as it filtered everything out of the tap water retaining it on the filter face and quickly clogging the filter. Tritten’s rejection of Marinaccio’s efforts to commercialize the Marinaccio process as set forth in the patent and AMF’s confirmation of that rejection did not daunt Mari-naccio. He continued testing it covertly. Cuno did not sell any' of the rolls of the membrane material developed pursuant to the Marinaccio patent. C. The Marinaccio patent. The Marinaccio patent does not contain any indication that the products obtained by its process are skinless or hydrophilic, as that term is used in the Pall patent. The Marinaccio patent is silent with respect to skinlessness. It comments only that a person of ordinary skill in the art ought recognize that a skin may result on the casting solution and therefore is likely on the final product after quenching. Not only does the Marinaccio patent not claim that the products produced are inherently hydrophilic as that term is used in the Pall patent, it further teaches that the products produced should be “treated with a wetting agent.” The Marinaccio patent teaches that the process does not require special conditions of temperature. The films can conveniently be produced at or near room temperature. In fact, temperature plays an important role in the preparation and casting of a resin to form a membrane. Because of this, Rodney A. Knight, an inventor who assisted Marinaccio in the development of the zero quench process that is referred to in the Marinaccio patent, later came to think temperature was a significant variable in getting exact pore size control but not, thought Knight, absolutely essential to the preparation of the micropo-rous membrane itself. The Marinaccio patent does not disclose that control of the esterification reaction resulting from the order in which the reagents are added to form the casting solution is important and affects the resulting product. The Mari-naccio patent does not indicate any importance in the mixing conditions employed in making the casting resin. The Marinaccio patent teaches that increased porosity is obtained by increasing the polymer concentration to the solution and by increasing the nonsolvent concentration causing the polymer to aggregate. The Marinaccio patent is silent regarding the manner in which the membrane film that is produced is dried. It makes no mention of controlled nucleation. Marinaccio’s patent claims polystyrene as a workable substance. In fact, polystyrene can never be made into a membrane with a zero contact angle which meets the definition of hydrophilic, as the term is used in the Pall patent. Marinaccio did not distinguish between amorphous and crystalline polymers. D.Abandonment by Cuno. Wholly apart from the claimed anticipation of the Pall patent by the Marinaccio patent, MSI here claims that the invention of the Pall patent, the microporous membrane itself, had been reduced to practice by virtue of the rolls of microporous material which Marinaccio produced for Cuno. Pall disagrees, claiming that the Marinaccio efforts were abandoned, suppressed or concealed by not being made public. A brief analysis need be made of this issue. If a prior invention is made public or is used commercially it has not been abandoned. Friction Div. Prod., Inc. v. E.I. DuPont de Nemours & Co., 658 F.Supp. 998, 1014 (D.Del.1987), aff'd, 883 F.2d 1027 (Fed.Cir.1989). The law does not require any disclosure of the actual invention to the public nor any commercial use for an invention to qualify as prior art. Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, 254-56, 86 S.Ct. 335, 337-38, 15 L.Ed.2d 304 (1965). The invention need only benefit the public, that is, it must be reduced to practice. Friction Div. Prod., Inc., 658 F.Supp. at 1013-14. Reduction to practice means something less than commercialization, but requires an exposure of the benefits to the public. Id. An invention is deemed publicly known if the public enjoys the benefits or use of the prior invention. Id.; see also Schreiber Mfg. Co. Inc. v. Soft America, Inc., 704 F.Supp. 759, 762 (E.D.Mich.1989) (“ ‘[P]ublic use’ of an invention under sec. 102[b] is any nonex-perimental use by an inventor or by an individual.... A commercial use by the inventor will bar a patent, even if that commercial use is kept secret_ The determination of whether a ‘public use’ has occurred can only be made upon consideration of all surrounding circumstances”). In the circumstances of this case, the Court finds that the rolls of material made by Marinaccio for Cuno were experimental only, never benefited the public, were never disclosed publicly, and were never in use. Cuno restarted its membrane program in 1978 after seeing a Pall sample. II. The Pall Patent A. The Invention and Patent Application. Turning to the Pall patent, even before Marinaccio’s experiments, Dr. Pall was conducting research on microporous filters made from polymeric materials, including nylon, in the mid- to late-1960’s. He set aside that project in 1969 because he believed developments in other areas were more promising. In mid-1974, Dr. Pall reactivated his research program in micro-porous polymeric membranes. By November, 1974, he made a promising micropo-rous membrane from Nylon 11 and Nylon 612. It’s clear to this Court that in 1975 Dr. Pall tried to design around the Marinaccio patent, just as MSI later tried to design around the Pall patent. Indeed, Pall focused heavy resources on designing around the Marinaccio patent. Unlike MSI, however, Dr. Pall did it successfully. By September 1975 he made a pliant, alcohol-insoluble, skinless microporous membrane from Nylon 66. By November 1975 he had repeated this result on a larger scale. The cases make clear that a patent applicant can be his own lexicographer. Dr. Pall’s patent application reveals that Dr. Pall considered the membrane that he had developed to be naturally hydrophilic, but it is important to remember what Dr. Pall means when he uses the word hydrophilic. Use of the word hydrophilic in the mechanical sciences and in chemistry differs from Dr. Pall’s use of the word. In those industries, a material is thought to be hydrophilic if the contact angle of a drop of water with the surface of the material is less than 90 degrees, and hydrophobic if the contact angle of the drop of water with the surface of the material is greater than 90 degrees. The qualities of hydrophilicity — attractiveness to water, and hydropho-bicity — repelling water, are confirmed by a variety of formulae and tests involving capillary action of the material and water. A substance is naturally hydrophilic if it is attractive to water without the addition of wetting agents. It is very important to a microporous membrane that it be naturally hydrophilic — the more hydrophilic the better. This is so because otherwise the wetting agents themselves may interact with the material being passed through the membrane and make the membrane not commercially usable. The more hydrophilic a material is, the better it is for micropo-rous membrane filtration in view of the need, of course, to pass the water through the material filtering out whatever is sought to be filtered out. Dr. Pali’s use of the term hydrophilic is quite different. Dr. Pall considers a material naturally hydrophilic only if it is so readily wetted with water that no contact angle at all can be measured between the material and the drop of water because the water has gone into the material in less than one second. One can understand that definition, but confusion results because he defines everything else as hydrophobic, whereas in fact certain nylon blocks, pellets, solid materials, and, most important as we will see further on, Nylon 46, in their natural states have contact angles of less than 90 degrees. The term skinlessness should also be examined. It is clear that- Pall makes no claim to skinned membranes in this patent. Figure 8 in the patent-in-suit'■ shows a skinned membrane, which is outside the claims of the patent. Dr. Pall emphasizes that the membranes produced through the Pall patent are skinless. Skinlessness is never specifically defined in the Pall patent but clearly it is a significant parameter and it is discussed at some length, as follows, reading from Column 9 of the patent: The conditions under which the po-lyamide resin is precipitated determine the skinless nature of the membrane, as well as its physical characteristics, i.e., the size, length and shape of the through pores of the membrane. Under certain conditions a membrane is formed which has through pores extending from surface to surface that are substantially uniform in shape and size. Under other conditions, the through pores are ta-peréd, being wider at one surface and narrowing towards the other surface of the membrane. Under conditions outside the scope of the invention, still another form of the membrane is obtained, having a dense skin penetrated by pores of smaller diameter than the pores in the remainder of the sheet. This skin is normally on one side of the membrane sheet, but it can be on both sides of the membrane sheet. Such skinned membranes are conventional in the art, exhibit relatively higher pressure drop and other poor filtration characteristics, and are undesirable. Ex. 500. Column 26 of the Pall patent, starting at Line 33, explains: Skinned membranes behave very differently; when water wetted and their air flow-pressure drop relationship is determined, the [KL] curve is not flat initially, but slopes upward, indicating presence of large pores; transition to a more nearly vertical line is slow, with a large radius, and in the “vertical” area, instead of the sharp rise of FIG. 3 [in the patent], a sloping line is obtained, reflecting a wide pore size range. Such membranes are poorly suited to obtain sterile filtrates when challenged by bacteria; either a nonsterile fluid is obtained, or if sterility is gotten, it is at the cost of very high pressure drop to achieve a low throughput rate. Ex. 500. Stated another way, the skinlessness of the membranes was important for filtration applications because it assured a good flow rate and acceptable pressure drops and avoided functional imperfections typically associated with skinned membranes which rendered such membranes unsuitable for use in critical filtration applications where absolute removal of all particles larger than a predetermined size must be assured. Skinlessness is also an important attribute of nylon membranes used in biotechnological applications. Dr. Pall found the immediate zero contact angle aspect of the nylon membranes produced by the process which he had invented unexpected since he considered the source material, that is, the pellet form of the starting nylon resins, each to have a contact angle much greater than zero. This immediate natural zero contact angle occurring within one second, which Dr. Pall defines in his patent as natural hydrophilicity, was a tremendous advantage over most known commercial filtration materials which had to be treated with a surfactant to make them hydrophilic. Such surfactants invariably contaminate the filtered fluids when they shed off to one degree or another. A pliancy of the material produced by the Pall process likewise was important to facilitate handling, including pleating into high surface area cartridges. The alcohol-insolubility of the membrane produced by the Pall process is important to permit the use of nylon membranes with a wide variety of liquids. Between 1976 and 1977 Dr. Pall developed a manufacturing process for making commercial quantities of nylon membrane. On May 15, 1978, Dr. Pall filed a parent patent application covering the products and the process for making the nylon membrane. The parent application was drafted broadly enough to encompass all alcohol-insoluble nylons which produced hydrophilic, that is, as Dr. Pall defines it, skinless microporous membranes. At the same time, Dr. Pall prepared and filed a related application which ultimately matured into United States Patent 4,340,-480, not at issue herein, directed to the range of nylon which he considered useful for making liquophilic membranes, that is, those which, though not wettable by water, were wettable by certain organic liquids. The examiner — and the principal examiner throughout was one Frank A. Spear, Jr. — initially, on February 5, 1979, took the position that the initial application Claims 1 through 97 were all subject to certain restrictions which he listed. Ex. 545 at 112-13. In response to his direction that the claims be restricted, on March 5, 1979, a document entitled “Amendment” was filed seeking reconsideration of the requirement for a restriction in which Pall claimed, [t]he claims of Groups I, II and III are drawn to one indivisible invention based on the process’ which is defined in Claims 1 to 31, 56 to 66, 96 and 97. As a result of this process it has been found possible to prepare a skinless, hydro-philic alcohol-insoluble polyamide membrane, which itself is new and patentable, because it was never before made available, and indeed no process was known for preparing it. Ex. 545 at 114 (emphasis in original). The patent applicant wanted to emphasize that what had been invented here was this skinless, hydrophilic, alcohol-insoluble polyam-ide membrane. Nevertheless, in an action mailed in June, 1979, Claims 1 through 86 and 96 and 97 were rejected by the patent examiner, Claims 87 through 95 having been withdrawn. Ex. 545 at 120. The ground of the rejection is significant. The examiner took issue with the use of the word “hydrophilic” in the original application, “because it has no absolute meaning. It is a relative term.” Ex. 545 at 121. In this the examiner was precisely correct and, indeed, focused on the point that Dr. Pall, as a patent applicant, was defining hydrophilic in a manner somewhat different than the term had heretofore generally been understood. Other claims were rejected because the use of the support for the membrane had already been revealed in the prior art, including the Marinaccio patent. Ex. 545 at 121. Claims 3 and 4 were rejected as unpatentable over Marinaccio with respect to the manner in which Marinaccio had filtered the casting dope. Ex. 545 at 121. Claims 56 through 66 were rejected as unpatentable over Marinaccio and others on the ground that it was obvious to use multiple layers in a membrane and that had been shown in Marinaccio as modified by other patents. Ex. 545 at 121. Claims 75 through 86 were rejected on the ground that “[i]t would be obvious to use a solution ready to precipitate in Marinaccio,” and reference is made to other patents. Ex. 545 at 122. That did not slow down, Dr. Pall. In response to the action of June 4, 1979, Pall stated in a document entitled “Amendment” that “[t]he applicant agrees that the term ‘hydrophilic’ is perhaps susceptible of being misunderstood, because it is not precise.” Ex. 545 at 129. He then goes on to explain exactly what he means: A very high angle of contact indicates very poor wetting, while a zero angle of contact defines complete or perfect wetting. While the polyamide resins from which the membranes of this invention are made have a high angle of contact and are not wetted by water, the membranes of the invention have a substantially zero contact angle, because they are readily wetted by water. Ex. 545 at 129. Dr. Pall then amended Claim 27 accordingly. All claims, including the claims objected to by the examiner, which use the term hydrophilic were then further amended so as to indicate either that the membrane has a substantially zero angle of contact with water or that the membrane is readily wet-ted by water. This defines hydrophilicity in a precise way'and also distinguishes the applicant’s membranes from the membranes of the prior art. The fact is that the polyamide resins from which the membranes of this invention are made have a high angle of contact with water and are not wetted by water. At this stage in the application process, Dr. Pall then addressed the examiner’s concern as to whether particular types of nylons are critical elements of the process, stating:- However, there is nothing critical in the polyamide resin, apart from its being alcohol-insoluble. The applicant believes that the invention is applicable to any alcohol-insoluble polyamide resin, and has said so, not only in the broad claims but also in the broad statements of the invention at pages 15 to 21. Throughout this portion of the specification, the term “polyamide resin” is used generically to encompass the entire class of alcohol-insoluble hydrophobic polyamide resins. Ex. 545 at 130. The word hydrophobic is used in this passage, the Court infers, in a manner directly the opposite of the Pall definition of hydrophilic. Dr. Pall further stated: “This being so, and there being no prior art requiring a narrowing of the claims in this respect, the applicant proposes to maintain the present scope of ‘polyamide’ in the claims.” Ex. 545 at 131. On December 3, 1979, the examiner rejected all the claims in greater detail. Ex. 545 at 165. At that time, the examiner rejected one of the key elements of Dr. Pall’s claimed invention, controlled nucleation. The examiner stated: It is submitted that there is some nucleation in Marinaccio et al. For instance, during the addition of small amounts of non solvent, there would come a time when a small amount of precipitate would form temporarily and immediately redissolvé. In fact, applicant’s specification (pages 43-44) suggests that there is some nucleation in Marinaccio et al. Ex. 545 at 166. The examiner stated that it would be obvious to use the support of Brown and others in Marinaccio — by support the Court infers that the examiner is referring to the polyester support for the membrane sheet. The examiner continued to believe that it would be obvious to filter the casting dope and doing so was not an advance over Marinaccio et al. Use of multiple layers would also be obvious and was not an advance over Marinaccio et al. The examiner made reference to a Sharp membrane as being hydrophilic in the sense that they have produced membranes, and so has Marinaccio, which are “more readily wettable than prior art films.” Ex. 545 at 167. The examiner stated that one would obviously expect a very thin, very porous film to be completely wettable throughout as claimed. The examiner did not think there was very much to Dr. Pali’s invention, at least at this time. The rejection for multilayers was maintained. Significantly, the examiner again rejected the application, saying it would be obvious to use a solution ready to precipitate in Marinaccio as shov/n by Lovell, and to filter it as shown by Jamison. That rejection did not deter Dr. Pall and his people, either. The summary record of the examiner interview on May 2, 1980 indicates that all claims were discussed and Marinaccio, Brown, and Sharp were identified as prior art. Ex. 545 at 172. The examiner noted that he had received an “impressive demonstration.” Ex. 545 at 172. He further noted, “examiner will consider 132 declarations in detail while reflecting on the demonstration. Check examples for support of 6-10 carbon atoms.” Then the examiner remarked, “Markush looks promising.” Ex. 545 at 172. A Markush claim is a claim which claims a group of related things of which examples are given. It is likely that a new approach to defining what was claimed was also discussed at this interview because the claim was amended in a document entitled “Amendment” dated May 5, 1980, three days after that interview. Claim 1, describing the invention, was to be amended as follows: A process for preparing skinless, hydro-philic, alcohol-insoluble polyamide membranes that are readily wetted by water which comprises preparing a solution of an alcohol-insoluble polyamide resin, selected from the group consisting of po-lyhexamethylene adipamide, polyhex-amethylene sebacate, and poly-e-capro-lactam in a polyamide resin solvent, inducing nucleation of the solution by controlled addition to the solution of a non-solvent for the polyamide resin.... Ex. 545 at 175 (emphasis in original). The rest of the claims were also to be amended to incorporate the limitations imposed by the amendment to claim 1. In the remarks section of the amendment, it is stated that: As indicated at the interview, Claims 1, 32, 56, 67, and 75, although not rejected on the grounds of undue breadth, are amended because, on the basis of research done since this application was filed, the applicant now considers that the process described and claimed herein is actually applicable only to polyamide resins which are polymers of hexamethy-lene diamine and aliphatic saturated dicarboxylic acids having from six to ten carbon atoms. As indicated at Page 22, Lines 12 to 14, the preferred polyamide resins now recited in these claims in a Markush group are polyhexamethylene adipamide (Nylon 66), poly-e-caprolactam (Nylon 6), and polyhexamethylene seba-camide (Nylon 610). These embrace the limits of the class of saturated aliphatic dicarboxylic acids having from six (adi-pic) to ten (sebacic) carbon atoms. Ex. 545 at 178. With reference to nucleation in the Mari-naccio patent, the applicant stated: [Claims 75 to 86] are directed to a casting resin solution for forming hydrophilic skinless microporous polyamide membranes that have a visible precipitate of polyamide resin formed during the addition of the nonsolvent, and that is nucleated by virtue of the addition of the nonsolvent under controlled conditions of solvent, of nonsolvent, and of resin concentration, temperature, mixing intensity, addition time, and system geometry, resulting in this visible precipitate. This rejection is accordingly answered by the discussion above of the phenomenon of nucleation vis-a-vis the disclosure of the Marinaccio et al. patent, in connection with the rejection of Claim 1 on Marinac-cio et al. The Marinaccio et al. disclosure clearly teaches one not to use a solution which contains a visible precipitate. Dilution with nonsolvent cannot proceed this far, but only up to the point of incipient precipitation of the nylon. This is before a visible precipitate is formed, not after. Note Column 6, Lines 6 to 9 of the reference. Thus, to use a solution that contains a visible precipitate is to proceed contrary to the Marinaccio et al. disclosure, as noted above. Ex. 545 at 213 (emphasis in original). On October 20, 1980, a continuation-in-part was filed which discusses the full abstract of the disclosure. Ex. 544. The continuation-in-part redefines the invention by what has been referred to in this litigation “the ratio claims”: The application Serial No. 905,698 has been refiled to provide basis for a narrow subclass of polyamide resins disclosed in Serial No. 905,698 that form such skinless hydrophilic membranes. All members of this class have a ratio CH2:NHCO of methylene CH2 to amide NHCO groups within the range from about 5:1 to about 7:1, including polyhexamethy-lene adipamide (Nylon 66), poly-e-caprola-catam (Nylon 6), polyhexametehylene se-bacamide (Nylon 610), poly-7-aminohep-tanoamide (Nylon 7), polyhexamethylene azeleamide (Nylon 69), and mixtures of two or more thereof, as well as mixtures thereof with higher polyamide homo-logues such as polyhexamethylene dode-candiamide (Nylon 612) in portions such that the mixture has an average of CH2:NHCO ratio within the stated range. The first three polyamides, Nylon 66, Nylon 6 and Nylon 610, are preferred. The other' polyamides disclosed in Serial No. 905,698 have been found not to form hydrophilic skinless membranes. Some of them, those that have a ratio CH2:NHCO of methylene CH2 to amide NHCO groups within the range from about 7:1 to about 12:1, form skinless liquophilic membranes. The others form hydrophobic skinned membranes. Ex. 544 at 123 (emphasis in original). On August 24, 1981, the examiner allowed Claims 1 through 76, and 111 through 115 and rejected claims 77 through 110 and 116 through 172. He made the following note: “The broadly recited amide having the claimed ratio of CH2 to NHCO groups is unwarranted in view of the disclosure. The various mixtures in that range are particularly unsupported. Only one mixture appears in the examples. (Ex. 68). Most of the examples involve only Nylon 66.” Ex. 544 at 168. In the summary record of the examiner interview, the examiner wrote that all the rejected claims were discussed, that there was no rejection based on prior art, and that the amendment looks promising. Ex. 544 at 170. He wrote that three options were discussed, all of which would clear up Claim 87. The amendment to which reference is made by the examiner is that which follows on page 172 of Exhibit 544. The most significant language therein is contained in the remarks section and it reads: The range of CH2:NHCO ratios within the range from about 5:1 to about 7:1 is actually rather narrow, and it is moreover well supported in the disclosure. The ratio of 5:1 requires there to be five CH2 to one NHCO group, and the ratio of 7:1 requires there be seven CH2 groups to one NHCO group. These limits constrain a rather narrow range of CH2:NHCO ratios, and clearly exclude the vast majority of polyamide resins, all of which can of course be prepared from diamines and dicarboxylic acids or amino-carboxylic acids having virtually infinite number of carbon atoms, in virtually infinite permutations. The specification at the bottom of page 22 lists a number of commercially available polyamide resins that fall within the limits of the ratio range, and these are as follows: Nylon 6 [ (CH2)5CONH]„ 5:1 Nylon 66 [ (CH2)6NHCO(CH2)4CONH]n 5:1 Nylon 610 [ (CH2)6NHCO(CH3)8CONH]„ 7:1 Nylon 7 [ (CH2)5CONH]„ 6:1 Nylon 69 [ (CH2)6NHCO(CH2bCONH]„ 6.5:1 Mixtures of these with each other or with polyamides outside the range but with an average ratio within the limits as well as other polyamides within the range can of course be conceived, but the above should make it clear that those listed are virtually all of the permutations based on hexamethylene diamine, or on aminocarboxylic acids, of which only Nylon 8 [ (CH2)6CONH]„ is not specified. Ex. 544 at 173-74. The Pall patent issued on July 20, 1982. Although Nylon 6 is included within the patent claims of the Pall patent, Pall does not manufacture anything commercially using Nylon 6. B. The Advance Over the Prior Art. Dr. Pall invented the first naturally and instantaneously wettable, completely skinless, and alcohol-insoluble polymeric membrane and a process for making it. The membrane was suitable for service in severe solvent environments and for sterile filtration. It was strong and pleatable so that without plasticizers it could be made into a cartridge. It met all of the criteria the industry had long sought. And remarkably, it was made of nylon, a material that had been investigated several times before without success. The process invented by Dr. Pall to prepare the membrane, and described in his patent, involved the preparation of a precisely nucleated casting solution made up of solvent, nonsolvent, and'nylon, casting that solution into a film and quenching the film in a bath containing solvent and non-solvent. While those skilled in the art had known how to prepare membranes by casting solutions of polymers, the step of precisely controlling the nucleation of the solution prior to casting, thereby achieving certain properties such as particular pore sizes, or skinlessness, was altogether new and represented a breakthrough in the art. Dr. Pall was the first to recognize the connection between true skinlessness, pore size distribution, and the titre reduction of bacteria passage. This is now recognized to be one of the main advantages of skin-lessness in microfiltration membranes. Prior to Dr. Pall’s invention, a titre reduction of 7 was the standard, and few besides Dr. Pall strove to increase the titre reduction. Millipore, for example, spoke in terms of such erroneous concepts as absolute retention and pore sizes of .22 microns. Clearly the understanding of microfiltration at that time was vastly less sophisticated than it is now. The efforts of Dr. Pall and his colleagues were of great importance to the theoretical aspects of mi-crofiltration and helped move microfiltration from an art to a science. Dr. Pall’s papers described the first studies which addressed the theory of microfiltration in a thoroughly scientific and at the same time practical manner. Dr. Pall and his associates were pioneers both in the invention, development, and commercialization of functional nylon microfiltration membranes and in the theory of microfiltration. Such practices as the determination of the KL curve as an integrity test rather than the bubble point were introduced by Dr. Pall. To a person of ordinary skill in the art, setting out in 1974 to develop a new polymeric membrane free of all the then-existing disadvantages, there was little guidance as to what polymers and what methods for membrane formation should be pursued. A great number of polymers and casting methods had been tried without success. Such a person faced initially two broad choices. One was to improve the properties of the conventional membrane polymers especially those of the cellulosics and mixed cellulosics. This approach was a good one in that the materials were already accepted by the market place and the processing characteristics of these materials was well understood. The other general approach was to look to polymers other than cellulosics which had intrinsic properties superior to those of the cellulosics. It was a reasonable assumption — but by no means a certainty— that superior bulk polymer properties could be transferred at least in part to the high porosity, high surface area bodies which constitute microfiltration membranes. A worker skilled in the field in 1974 could not have predicted what processing steps would be required to achieve the Pall membrane, or even how the various required processing steps would affect the starting material. The controlled nucleation in the Pall process is critically important to the pore size and pore size distribution of the resultant membranes. The composition of the gel bath will determine the rate of gelation and the presence or absence of skinning which in turn can influence wettability as much as the intrinsic polarity of the nylon material itself. In the Pall process, the rate of nucleation and of crystallite growth is precisely regulated. The end effect is to provide for sufficient surface area and hence non-polymer-to-polymer-hydrogen-bonded amorphous amide (CONH) groups which are free to hydrogen-bond with water molecules and hence render the membrane instantaneously wettable. The restraint of the membrane during drying ensures that the pores remain open and that the concentration of non-polymer-to-polymer-hydrogen-bonded to amorphous amide groups remains high enough to ensure spontaneous wetting. Nylon was not considered as a candidate by most membranologists in the mid 1970’s for a, number of reasons. Nylon 66 was known to be very sensitive to oxidation by, for- example, sodium hypochlorite (chlorine) solutions. Since most membranologists entered-' the microfiltration membrane field via reversion osmosis where chlorine resistance was an important desideratum, it tended to be dismissed out of hand. The fact that chlorine was not typically encountered in microfiltration was not considered. Nylon 66 was known to be somewhat polar, but many indices suggested that it was less so than the celluldsics which did yield spontaneously wettable membranes without surfactants. There was little understanding of how to control the dope formulating, casting, and quenching processes for nylon membranes. Marinaecio, of course, was one of the individuals who appreciated at least in part the potentiality of nylon as an adequate mieroporous membrane polymer. Marinac-cio’s patent was known after 1975 and it was also known there was no corresponding commercial microfiltration product. The industry therefore concluded that Nylon 6, the Marinaecio preferred embodiment, was, for some unknown reason, not an adequate membrane polymer. The very poor quality of the Marinaecio disclosure and the inclusion therein of polystyrene, a substance which may have led him down the right track but for which no membrane could possibly ultimately be constructed, suggested that the Marinaecio patent was simply a closeout of a failed product. Likewise, the use of formic acid as the casting solvent was original. Formic acid is not a pleasant casting solvent. It has a highly acrid odor and is corrosive. It also leads to scarring of skin tissue and, therefore, must be handled carefully. At that time, more innocuous solvents such as acetone were employed. There was no way a. worker in the field in 1974 or later could have predicted the properties of the final membrane product, particularly its natural and instantaneous wettability and the absence of any skinning. Hydrophilicity, defined by the Pall patent as the complete and very rapid penetration of water through the entire thickness of the membrane, is a property of great importance to the membrane user because the membrane filtration system must be subjected to an integrity test, either a KL or bubble point test, prior to filtration to guarantee the sterility of the filtrate. The presence of even a single small unwetted portion of the membrane will permit the flow of air through this domain, and lower the apparent KL curve or bubble point of the membrane element. Thus a membrane with an actual bubble point of 50 psi, which would suffice for sterile filtration, may only exhibit a value of 30 psi, which is inadequate for sterile filtration. The user would have no choice but to disassemble his filtration system and replace the membranes or membrane cartridge. This would have adverse economic consequences to the user — labor, cartridge replacement, cost, and to the membrane producer — loss of credibility. Therefore, instantaneous and complete membrane wettability is a practical product property necessity. It is also essential that wettability be a permanent property which will not change with the storage time at ambient conditions, temperature and relative humidity within the range normally encountered during storage and transport. It was not'possible in 1978, or even in 1989 for that matter, to predict wettability of a nylon microfiltration membrane of a given pore size from its intrinsic properties. Any prediction of complete wettability within one second or two seconds through the entire thickness of a porous membrane is impossible by extrapolation from the bulk properties of nylon polymers. The presence of skinning on microfiltration membrane greatly reduces the concentration of accessible surface area and hence the concentration of accessible CONH groups. This in turn retards spontaneous and instant wettability. The microporous filtration industry reacted very favorably to the claims of the Pall patent and its commercial application since wettability with no surfactants was an extraordinarily desirable result. Scientists in the area, however, continued to express doubt that Nylon 66 could be used to form a sufficiently hydrophilic membrane to be spontaneously wettable in the membrane form without a surfactant. This is an example of the advance of the Pall patent over the prior art. The nylon membranes covered by the Pall patent have numerous applications, primarily in filtration and as immobilization media in biotechnological applications. To date, Pall alone has sold about $400 million worth of its nylon membrane products in the aggregate. III. The Validity of the Pall Patent A. Standard of Proof. Of course, it is unquestioned that in accordance with 35 U.S.C. § 282 the Pall patent is presumed valid. Roper Corp. v. Litton Sys., Inc., 757 F.2d 1266, 1270 (Fed.Cir.1985). MSI has the burden of proving all of its allegations of invalidity and unen-forceability by clear and convincing evidence. American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1358-60 (Fed.Cir.), cert. denied, 469 U.S. 821, 105 S.Ct. 95, 83 L.Ed.2d 41 (1984). The Federal Circuit defines clear and convincing evidence as “an abiding conviction that the truth of [the] factual contentions are ‘highly probable.’ ” Buildex, Inc. v. Kason Indus., Inc. 849 F.2d 1461, 1463 (Fed.Cir.1988) (quoting Colorado v. New Mexico, 467 U.S. 310, 316, 104 S.Ct. 2433, 81 L.Ed.2d 247 [1984]) (alteration in original). Here, to the extent MSI relies upon prior art that has previously been considered by the patent office during the prosecution of the patent application, MSI’s burden of proving invalidity is especially heavy. 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). B. Anticipation by Pall’s Sale of the Membrane Product. In 1978, at a time following the initial filing of its patent application but prior to the filing of its continuation-in-part, Pall sold its membrane product commercially. It is claimed that this commercial sale of the membrane product produced by the process for which Pall later was issued a patent is an anticipation violative of Section 102(b) in that the ratio claims of the patent added in the continuation-in-part are not entitled to the filing date of the parent application and, therefore, are invalid under Section 102(b) due to Pall’s earlier sales of nylon membranes. MSI, to support that conclusion, must prove by clear and convincing evidence that the ratio claims are not entitled to the filing date of the parent application. Ralston Purina Co. v. Far-Mar-Co., Inc., 772 F.2d 1570, 1573-74 (Fed.Cir.1985); Pennwalt Corp. v. Akzona, Inc. 740 F.2d 1573, 1578 (Fed.Cir.1984). The ratio claims are entitled to the filing date of the parent application under 35 U.S.C. § 120 if the disclosure of the parent application complies with the enablement description and best mode requirements of Section 112. DeGeorge v. Bernier, 768 F.2d 1318, 1320 n. 1 (Fed.Cir.1985); Pennwalt Corp., 740 F.2d at 1577, 1580 n. 13; Hughes Aircraft Co. v. United States, 717 F.2d 1351, 1358-59 (Fed.Cir.1983). Compliance with the best mode enablement requirement is not contested in this case. The enablement description requirement is met if the disclosure of the parent application would have reasonably conveyed to an artisan of ordinary skill that Dr. Pall had invented the subject matter of the ratio claims when he filed the patent. Utter v. Hiraga, 845 F.2d 993, 999 (Fed.Cir.1988); Application of Smith, 481 F.2d 910, 914 (Cust. & Pat.App. 1973). The methylene to amide ratio was well-recognized as an inherent property of nylons at the time of the original application in 1978. Accordingly, the Court finds that the methylene to amide ratio was impliedly disclosed in the parent application and the addition of the express language in the continuation-in-part application did . not constitute new matter. Since the ratio claims recite an inherent property of the group of nylons disclosed and claimed in the parent application for use in membrane manufacture, the enablement description requirement is satisfied. Kennecott Corp. v. Kyocera Int’l, Inc., 835 F.2d 1419, 1421-23 (Fed.Cir.1987), cert. denied, 486 U.S. 1008, 108 S.Ct. 1735, 100 L.Ed.2d 198 (1988). Accordingly, MSI has failed to prove by clear and convincing evidence that the ratio claims are not entitled to the filing date of the parent application, and since the filing date of the parent application is prior to the allegedly invalidating sales of membranes, the assertion of invalidity under section 102(b) fails. C. Anticipation of the Pall Patent by Marinaccio. The Court addressed in Part I, supra, the disclosure under 102(g) of Marinaccio’s prior invention. Now the Court will address the anticipation of the Pall patent by Marinaccio. In order for a prior art reference to anticipate a claim of the Pall patent, two conditions must be met. First, all of the elements of that claim must be found either expressly or inherently in that single reference. Akzo N.V. v. United States Int’l Trade Comm’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); Tyler Refrigeration v. Kysor Indus. Corp., 777 F.2d 687, 689 (Fed.Cir.1985); In re Donohue, 766 F.2d 531, 534 (Fed.Cir.1985); W.L. Gore and Assocs., Inc., 721 F.2d at 1554. Second, that single reference must enable one skilled in the art to practice the claimed invention without undue experimentation. Akzo, 808 F.2d at 1479; Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 781-82 (Fed.Cir.1985). See Hybritech, Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1379 (Fed.Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1606, 94 L.Ed.2d 792 (1987). For a process to anticipate a product the process must consistently reproduce the product. W.L. Gore and Assocs., 721 F.2d at 1554. In this case, the Court finds that the Marinaccio patent, though certainly an advance, fails to disclose to one skilled in the art all of the elements of any of the claims at issue in the Pall patent. More spécifically, it fails to disclose in a manner which would allow a person skilled in the art to practice the aspects of controlled nucleation, the concern over temperature, the concern over skinlessness, and the inherent wettability. Moreover, the Marinaccio patent is silent with respect to what, if anything, happens to a product made in accordance with its processes when heated to a temperature just below the softening temperature of the product. Therefore the Court rules that the Marinaccio patent is not an anticipatory reference such as to invalidate, the Pall patent. United States v. Adams, 383 U.S. 39, 50, 86 S.Ct. 708, 713-14, 15 L.Ed.2d 572 (1966). Likewise, the Court is not convinced that there was any public disclosure of the work that Dr. Johnson did on Nylon 66 while at Millipore, or commercial embodiment thereof, or that, in fact, was there any invention in that work which would anticipate the Pall patent. D. Obviousness. MSI claims that the Pall patent fails because it is obvious. The issue with respect to obviousness is whether MSI has established by clear and convincing evidence that the differences in the asserted claims of the Pall patent over the prior art would have been obvious to a person of ordinary skill in the art when Dr. Pall made his invention embodied in those claims. 35 U.S.C. § 103. Obviousness is a question of law. It is based on factual inquiries and factual evidence. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 693-94, 15 L.Ed.2d 545 (1966); Stevenson v. Int’l Trade Comm’n, 612 F.2d 546, 549 (C.C.P.A.1979). The issue of obviousness requires inquiry into the following areas: the scope and content of the prior art; the differences between the prior art and the patent claims at issue; the level of ordinary skill in the art at the time the invention was made; and objective evidence that may indicate obviousness or non-obviousness. Graham, 383 U.S. at 17-18, 86 S.Ct. at 694. Bausch & Lomb, Inc. v. Barnes-Hind/Hydrocurve, Inc., 796 F.2d 443, 447 (Fed.Cir.1986), cert. denied, 484 U.S. 823, 108 S.Ct. 85, 98 L.Ed.2d 47 (1987). The issue of obviousness is determined entirely with reference to a hypothetical person having ordinary skill in the art. Standard Oil Co. v. Am. Cyanamid Co., 774 F.2d 448, 454 (Fed.Cir.1985). Factors that may be considered in determining the level of ordinary skill in the pertinent art include: the educational level of the inventor; types of problems encountered in the art; prior art solutions to these problems; the rapidity with which innovations are made; the sophistication of the technology; and the educational level of active workers in the field. Environmental Designs Ltd. v. Union Oil Co., 713 F.2d 693, 696-97 (Fed.Cir.1983), cert. denied, 464 U.S. 1043, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984). A person of ordinary skill is presumed to be one who thinks along the line of conventional wisdom in the art and is not one who undertakes to innovate. Standard Oil, in F.2d at 454. The Court has made the findings relevant on this issue above, with one exception — the objective evidence of non-obviousness. Objective evidence of non-obviousness may well be the most pertinent probative and revealing evidence available to aid in reaching a conclusion with respect to this issue. Demaco Corp. v. F. Von Langsdorff Licensing Ltd., 851 F.2d 1387, 1391-92 (Fed.Cir.), cert. denied, 488 U.S. 956, 109 S.Ct. 395, 102 L.Ed.2d 383 (1988). Both the Pall and the MSI product literature emphasize that the sales of nylon membranes by both of them are directly attributable to the advantages offered by the invention of the Pall patent, including its natural wettability, uniform porosity, and skinlessness. Indeed, MSI considered Pali’s nylon membrane to be revolutionary in the art. MSI’s marketing information characterized its own Nylon 66 product as, “the first innovative product to be introduced to this market in 20 years. The nylon membrane has no extractables because of its natural wettability and is virtually indestructible.” The introduction of nylon membrane permitted Pall to surpass Millipore as the leader in microfiltration membranes. The industry was surprised by Pali’s introduction of a skinless nylon membrane which was naturally wettable without the presence of surfactants because others had failed to achieve such a membrane. The introduction of Pall’s nylon membrane represented a major breakthrough in the filtration industry. Dr. Pall was the first person to work with a highly crystalline material and wind up with a reproducible membrane of uniform pore size. As recited above, AMF/Cuno had abandoned its nylon membrane project because of technical problems. Other investigators and scientists in the field, including Dr. Resting, were surprised by Pali’s introduction of nylon membrane because they had been unsuccessfully trying to obtain a membrane that was naturally wettable without the presence of surfactants for many years. Commercial success is a strong factor favoring non-obviousness. Akzo, 808 F.2d at 1481. MSI has failed to prove by fair and clear and convincing evidence that any of the claims i