Opinion
Nos. 72-2123 to 72-2126.
Argued June 7, 1973.
Decided November 20, 1973.
Victor DeMarco, Robert W. Poore, Patrick F. McCartan, Robert J. Hoerner, John L. Strauch, Cleveland, Ohio, on brief, for appellant; Jones, Day, Cockley Reavis, Cleveland, Ohio, John F. Floberg, Gen. Counsel, Stanley M. Clark, Patent Counsel, David A. Thomas, Asst. Patent Counsel, The Firestone Tire Rubber Co., Akron, Ohio, of counsel.
Charles J. Merriam, Edward M. O'Toole, Clyde V. Erwin, Carl E. Moore, Michael F. Borun, Chicago, Ill., Richard E. Guster, Akron, Ohio, William C. McCoy, Jr., Cleveland, Ohio, on brief for appellee, The General Tire Rubber Co.; Merriam, Marshall, Shapiro Klose, Chicago, Ill., Roetzel Andress, Akron, Ohio, Bosworth, Sessions McCoy, Cleveland, Ohio, T. E. Pittenger, Frank C. Rote, Akron, Ohio, of counsel.
Appeal from the United States District Court for the Northern District of Ohio, Frank J. Battisti, Chief Judge.
Before EDWARDS, MILLER and LIVELY, Circuit Judges.
This patent litigation began in 1961. It involves two proceedings. The first was a suit for declaratory judgment filed by Firestone in Baltimore, Maryland, against General Tire attacking the validity of a patent issued to General Tire, and in the alternative, claiming a royalty-free license. The second was a suit filed in Cleveland, Ohio, by General Tire claiming infringement of its patent by Firestone (as well as by several other tire companies which have now been dismissed). In 1967 the Baltimore case was ordered transferred to the United States District Court in Cleveland and the issues in two cases were consolidated.
The Baltimore Litigation: Firestone Tire Rubber Co. v. General Tire Rubber Co., 130 U.S.P.Q. 138 (D.Md. 1961) (motion to dismiss denied and General restrained from prosecuting Cleveland case); General Tire Rubber Co. v. Watkins, 326 F.2d 926 (4th Cir.) (petition for writ of mandamus to compel transfer to Cleveland denied), cert. denied, 377 U.S. 909, 84 S.Ct. 1166, 12 L.Ed.2d 179 (1964); 331 F.2d 192 (4th Cir.) (motions for writ of mandamus and stay of trial proceedings below denied), cert. denied, 377 U.S. 952, 84 S.Ct. 1629, 12 L.Ed.2d 498 (1964); 363 F.2d 87 (4th Cir.) (motion for writ of mandamus to compel transfer of proceedings below denied), cert. denied, 385 U.S. 899, 87 S.Ct. 204, 17 L.Ed.2d 131 (1966); 373 F.2d 361 (4th Cir.) (in banc) (petition for writ of mandamus to compel transfer granted), cert. denied sub nom., Firestone Tire Rubber Co. v. General Tire Rubber Co., 386 U.S. 960, 87 S.Ct. 1031, 18 L.Ed.2d 109 (1967). As a result of the decision in the case cited immediately above, the litigation was transferred to Cleveland, where General had brought suit against Firestone for patent infringement in 1961.
The Cleveland Litigation: General Tire Rubber Co. v. Firestone Tire Rubber Co., 349 F. Supp. 333 (N.D.Ohio 1972) (motion to dismiss denied); 431 F.2d 1199 (6th Cir. 1970) (motion to dismiss appeal of order on fraud question granted), cert. denied, 401 U.S. 975, 91 S.Ct. 1196, 28 L.Ed.2d 325 (1971). General Tire Rubber Co. v. Firestone Tire Rubber Co., 349 F. Supp. 345 (N.D.Ohio 1972), amended in part, 351 F. Supp. 872 (N.D.Ohio 1972). General originally had brought suit against Goodyear, Uniroyal and Goodrich in Cleveland, adding Firestone on April 4, 1961. After the case was transferred from Baltimore, pretrial proceedings were held. All litigable issues in the Baltimore case were consolidated with the Cleveland case, and the Baltimore phase subsequently was dismissed. During the interim period, Goodyear, Uniroyal and Goodrich had settled with General. Firestone remained the only defendant.
The patent in suit (U.S. Letters Patent No. 2,964,083), an oil-extended synthetic rubber composition for use in tires and tire treads, was found valid by Judge Holtzoff in the United States District Court for the D.C. Circuit after issuance of the patent had been denied following extensive consideration by the Patent Office. The patent was issued December 13, 1960. The application for the patent in suit had been filed by General November 7, 1950, and has been in almost constant litigation here and in many other parts of the world for over twenty-four years.
The Patent No. 2,964,083 Litigation: General Tire Rubber Co. v. Watson, 184 F. Supp. 344 (D.D.C. 1960).
The Issues
The two principal issues in this litigation as we see them are: first, is General Tire Patent No. 2,964,083 valid against Firestone's claims of anticipation, obviousness, and indefiniteness? Second, if so, was and is Firestone licensed to use the patent as a nominee of the Reconstruction Finance Corporation of the United States Government for which General was a contract research agent during the period involved in the research and development of this patent?
We answer both questions in the affirmative.
Relevant History
Both issues take us back many years through much poignant American history. The story really begins with Pearl Harbor.
When in December of 1941 the United States suddenly found itself at war, it was equally suddenly cut off from all principal sources of natural rubber. While Germany had already been manufacturing synthetic rubber (by combining the chemicals butadiene and styrene into a compound called "Buna-S"), the rubber industry in the United States until 1942 depended almost entirely upon imported natural rubber. Pearl Harbor made development of a synthetic rubber industry a national military goal of top priority. Congress gave the Reconstruction Finance Corporation authority to take the steps necessary to organize a synthetic rubber industry in the shortest possible time. This was accomplished through an RFC agency, the Rubber Reserve Company, by the building of synthetic rubber plants with government funds, and the signing of contracts between the RFC and the big four of the rubber industry (Goodyear, U.S. Rubber, Goodrich and Firestone), both to manage and operate the synthetic rubber plants and to pool patents and conduct research for the government, the results of which would be shared royalty-free with the government and its "nominees" (i.e. the other rubber companies participating in the research agreements).
General Tire Company was not then a leading producer and was not included in the research agreements, but in 1943 it was tendered and did accept a contract to operate a United States Government synthetic rubber plant in Baytown, Texas.
Synthetic rubber when first produced in quantity in the United States was produced in U.S. Government plants. The government rubber program provided sufficient synthetic rubber for the military needs of the United States in World War II. It eventually provided over 1,000,000 pounds of synthetic rubber per year and even after natural rubber became available at the end of World War II, synthetic rubber continued to dominate the United States rubber industry.
The United States Government's active participation in the production of synthetic rubber continued through the Korean War (1950 to 1953). The synthetic rubber plants were finally sold to private industry in 1955.
The Synthetic Rubber Tire Process
About the only facts upon which these bitterly opposed parties have agreed in these years of litigation and thousands of pages of records is a general description of the synthetic rubber tire-making process and the definition of some of the terms employed extensively in this litigation.
Stipulation as to Process
In this country the synthetic rubber made from butadiene and styrene was first referred to as Buna-S. Under the Government Rubber Reserve program beginning in 1942 the butadiene-styrene copolymer was called GR-S. For a time after 1942 butadiene-styrene synthetic rubbers were referred to in this country by both designations. GR-S was made at 122° F. by a liquid emulsion polymerization process in which so-called "modifiers" were employed to produce rubbers within the Mooney standards established for the GR-S rubber at an early date in the range of 45 to 55 ML-4. In the early 1940's the American processors wanted a rubber which could be handled in the same equipment they had been using for natural rubber.
Firestone became the operator of a government-owned synthetic rubber plant at Lake Charles, Louisiana in 1943. The general procedure followed in the government-owned plants in producing GR-S during World War II was as follows: Liquid butadiene, under pressure, was mixed with a water emulsion of styrene in the proper proportions and in the presence of the necessary chemicals to start and maintain the polymerization reaction and to "modify" the reaction to produce a product of the specified Mooney. * * *
The reaction produced a dispersion (latex) of extremely small rubber particles in water. In most government-owned plants, a salt-acid coagulant was then added to produce a coagulum which was sometimes referred to as crumb. However, in the Firestone operated plants at Akron and Lake Charles aluminum sulfate (having an acidic pH value) was used as the coagulant. The rubber was separated from the water and passed through warm drying ovens where air temperatures were controlled at approximately 180-190° at most government-owned plants, and at 200-220° F. at the Lake Charles Plant. The rubber was then formed into bales of about 75 pounds.
The German Buna-S rubber and the American GR-S rubber commercially produced prior to 1948 were "hot" rubbers. This means the rubber was made at temperatures of around 122° F. (50° C.).
During World War II, experimental work was done in this country and in Germany upon the production of rubber in which the reaction was carried on at temperatures below 122° F. Rubber polymerized at a temperature of about 41° F. is called "cold rubber". Cold rubber was not commercially produced before 1948, although it had been produced in pilot plant scale in 1947. The temperature of 41° F. required refrigeration, since the polymerization reaction produced heat. When properly compounded in a tire tread, cold rubber proved to have a higher abrasion resistance than GR-S hot rubber. Over the period of about 1948-1952, cold rubber superseded hot rubber for use in tire treads.
In processing natural rubber for tire treads before World War II, the machinery at American tire factories normally consisted of Banbury mixers, mills (rolls) and extruders. The basic techniques now used in the tire factories for handling or processing rubber and from it building pneumatic tires were developed prior to World War II. In a typical procedure for processing natural and synthetic rubber, the rubber and carbon black, then oil and possibly some chemicals, but not those which would cause vulcanization, were worked in the Banbury until thoroughly mixed. Banburys resemble a dough mixer in that they have blades which counter-rotate within a closed housing. The resulting product was called a masterbatch (a masterbatch rubber being rubbery polymer plus one or more but less than all compounding materials). The masterbatch upon removal from the Banbury was set aside to cool. The masterbatch was passed to a second Banbury, where the remaining ingredients were added and mixed in to form the final stock; these ingredients included the sulfur and vulcanizing chemicals, and in some instances additional softening oil to facilitate processing. The temperatures in the second Banbury were considerably lower than in the first Banbury in order to avoid premature vulcanization which could occur after the sulfur was added. The stock was cooled after removal from the second Banbury. The cooled final stock from the second Banbury was warmed up by working on warm-up rolls before extrusion.
From the warm-up rolls, the final stock, when sufficiently warm, was moved to the extruder. The extruder was a screw-fed device provided at its exit end with a die of the proper shape for the extrusion.
Stipulated Definitions
The plasticity of unvulcanized rubber and rubber compounds, both natural and synthetic, can be measured by a device known as a Mooney plastometer. The measurement involves rotating a steel disk (the rotor) embedded in a specially prepared rubber specimen which is confined in a cavity surrounding the rotor. The specimen is heated and maintained at a specific temperature, usually 212° F. as the rotor turns at a prescribed speed (2 r.p.m. is standard) for a specified time. The specimen's resistance to the rotation of the rotor is measured and shown on a dial as "Mooney" units. The dial is usually read at four minutes after a warm-up period of one minute. There are two sizes of rotors varying in diameter. One is referred to as large rotor and the other as small. The readings are normally expressed as ML-4 meaning Mooney, large rotor at four minutes after warm-up or MS-4 meaning Mooney, small rotor at four minutes after warm-up. If no temperature is stated for a reading, 212° F. is meant unless the context indicates otherwise. The Mooney plastometer came into use in respect to synthetic rubber in this country about 1942-1943. It is named after its designer, Mr. Melvin Mooney.
* * * * * *
Natural rubber may have a Mooney as high as 110-120 ML-4. Natural rubber when worked by itself on a mill or in a Banbury breaks down readily to a lower Mooney.
Neither natural rubber nor any synthetic rubber is useful in a tire unless it is mixed with other materials to form a vulcanizable compound. These materials include carbon black and various chemicals added in small proportions for the purpose of obtaining proper vulcanization and for preventing oxidation. Sulfur is the most common vulcanizing agent, and other chemicals are used to accelerate the vulcanizing reaction. Tire tread recipes include some softeners.
Carbon blacks employed in tires and particularly tire treads are known as reinforcing blacks. The degree of reinforcement depends upon the particle surface area and the structure of the carbon black. Before 1940 the best available carbon blacks were the channel blacks, which in essence were lampblacks made by burning natural gas with less than sufficient air for complete oxidation, in close proximity to a cold metal channel (I-beam) upon which the black was deposited. One useful type of channel black was referred to as EPC (easy processing channel). During World War II, furnace blacks appeared which were made by cracking natural gas in a furnace. The furnace blacks had about the same particle size as the channel blacks but had a different particle structure, were alkaline instead of acid and were not as easy to incorporate in rubber as the EPC blacks, but gave considerably higher abrasion resistance to the ultimate rubber product. * * * The amount of carbon black required to give the desired reinforcement and working properties of the rubber compounds varies with the type of carbon black employed and the desired physical properties of the vulcanizate. * * * With natural rubber, about 50 parts carbon black were employed for 100 parts rubber in tread stocks, and a similar ratio was used with synthetic rubber.
Tensile strength of rubber is measured by the force required to produce rupture by longitudinally stretching a specimen, stated in pounds per square inch in this country and kilograms per square centimeter abroad, based on the cross-sectional area of the unstretched specimen.
* * * * * *
"Heat build-up" (sometimes called "hysteresis" in this industry) is an important quality of a rubber intended for use in a tire. The lower the heat build-up, the better the rubber for tire treads, other things being equal. When rubber is deformed, it generates heat. Various methods of measuring heat build-up are employed, all of them involving repeated deformation of the rubber.
Important Definitions
Of great importance in this appeal are three terms: polymer, masterbatch and compound.
Polymer is defined by Webster as "a natural or synthetic chemical compound or mixture of compounds formed by polymerization and consisting essentially of repeating structural units." Webster's Third New International Dictionary of the English Language Unabridged 1759 (Merriam-Webster ed. 1961). Polymerization is a chemical reaction in which small molecules (here molecules of butadiene and styrene) combine to form long chain molecules.
Masterbatch — Webster defines this word as "a mixture that consists of rubber . . . with one or more compounding ingredients in definite proportions but higher concentrations than in a normal mix and that is used for convenience in compounding." Id. at 1390. In the preceding stipulation the parties agreed that a masterbatch was "rubbery polymer, plus one or more, but less than all compounding materials." The stipulation also described what materials did and what did not go into the masterbatch:
In a typical procedure for processing natural and synthetic rubber, the rubber and carbon black, then oil and possibly some chemicals, but not those which would cause vulcanization, were worked in the Banbury until thoroughly mixed. Banburys resemble a dough mixer in that they have blades which counter-rotate within a closed housing. The resulting product was called a masterbatch.
Compound is defined by Webster: "1. A chemically distinct substance formed by union of two or more ingredients (as elements) in definite proportion by weight and with definite structural arrangement." Id. at 466. As used in this case "compound" appears clearly to be the final stock (after addition of vulcanizing ingredients) as it is mixed and rolled before being extruded as a tire tread.
Validity of the Patent in Suit
The initial court decision in this lengthy litigation overruled the Patent Office and held that General was entitled to issuance of this patent. Judge Holtzoff thus described the invention:
The invention lies in the field of synthetic rubber. The specific invention claimed is an article of manufacture. It is tough rubber to which a large amount of oil is added in the course of manufacture, with the result that the same amount of raw material produces a much larger amount of the finished product than theretofore, and also that the rubber so produced has superior qualities, especially for use as tire treads. It is known in the trade as "oil extended rubber". In their application for the patent, the inventors state:
"We have found that the tough rubbers which were considered unprocessible and not suitable for making extruded tire treads in production may be mixed with relatively large amounts of one or more compatible oils or plasticizers to provide compounds of exceptional quality."
General Tire Rubber Co. v. Watson, 184 F. Supp. 344, 346 (D.D.C. 1960).
The patent itself is attached to this opinion as Appendix A. But some idea of its purpose may be derived from the first portion of the patent:
2,964,083 [37] PNEUMATIC TIRES AND TREAD STOCK COMPOSITION
Emert S. Pfau, Gilbert H. Swart and Kermit V. Weinstock, Akron, Ohio, assignors, by mesne assignments, to The General Tire Rubber Company, Akron, Ohio, a corporation of Ohio
Filed Nov. 20, 1950, Ser. No. 196,584 22 Claims. (Cl. 152-330)
The present invention relates to the manufacture of pneumatic tires of the type suitable for use on various types of motor vehicles, airplanes and the like. It particularly relates to pneumatic types having extruded tread portions of an exceedingly tough synthetic rubber.
It is an object of the present invention to provide an extruded tread for pneumatic tires which tread has improved properties combined with lower cost than those heretofore produced.
It is another object of the present invention to provide a mass of a rubber compound which does not stiffen in the coldest climates or which has clearly improved flexibility at low temperature combined with good abrasion and has other desirable physical properties.
It is a further object of the present invention to provide pneumatic tires having properties superior to those presently prepared which can be produced in volume utilizing the usual rubber machinery and which use less rubbery polymer.
Other objects will be apparent from the following description of the invention.
Only a few types or a few varieties of the many various types of synthetic rubber have been considered suitable for the manufacture of tires and in particular the treads of tires. This is because the rubber characteristics or qualities for tire treads are exacting and difficult to meet. Tire treads must be of uniform weight and cross-section; they must wear well and resist cracking both due to flexing and light; they must have substantial tensile strength and toughness. These qualities are had only in rubber compounds of the highest quality. Only highest quality rubber compounds are therefore used for good tires whereas in mechanical goods and especially in rubber footwear cost per unit of compound weight and not quality is the controlling factor.
Even though quality is of prime importance in tires, it is essential that tires be capable of being made in volume and to make tires in volume it is necessary that the rubber compounds used be capable of extrusion through an orifice (including calendering which is, in fact, extrusion through a die having rotation sides). It is only by such extrusion processes that tire treads have been made in volume and with uniformity.
Naturally, the rubber must be rendered sufficiently plastic for extrusion by apparatus of a rubber factory. Synthetic rubbers may be produced in a relatively tough state or in a relatively more plastic state as desired by simply regulating the percent of modifier. For example, a long chain mercaptan may be present in the mixture and the polymerization stopped at a point where the desired rubber is obtained. Larger amounts of mercaptan and lower degrees of conversion give more plastic synthetic rubbers with less cross-linking or gell formation.
Tough rubbers have always been broken down by long mastication or heat softening to a plastic or extrudable state before they are used in preparing tires for sale. This even though it has long been known that by an expensive and inefficient press molding operation (as distinguished from extrusion where material is forced through an orifice) a tread or at least a portion of a tread may be made without such breakdown or molecular degradation necessary for extrusion and that treads of such nonbroken down rubber have a much higher abrasion resistance than those of the broken down rubbers.
The earliest synthetic rubbers were made before the discovery of the effects of mercaptan and other modifiers and were therefore so tough that they could not be processed in the ordinary factory mill without extensive plasticization. Plasticization may be and was generally accomplished by extensive mastication and/or heat softening to cause degradation or breakup of the molecules of the rubber. After this molecular degradation was had, plasticizers usually in amounts of 15 percent or less were added to the rubber to further reduce plasticity.
Inasmuch as the use of plasticizers or softeners in rubber compounds has been shown to be undesirable and to result in marked deterioration in physical properties, the use of appreciable amounts of liquid plasticizers in rubber compounds of the quality required for pneumatic tires was not even considered or if considered, was never found to be useful. This reasoning was applied even to certain mechanical goods where quality was important. In tire treads the maximum amount of softener tolerable has been about 15 percent based on the weight of the rubber and only 5 to 10 percent is usually used. Very recent work has been directed to the softening of these tougher synthetic rubbers so that they can be used in a factory. The process used is to force air into the Banbury to accelerate deterioration of the polymer. We are unaware of any advantage in the process as the polymer is so deteriorated. Work has also been done to deteriorate or breakdown latex of tough rubbers in a vain attempt to utilize the advantage inherent therein.
With the discovery of the effect of modifiers and aliphatic mercaptans which permitted the production of more plastic rubbers of the general purpose type, synthetic rubbers suitable for tires were produced directly in the plastic stage where they could be processed in the factory with little, if any, premastication. The general trend is now toward even more plastic rubbers. This trend and this procedure was adopted even though as above indicated it has long been recognized that the tough rubbers when carefully processed and broken-down to a very limited extent provided superior tire treads than the softer rubber. It was reasoned and generally believed that inasmuch as the rubber necessarily had to be plasticized or broken-down for factory processing that one might, just as well start with a highly modified or soft rubber in the first instance and obtain the same end product.
We have found that the tough rubbers which were considered unprocessable and not suitable for making extruded tire treads in production may be mixed with relatively large amounts of one or more compatible oils or plasticizers to provide compounds of exceptional quality. Such compounds containing large amounts of softener have produced tire treads superior to those produced with the general purpose GR-S rubbers heretofore available and at very much reduced cost. The softener is incorporated, in accordance with the present invention, in the rubber before the rubber is deteriorated by mastication and preferably while the rubber is in a finely divided state such as is present in aqueous dispersions or in a crumblike state with small particles which may be separated by a pigment such as carbon black. Mastication in the presence of large amounts of softener added in the stages of the mastication procedure prevents the breakdown of the rubber such as is had by the usual masticating procedures.
The process employed is described thus in the patent specification:
In order to obtain maximum advantage from the tough high Mooney rubbers these rubbers should be combined with oil when in the finely divided state so that the oil can enter (be absorbed) between molecules of the rubber to facilitate slippage one on the other before they are ripped apart and broken-up by mastication. If the high Mooney rubbers are obtained in the form of a bale or large mass, they should for best results be pulverized or granulated to a powdery or crumblike state prior to contact with the oil. Such is accomplished without deteriorating the rubber. In contrast to low Mooney rubbers such as standard GR-S (Government Synthetic rubber, a general purpose butadiene-styrene copolymer), the high Mooney rubbers, when masticated in a Banbury mixer, will usually form a pulverant mass because of the lack of plasticity when they are incorporated into a Banbury mixer or the like. Frequently, however, this is not the case. In such cases pulverization of the entire material may be accomplished by adding small amounts of carbon black or other pigment with the rubber before plasticization has occurred so that the rubber particles are insulated from each other and prevented from being packed together as they are formed by the mixing apparatus. When the required amount of oil or other suitable plasticizer is added at the time the material is in a finely subdivided condition it is uniformly absorbed and best results are obtained. Addition of large proportions of oil used in the practice of the present invention to a large solid mass of rubbery polymer makes it more difficult to produce a homogeneous compound. When the rubbers are in the finely divided state, they are rapidly swelled by the oil without deterioration and the rubber particles thereafter readily agglomerate to form a plastic mass.
By utilizing our preferred procedure factory processable rubber compounds may be made in the very short time commensurate with ordinary procedures based upon the relatively highly modified and easily processable commercial synthetic rubbers. The rubber articles such as tire treads produced from the compounds having large amounts of oil are equal to and in many cases considerably superior in properties to those produced from conventional mixes.
When the rubber is available in the form of a latex, the oil is preferably first emulsified and incorporated in the latex in the emulsified form and the mixture suitably coagulated. Preferably a so-called shock method of coagulation is used wherein the coagulable latex-oil emulsion mixture is passed into a large mass of coagulating medium such as salt and acid. Even unemulsified oil may also be incorporated into the wet coagulum or crumb even in the presence of free drainable water and it is found it will be selectively absorbed even in the presence of such water.
In the compounding of the synthetic rubber-oil mixtures the total quantity of oil plus synthetic rubber is considered to be rubber. By this method compounds formed in accordance with the present invention generally have hardness and physical characteristics similar to normal compounds made from commercial easy processing synthetic rubbers. To illustrate this, a good tread compound having 100 parts of rubber and 50 parts of carbon black generally gives properties which are desirable. Using tough rubber-oil combinations with 100 parts of rubber and 100 parts of oil, we would utilize 100 parts of the carbon black for about equal hardness and comparable properties.
Typical of the 22 claims of the patent are the following:
A curable rubber tread stock the principal ingredients of which are an aliphatic hydrocarbon compatible synthetic hydrocarbon polymer of a conjugated diolefinic compound of less than 8 carbon atoms, 20 to 100 parts of a compatible plasticizer to 100 parts by weight of said polymer and a high abrasion furnace black in an amount of at least 35% by weight of the combined polymer and plasticizer, said polymer having a Mooney viscosity of at least 100 prior to compounding with said plasticizer and the proportion of plasticizer and carbon black in the composition being that required to produce a tread stock having a Mooney viscosity of from 30 to 70.
A curable rubber tire tread stock comprising essentially a hydrocarbon-oil-compatible, rubbery, synthetic hydrocarbon polymerization product of a conjugated diolefinic compound having not in excess of 8 carbon atoms, which compound has a raw Mooney plasticity of at least 90 (ML-4), a reinforcing carbon black pigment, and at least 30 parts by weight of a compatible plasticizer per 100 parts of said polymerization product, said rubber tread stock containing from 30 to 80 parts by weight of said reinforcing pigment per 100 parts by weight of the combined amount of said polymerization product and said plasticizer present, and said tread stock having a Mooney plasticity (ML-4) not appreciably in excess of 80 and not substantially less than 40.
A curable rubber tire tread stock comprising essentially a hydrocarbon-oil-compatible, rubbery, synthetic hydrocarbon polymerization product of a conjugated diolefinic compound having not in excess of 8 carbon atoms, which has a raw Mooney plasticity of at least 90 (ML-4), a reinforcing carbon black pigment, and a compatible oily plasticizer, there being from 30 to 100 parts by weight of said oily plasticizer to 100 parts by weight of said polymer and from 30% to 80%, by weight of said carbon black, based on the combined weight of said polymer and said plasticizer present, and said tread stock having a Mooney plasticity (ML-4) not appreciably in excess of 80 and not substantially less than 40.
The District Judge who tried this case made the following finding concerning the problem the inventors were seeking to solve:
[T]he conventional commercial manufacture of the tread portions of pneumatic tires at the time of the invention of the patent in suit was as follows: Butadiene-styrene rubber with a plasticity of about 50 Mooney was mixed with about 50 parts of carbon black and about 8-12 parts of hydrocarbon oil (both based on 100 parts of rubber) and mixed in a Banbury for a total of about seven minutes, then extruded to form the tread portion of the tire. The equipment, procedures, and times employed were basically the same as those that had been used for processing natural rubber prior to World War II. The use of high Mooney rubber (90 Mooney and above) was avoided because it was too tough to process commercially into a tire tread or tread compound, even though it had been known from the early 1940's that its abrasion-resistant properties were superior. The use of amounts of oil beyond 8-12 parts was also avoided, even though it had been known for years that oil was a softener for rubber, because it was thought that more oil was incompatible with the maintenance of the high physical properties demanded of a tread rubber. It was in the context of this art that the inventors began their work.
The features of this invention emphasized by General are these:
1. The employment of a polymer of over 90 Mooney in place of the customary 50 Mooney polymer.
2. The economical increase of the amount of synthetic rubber for tire tread stock by extension of the polymer by addition of 20 parts or more of oil where previously it was thought that such amounts of oil would degrade the quality of the tire.
3. The addition of the oil when the polymer was in a finely divided state (crumb) so that the oil mixed quickly with the polymer without long mastication which tended to degrade the polymer.
4. The employment in making an oil extended synthetic rubber of the normally used factory machinery without any extension of production time.
5. The development of a synthetic rubber of at least comparable characteristics as to resistance to friction and heat buildup and superior characteristics as to use in frigid climates.
This record makes clear that the novelty claimed lies in the use of high Mooney polymer, in the proportions of oil and carbon black added, and in the method of processing the components rather than in the addition of any new ingredient to the compound.
The patent in this case, as noted above, was granted by Judge Holtzoff's decision thirteen years ago after the same issues (anticipation, obviousness, and indefiniteness) now sought to be raised before us were vigorously litigated. General Tire Rubber Co. v. Watson, 184 F. Supp. 344 (D.D.C. 1960). These same issues were subsequently presented to the British courts. The Supreme Court of Judicature — The Court of Appeals — made a thorough, indeed a brilliant, analysis of each of these three issues (albeit on a somewhat different record and legal standards) and affirmed the validity of the patent as determined by the British trial court. We now have before us a judgment of the United States District Court for the Northern District of Ohio, Eastern Division, again affirming the validity of this patent against Firestone's objections. This judgment has been arrived at after nearly five years of trial proceedings in two different District Courts. We do not rely too heavily upon either the District Judge's opinion or his extensive findings of fact, since they bear the unmistakable stamp of the work product of General Tire's attorneys. But we certainly cannot ignore the fact that the trial judge who heard and reviewed these reams of testimony resolved the basic issues pertaining to this patent in favor of its validity.
General Tire Rubber Co. v. Firestone Tyre Rubber Co., Ltd., [1971] R.P.C. 173 (Ch. 1970), aff'd, [1972] R.P.C. 457 (C.A. 1971).
The patent in suit has been held to be valid in England. See note 4, supra. In South Africa a related patent, though viewed as novel, was held as invalid because of the indefiniteness of a term not present in the patent before us. Related patents were held to be invalid in France and Mexico.
We thus turn an eye, somewhat influenced by the history of this litigation, to examine once again what so many other judges have considered. Stated in other words, this patent comes to us for review with a high presumption of validity. 35 U.S.C. § 282 (1970); Radio Corp. of America v. Radio Engineering Laboratories, Inc., 293 U.S. 1, 7, 55 S.Ct. 928, 79 L.Ed. 163 (1934); Cold Metal Process Co. v. Republic Steel Corp., 233 F.2d 828, 837 (6th Cir.), cert. denied, 352 U.S. 891, 77 S.Ct. 128, 1 L.Ed.2d 86 (1956); Midland Steel Products Co. v. Clark Equipment Co., 174 F.2d 541 (6th Cir.), cert. denied, 338 U.S. 892, 70 S.Ct. 243, 94 L.Ed. 548 (1949); Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 298 F. Supp. 435 (W.D.Mich.), aff'd, 430 F.2d 221 (6th Cir.), cert. denied, 401 U.S. 939, 91 S.Ct. 932, 28 L.Ed.2d 218 (1969); United States Plywood Corp. v. General Plywood Corp., 230 F. Supp. 831, 837 (W.D.Ky. 1964), aff'd, 370 F.2d 500 (6th Cir. 1966), cert. denied, 389 U.S. 820, 88 S.Ct. 39, 19 L.Ed.2d 71 (1967).
Firestone's appeal attacks the District Judge's upholding of the validity of this patent. Firestone claims 1) that the patent was anticipated by the prior art, 2) that the alleged invention was clearly obvious under Section 103 ( 35 U.S.C. § 103), and 3) that the claims of the patent are vague and unduly broad, i. e. indefinite.
Anticipation
We understand thoroughly that General's invention was by no means the first attempt to use oil in making synthetic rubber. The use of oil in small quantities as a plasticizer was standard practice in the synthetic rubber industry. In addition, from time to time there had been efforts to experiment with addition of larger quantities of oil. The British Court of Appeals pointed out accurately, we believe, that the Semperit (a) (Application S153,625) and Semperit (c) (Application No. 157,456) patents (Austrian) relied upon by Firestone did not teach the minimizing of mastication of the polymer and that the Wilmington patent did not teach the use of a high Mooney polymer. Since these features are the essence of General's patent, we agree that these publications do not represent anticipation.
These publications had also been urged upon Judge Holtzoff without success.
The United States Government's Tire Test Reports 111 and 123 represent a serious challenge to this patent. Yet in the end in our review of these two tests, we cannot hold that the District Judge's conclusion that they were "abandoned and taught away from, not toward the invention" was "clearly erroneous." Test Report 123 was the later of the two tests and was in part occasioned by Test Report 111's showing of success with a 97 Mooney tire. The conclusion of Test Report 123, however, was to recommend a polymer of 50 Mooney cold rubber, and commercial production thereafter was based upon 50 Mooney rubber. It is true that these tests of polymers with different Mooney ratings and different oil loadings might have revealed the possibilities of success with the employment of a high Mooney polymer and substantial oil extension. Perhaps because of additional processing or perhaps because of the industry's established aversion to oil because of degradation of the rubber, no such result was realized or recommended.
The District Judge's findings which follow are not contradicted by this record and are not clearly erroneous:
165. The conclusion drawn from Tire Test 123, as stated in the final report prepared by Rubber Reserve test fleet and approved by Mr. Greer, the head of research and development for the government and one who had followed the test closely, was that:
"The outstanding experimental polymer from the standpoint of treadwear was the Cumene-hydroperoxide 50 Mooney rated 21% superior to control GR-S-10 in this respect."
166. The Court finds that the experimental work allegedly involving higher-than-normal viscosity rubbers in Tire Test 123 was abandoned and taught away from, not toward, the invention:
(a) In accordance with the conclusion of the final report on Tire Test 123, 50 Mooney cold rubber went into large scale commercial production thereafter and eventually became the standard rubber for tire treads. In contrast, cold rubber having a Mooney above 65 Mooney was not commercially produced or used for tire treads until after General's invention.
(b) The results of the test itself discouraged further work with high Mooney rubber. It emphasized the 50 Mooney rubber as the outstanding polymer, and it showed that the high Mooney rubbers could not be processed in the ordinary time or manner.
(c) Unfavorable comments on the high Mooney-high oil aspect of the tests were reported by personnel at Phillips.
(d) Unfavorable comments on the high Mooney-high oil compounds were also expressed by Lake Shore personnel. In March, 1951 after General's invention had been announced, an inquiry about the Tire Test 123 work was made of Mr. Roy E. Rude, technical manager at Lake Shore when the tests were made and a major participant in them. He wrote that he was a "low Mooney advocate" and that as a result of Tire Test 123 work, Lake Shore would "not recommend the use or incorporation of over 12 parts of softener." Further, regarding Tire Test 123, he said:
"We discontinued our experimentation on high Mooney GR-S with high oil to work on cold rubber. The better polymers on cold rubber have shown to be ones with low Mooney but no advantage was seen in the very high Mooney polymers, in particular with the high oil."
(e) Mr. Greer, in trying to determine what General's invention was, considered the high Mooney-high oil work reported in Tire Test 123, but he concluded General's most likely course was with low Mooney rubber and high amounts of carbon black.
Obviousness
Judge Holtzoff's pertinent and accurate description of how General happened upon this invention is perhaps as good a way as any to open discussion of this topic:
We now reach the history of the appellants' invention. The three individual inventors were research chemists or chemical engineers employed in the laboratory of the corporate plaintiff, the General Tire and Rubber Company. Late in 1949, when the industry was searching for additional means to increase the supply of rubber, the three inventors conceived the project of using tough rubber, which had been regarded as useless, for inferior purposes such as rubber mats for automobiles. In order to make this rubber usable for these purposes, they began to mix it with large quantities of oil. They discovered accidentally that instead of merely making it possible to employ for inferior purposes rubber of a type that had been regarded as not usable at all, they were producing a high quality of rubber suitable for tire treads. They found that mixing oil in large quantities of over 20 parts of oil to 100 parts of rubber with very tough rubber, or high Mooney rubber as it was known in the trade, increased the amount of the final product. They not only made it usable but they improved its quality and found that it was excellent for tire treads.
Thus we have a development that was discovered accidentally by research scientists who were working with an entirely different objective in mind than the one which they finally achieved. This was not an invention, in other words, laboriously derived through trial and error or attained by a long process of experimentation. It was one of those unusual situations where a discovery is made or an invention designed accidentally while the inventor or discoverer was in the throes of a somewhat different development.
The present statute emphasizes the proposition that it makes no difference as to patentability by what manner an invention is made. 35 U.S.C. § 103. The fact, however, that the discovery was made accidentally by a person skilled in the art, while others had been working to find other ways and means to achieve the same general objective, namely, to increase the supply of usable rubber, would seem, to some extent at least, to negative the contention that the invention was obvious. This circumstance, of course, is not conclusive, but it is one of the many matters that are worthy of consideration in that connection. General Tire Rubber Co. v. Watson, 184 F. Supp. 344, 347 (D.D.C. 1960).
In the British Court of Appeals decision upholding the British patent, the opinion of Lord Justice Sachs pointed significantly to a recognized "gap" in the industry's knowledge concerning tire making:
The plaintiffs in their specification propounded the existence in 1950 of a gap in industrial knowledge which was in the first instance judgment, [1970] F.S.R. at 284,[*] stated in the following terms:
[*] [1971] R.P.C. at 222.
"It was realised that if one could process tough rubbers in such a way as to retain their long molecules and therefore their high abrasion resistance after manufacture, a very good tyre could be produced, but the difficulty apparently was that no one realised how to do it".
The existence in 1950 of that gap was challenged in this court. However, in a well-known publication of Firestone (U.S.A.), the parent company of the first defendants, called "Synthetic Rubber Facts" (Vol. N, page 7), it has, since the date of the patent, been stated:
"It had been known for some time that high Mooney polymer had superior treadwear resistance, but this property could not be exploited because of the difficulty of processing the polymer".
Moreover, in an internal memorandum (dated 17th January 1951 — G. 5, 5,071), the Manager of the Research Division of Goodyear, a rival company to the plaintiffs in the U.S.A., also refers to this gap. (That memorandum deals with the researches set in train by the 21st November 1950 (G. 10, 10,026) memorandum from the U.S. Office of Rubber Reserve after the plaintiffs had, on 7th November 1950, written (G. 5, 5,067) to the latter saying they had made an important discovery — the "22 per cent. more rubber" letter to which further reference will be made.) The Goodyear "Story of the Tire" (G. 11, p. 11,248B) contains this passage:
"The rubber chemist had long believed that tough rubbers possess higher quality than the softer rubber ordinarily used, but there was no feasible way to employ them, because of processing difficulties with conventional rubber factory production equipment".
On that footing the 1950 problem was as to how to process tough polymers in the requisite way so as to provide results which were commercially useful and at the same time economically viable, for which purpose the polymers would have to have the least practicable degree of degradation.
From the evidence taken as a whole — including the two extracts cited — it is manifest that, industrially speaking, a gap as defined by the trial judge existed in 1950 and that it produced the above related problem. It is no less clear that the process set out in the patent-in-suit provided the answer to the problem. Further it is plain, as indeed, is conceded by the appellants, that immediately after June 1951, (when the plaintiffs publicised it in an issue of "India Rubber World" — G. 6, 6,060) that process commenced to be adopted by the tyre manufacturing industry and that in due course it achieved the great commercial success already mentioned. General Tire Rubber Co. v. Firestone Tyre Rubber Co., Ltd., [1972] R.P.C. 457, 477-478 (C.A. 1971).
While these observations come from a different legal jurisdiction and from a different record, we believe their logic to be fully applicable to our case and we adopt it.
One of the ways by which a showing of obviousness may be rebutted is to point to a long-felt and (up to the point of invention) unfulfilled need. Graham v. John Deere Co., 383 U.S. 1, 17-18, 35, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); Inland Mfg. Co. v. American Wood Rim Co., 14 F.2d 657, 659 (6th Cir. 1926); American Ball Bearing Co. v. Finch, 239 F. 885, 889 (6th Cir. 1917).
The need was felt in 1950 and General's invention filled it.
Still another (albeit not necessarily controlling) factor tending to rebut obviousness is immediate acceptance of the invention in the art. United States v. Adams, 383 U.S. 39, 52, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966); Forestek Plating Mfg. Co. v. Knapp-Monarch Co., 106 F.2d 554, 558 (6th Cir. 1939).
That such acceptance followed General's invention is beyond dispute. Oil extended masterbatches became the standard production item in the Government's synthetic rubber plants. Every major tire company used such masterbatches in compounding their tire treads.
The initial reaction of the industry to General's first announcement that it had a method of producing 22% more rubber was skepticism and scorn. The Government reacted to General's offer to sell its invention for $60,000,000 by efforts to determine what the invention was. In spite of its possession of all of the prior art, including Tire Tests 111 and 123, it completely failed to do so.
The answer probably can be found in the testimony of one of Firestone's witnesses in the High Court of Justice, Chancery Division:
Q. "Did you find anything technologically surprising in the development, as opposed to economically"?
A. "Yes; I must honestly say that we were surprised that one could use such quantities of oil."
Q. "Such big quantities"?
A. "Yes . . . We had got so accustomed to the oil loading we had used for many years, that one regarded the levels we were using of 5 or 8 parts as being normal. 45 parts of oil of course seemed, you know, an astonishing amount to use, even if it was a high Mooney rubber."
We conclude that General's patent is valid as against the claim of obviousness.
Vagueness and Undue Breadth
This court's last adventure with a patent case of this magnitude turned on a finding that an immensely valuable patent upon the oxygenation process for making steel was invalid for undue breadth. See Kaiser Industries Corp. v. McLouth Steel Corp., 400 F.2d 36 (6th Cir. 1968). There this court concluded that the claims of the patent were so broadly drawn as to levy tribute upon practically any method of employing oxygen to make steel.
We have reviewed the claims of this patent with the Kaiser case clearly in mind and find utterly different conclusions. The claims are made applicable to polymers of specific Mooney ratings (not less than 90 and in a nonbrokendown state) combined with hydrocarbon oil and high abrasion carbon black additions in specifically named parts. The claims are, in our view, reasonably clear to possible infringers and so limited as properly to claim the invention without claiming any and all oil additions to rubber polymers. Hence, we affirm the Direct Judge's rejection of Firestone's claims of vagueness and undue breadth.
Although the issue is not squarely raised by Firestone's appeal, we have sua sponte given much though to whether the first 12 of the claims of the patent in suit are void for undue breadth in a totally different sense. These claims all begin:
"What we claim is:
"A pneumatic tire having a tread portion comprising a volcanized synthetic rubber compound containing, etc."
The invention involved herein is, of course, not a tire at all. It is as the later claims describe it "a curable rubber tire tread stock." The invention does not describe a single feature of a tire except General's newly formulated synthetic rubber tread stock. There is no dispute but that this stock is extruded through dies and processes old in the art and attached to the tire carcass, stitched and vulcanized in processes and machinery also old in the art.
In the end we have concluded that the language of these claims immediately following the words "a pneumatic tire" is so restrictive as to require them to be read to claim "a tread portion [of a pneumatic tire] comprising a vulcanized synthetic rubber compound containing, etc." Under this reading we find no occasion to enter a holding of invalidity.
We find no merit to Firestone's appeal concerning infringement.
We affirm the judgment of the District Court holding General Tire's Patent No. 2,964,083 to be valid and infringed.
The Research Contract, The General Tire Patent No. 2,964,083 and Their Relationship
The decision just announced above may, however, prove to be of relatively little value to General. For as we indicated at the outset, we also hold that General is obligated by the explicit terms of its Research Contract with the Reconstruction Finance Corporation to give a royalty-free license to practice this invention to the RFC and its nominees, of which Firestone is clearly one.
In 1949 RFC and General entered negotiations upon a research contract. The contract was signed on January 17, 1950, but it was dated January 1, 1949, and contained provisions for reimbursement of General for research performed during the whole year of 1949. General billed and was paid by RFC for research during the last half of 1949. The scope of the research work was "rubber-like polymers" excluding a particular General Tire Patent No. 2,441,090, but including "carbon black masterbatches."
In June of 1949 General first began experimenting with adding substantial amounts of oil to high Mooney rubber. General never disclosed any information concerning its work on oil extended rubber to the Government. As will be shown below, General's experiments progressed until November 7, 1950, when General first announced its invention of an oil extended rubber, following which it filed its patent application on November 20, 1950.
The interrelationship in time sequence between key events pertaining to the research contract and to the patent is set forth below: India Rubber World
January 1, 1949: Effective date of the Research Contract. June 1949: General researchers for the first time add oil and carbon black to high Mooney rubber. August 15, 1949: General establishes a special project, "Special Low Cost Wet Masterbatch for Tractor Treads and Second Line Passenger Treads." September-October 1949: Evaluation of various masterbatches of oil, carbon black, and rubber. January 17, 1950: Research Contract signed. January 24, 1950: Due to the success of the evaluation tests, General upgrades the project to test the treads for premium line tires. January 1950: Entire output at the Baytown plant, now operated by General, is in carbon black masterbatches. March 22-May 8, 1950: Tire tests conducted by General on the experimental tires geared for premium, not secondary, line tires. November 7, 1950: General's public announcement of the invention and statement that tests showed that treads made according to the invention were better than conventional tires. November 20, 1950: Patent application filed by General. January-February 1951: Government work undertaken which attempted to discover General's invention. June, July, August 1951: articles concerning invention. Fall 1951: General begins making and conducting developmental work on oil masterbatches at Baytown, at the Government's request. [77] The Research Contract is printed in full with this opinion as Appendix B, but the portions of it which we deem critical to decision follow:
WHEREAS, the Operating Agreement provides for the reimbursement by RFC to Contractor of the cost of conducting research, experimental, laboratory, developmental, and pilot plant work to the extent approved in advance by RFC in accordance with arrangements to be mutually satisfactory to RFC and Contractor (all such work being hereinafter referred to as "Research Work"); and
WHEREAS, it is deemed desirable that an arrangement be made between RFC and Contractor relative to patent and other rights which may result from the conduct of the Research Work authorized hereunder;
* * * * * *
3. The applied and developmental Research Work to be conducted hereunder shall be directed to the determination of generally accepted principles for, and to the adaptation of such principles to techniques for, the production of rubber-like polymers of butadiene, and of rubber-like copolymers, mixed polymers and interpolymers of butadiene with styrene; the content of butadiene being within the range of 50% to 100% by weight of the rubber hydrocarbon present. The scope as above indicated excludes any work under or related to Contractor's "wet smear" invention, covered by Patent No. 2,441,090, but includes carbon black masterbatches and may be further extended by mutual agreement in specific instances.
4. Contractor shall prepare and submit to RFC monthly progress reports and final reports covering in detail all work done hereunder. Said monthly reports shall be submitted not later than the fifteenth day of each following month, and in addition said final reports shall be prepared and submitted promptly upon completion of each distinct subdivision of the work. In addition to said reports, Contractor shall send a representative, well informed in the research provided for, to such meetings as RFC may call.
5. Contractor shall also promptly report and make fully available to RFC or its nominees all information within the scope, as defined in paragraph 3 above, of the research conducted for RFC hereunder (whether patented, patentable, or unpatentable, and irrespective of whether resulting from work reimbursed by RFC) developed or acquired from any source during the term of this contract by Contractor or its Subsidiaries and Affiliates (Companies in which Contractor now has or may in the future acquire, directly or indirectly, fifty per cent (50%) or more of the stock having the right to vote for directors).
6. In addition to the information submitted under paragraphs 4 and 5 above, Contractor shall disclose and make available to RFC or its nominees, to the extent and whenever requested, all information in the possession of Contractor or its Subsidiaries and Affiliates during the term of this contract, which is outside the scope of the research conducted for RFC hereunder, but which is necessary in connection with the utilization of the information so submitted in the production or use of rubber-like polymers, copolymers, mixed polymers and interpolymers of the composition defined in paragraph 3 above; whether or not any of such information results from work, the cost of which is reimbursed by RFC, or whether it is patented, patentable or unpatentable; but such additional information specifically shall exclude that pertaining to subsequent compounding of synthetic rubber, its latices and master-batches, or pertaining to the preparation of butadiene, styrene, isoprene, vinyl monomers, and of other raw materials, or pertaining to the preparation of accelerators, antioxidants, catalysts, extenders, plasticizers, carbon or lamp black, and of any other agents for use in the aforesaid production or use.
7. Contractor hereby grants to RFC and its nominees (1) a royalty-free license to utilize without limitation any information or invention (whether or not patented) resulting from the research authorized by this contract, including the right to reproduce, disclose to others, and publish all such information or inventions, and including the right to make, use and sell thereunder, and (2) a royalty-free license to use any information or invention to which RFC or its nominees are entitled under the provisions of paragraph 5 above, including the right to reproduce, disclose to others, and publish all such information or inventions, but limited to the utilization of the same in the production, use or sale of general purpose synthetic rubber suitable for use in the manufacture of transportation items such as tires or camel-back, and (3) a royalty-free license with respect to any information or invention made available under the provisions of paragraph 6 above, limited to the utilization of the same in the manufacture, use or sale of rubberlike polymers, copolymers, mixed polymers and interpolymers of the compositions defined in paragraph 3 above.
It thus appears that the Research Contract provided for a general scope of work set forth in paragraph 3, and a requirement of prior authorization by the government as to work on which reimbursement was sought. The contract also required: 1) General's disclosure to the government and its nominees of any information within the scope of the work as set forth in paragraph 3 resulting from General's authorized research work ( ¶ 4 ¶ 7(1)). 2) General's disclosure to the government and its nominees of any information within the scope of work, regardless of whether or not it was derived from reimbursed research ( ¶ 5). 3) General's disclosure to RFC and its nominees of any information in the possession of General outside the scope of the research contract but which is necessary in the use of information submitted in the production of rubber-like polymers but excluding information pertaining to subsequent compounding of synthetic rubber.
We believe that General's invention was exactly the sort of research and developmental work which was contemplated by the contract. The scope paragraph (¶ 3), says clearly:
"The scope as above indicated excludes any work under or related to Contractor's `wet smear' invention, covered by Patent No. 2,441,090, but includes carbon black masterbatches and may be further extended by mutual agreement in specific instances."
As we have noted, the parties to this litigation have stipulated as to the meaning of "masterbatch":
"(A masterbatch rubber being rubbery polymer plus one or more but less than all compounding materials)."
Further, it is beyond dispute from this record that this invention is practiced commercially in the very synthetic rubber plants which the government built and as to one which it hired General first as operator-manager and then as research agent.
In addition, it is clear that General claims that its patent applies when the invention is practiced in synthetic rubber plants.
We hold that General's invention was within the scope of the Research Contract as set forth in paragraph 3.
We emphasize that our decision upon this Research Contract issue is based upon the explicit and unambiguous language of the contract itself, particularly that of paragraph 3 quoted above, and paragraphs 5 and 7(2) below:
5. Contractor shall also promptly report and make fully available to RFC or its nominees all information within the scope, as defined in paragraph 3 above, of the research conducted for RFC hereunder (whether patented, patentable, or unpatentable, and irrespective of whether resulting from work reimbursed by RFC) developed or acquired from any source during the term of this contract by Contractor or its Subsidiaries and Affiliates (Companies in which Contractor now has or may in the future acquire, directly or indirectly, fifty per cent (50%) or more of the stock having the right to vote for directors).
* * * * * *
7. Contractor hereby grants to RFC and its nominees * * * (2) a royalty-free license to use any information or invention to which RFC or its nominees are entitled under the provisions of paragraph 5 above, including the right to reproduce, disclose to others, and publish all such information or inventions, but limited to the utilization of the same in the production, use or sale of general purpose synthetic rubber suitable for use in the manufacture of transportation items such as tires or camel-back, . . . .
We can only construe paragraph 5 as requiring disclosure of the invention ("irrespective of whether resulting from work reimbursed by RFC") to RFC and to Firestone as an RFC nominee.
Similarly the plain language of paragraph 7(2) constitutes a grant from General of a royalty-free license to RFC and Firestone as RFC's nominee to use General's invention "in the production, use or sale of general purpose synthetic rubber suitable for use in the manufacture of transportation items such as tires." General's invention clearly was a "general purpose synthetic rubber suitable for use . . . in tires . . . ."
We are, of course, in as good a position to construe the actual contract language as was the District Judge. We find no ambiguity in this contract, and as written and executed, it is complete. The District Judge's holding that the contract was ambiguous and required extrinsic evidence for proper interpretation we believe to be erroneous as a matter of law.
We also hold that the District Judge's interpretation of the contract requiring Firestone to prove that General's invention was derived from reimbursed work was erroneous as a matter of law. To hold otherwise would require us simply to excise from the contract the whole of paragraph 5 and sub-paragraph 7(2).
There are many astonishing interpretations of this Research Contract contained in the findings of fact prepared by General Tire's attorney and adopted by the District Judge. To the degree that they purport to be construction of the contract itself and are in conflict with the holdings above, we deem them to be errors of law. To the degree that these findings are based upon extrinsic evidence, we hold as a matter of law that such evidence was not competent to vary the terms of this unambiguous contract. Local 783, Allied Industrial Workers v. General Electric Co., 471 F.2d 751, 757 (6th Cir. 1973); Gesing v. Grand Rapids Hardware Co., 362 F.2d 363, 366 (6th Cir. 1966); Calderon v. Atlas Steamship Co., 170 U.S. 272, 280, 18 S.Ct. 588, 42 L.Ed. 1033 (1898). See 3 A. Corbin, Contracts § 573 et seq. (1951); 9 J. Wigmore, Evidence § 2400 et seq. (3d ed. 1940).
We recognize the trend toward liberality in the admission of oral evidence concerning the negotiations which led to the execution of a contract. Restatement of Contracts, § 235(d), for example, states, "All circumstances accompanying the transaction may be taken into consideration. . . ."
See also 3 A. Corbin, Contracts § 579, at 414-20 (1960); 9 J. Wigmore, Evidence § 2430, at 98-99 (3d ed. 1940); Airborne Freight Corp. v. McPherson, 427 F.2d 1283 (9th Cir. 1970); Pacific Gas Electric Co. v. G. W. Thomas Drayage R. Co., 69 Cal.2d 33, 69 Cal.Rptr. 561, 442 P.2d 641 (1968). Although we view the District Judge's admission of extrinsic evidence to have been favorably inclined toward General Tire, we do not find it necessary to pass on every ruling he made excluding extrinsic evidence proffered by Firestone. General Tire's evidence did not in our view serve to alter the conclusion (stated above) that this contract as executed was complete and unambiguous, and hence not subject to interpretation by parol evidence.
The Fraud Charges
Much of this record consists of charges of fraud and bad faith brought by General against Firestone, particularly in connection with Firestone's prosecution of the Baltimore case and by Firestone against General in connection with General's assignment of the patent in suit to its wholly-owned subsidiary Pneuss of Brazil.
The judge who heard the Baltimore case entered findings contrary to General's charge that Firestone fraudulently created diversity jurisdiction by undertaking to carry the costs of litigation of its co-plaintiff, McCreary Rubber Co. Nor did the Fourth Circuit enter any findings of fraud when it ordered the transfer of the Baltimore case to Cleveland. Under these circumstances we think that the District Judge in the United States District Court in Cleveland, before whom the alleged fraud was not practiced, should not have proceeded to determine such charges.
As to General's assignment of the patent in suit to Pneuss, this in our view represents only one of many evasive measures indulged in by General to escape the effect of its obligations under the Research Contract which it had signed. No findings adverse to General in this or other issues have been entered by the District Court, and we have no inclination to remand any part of this altogether too lengthy litigation for any further proceedings of any kind. Neither party to this litigation has reached this point with the clean hands required for extraordinary equitable relief.
The judgment of the District Court, dated October 3, 1972, is affirmed as to paragraphs 1, 2, 3 and 4.
The judgment of the District Court, paragraph 5, is reversed and it is held that Firestone as a nominee of the Reconstruction Finance Corporation has a royalty-free right to practice and use the patent in suit.
Paragraphs 6, 7, 8, 9 and 10 are vacated.
The judgment of the District Court finding Firestone guilty of fraud in the Baltimore case is vacated.
Since neither party prevailed in the entirety, each will pay its own costs and attorney fees.
EXHIBIT A
United States Patent Office 2,964,083 Patented Dec. 13, 1960PNEUMATIC TIRES AND TREAD STOCK COMPOSITION
Emert S. Pfau, Gilbert H. Swart and Kermit V. Weinstock, Akron, Ohio, assignors, by mesne assignments, to The General Tire Rubber Company, Akron, Ohio, a corporation of OhioFiled November 20, 1950, Ser. No. 196,584 22 Claims. (Cl. 152 — 330)
Example 1
Example 2
FORMULA
Example 3
E S TExample 4
[Tire test (7.60 X 15)-Miles/0.001 of tread] ______________________________________________________________________ | | 195 Mooney | Tread Miles | (control) GRS | Polymer | Rating. | | | Percent ____________________ | _________________ | ________________ | ________ | | | | | 4,200 ______________ | 35.6 | 37.8 | 42.4 | 53.2 | 129 8,400 ______________ | 36.5 | 38.0 | 41.1 | 44.7 | 118 10,500 _____________ | 34.5 | 37.8 | 41.3 | 43.9 | 118 12,600 _____________ | 37.7 | 38.9 | 42.0 | 45.3 | 114 14,700 _____________ | 42.1 | 42.7 | 44.0 | 46.1 | 106 ______________________________________________________________________Example 5
Example 6
TABLE 9 [Tire test data-(7.50 x 15)]
Example 7
Example 8
Example 9
References Cited in the file of this patent UNITED STATES PATENTS
FOREIGN PATENTS
OTHER REFERENCES
UNITED STATES PATENT OFFICE CERTIFICATE OF CORRECTION
Patent No. 2,964,083 December 13, 1960Emert S. Pfau et al.
(SEAL) Attest: ERNEST W. SWIDER DAVID L. LADD Attesting Officer Commissioner of PatentsEXHIBIT B RESEARCH CONTRACT (RuR SR 40) between The General Tire Rubber Company and Reconstruction Finance Corporation
dated as of
January 1, 1949
(PX 1241)
WITNESSETH:
s/ s/ s/ s/ The present invention relates to the manufacture of pneumatic tires of the type suitable for use on various types of motor vehicles, airplanes and the like. It particularly relates to pneumatic types having extruded tread portions of an exceedingly tough synthetic rubber. It is an object of the present invention to provide an extruded tread for pneumatic tires which tread has improved properties combined with lower cost than those heretofore produced. It is another object of the present invention to provide a mass of a rubber compound which does not stiffen in the coldest climates or which has clearly improved flexibility at low temperature combined with good abrasion and has other desirable physical properties. It is a further object of the present invention to provide pneumatic tires having properties superior to those presently prepared which can be produced in volume utilizing the usual rubber machinery and which use less rubbery polymer. Other objects will be apparent from the following description of the invention. Only a few types or a few varieties of the many various types of synthetic rubber have been considered suitable for the manufacture of tires and in particular the treads of tires. This is because the rubber characteristics or qualities for tire treads are exacting and difficult to meet. Tire treads must be of uniform weight and cross-section; they must wear well and resist cracking both due to flexing and light; they must have substantial tensile strength and toughness. These qualities are had only in rubber compounds of the highest quality. Only highest quality rubber compounds are therefore used for good tires whereas in mechanical goods and especially in rubber footwear cost per unit of compound weight and not quality is the controlling factor. Even though quality is of prime importance in tires, it is essential that tires be capable of being made in volume and to make tires in volume it is necessary that the rubber compounds used be capable of extrusion through an orifice (including calendering which is, in fact, extrusion through a die having rotating sides). It is only by such extrusion processes that tire treads have been made in volume and with uniformity. Naturally, the rubber must be rendered sufficiently plastic for extrusion by apparatus of a rubber factory. Synthetic rubbers may be produced in a relatively tough state or in a relatively more plastic state as desired by simply regulating the percent of modifier. For example, a long chain mercaptan may be present in the mixture and the polymerization stopped at a point where the desired rubber is obtained. Larger amounts of mercaptan and lower degrees of conversion give more plastic synthetic rubbers with less cross-linking or gell formation. Tough rubbers have always been broken down by long mastication or heat softening to a plastic or extrudable state before they are used in preparing tires for sale. This even though it has long been known that by an expensive and inefficient press molding operation (as distinguished from extrusion where material is forced through an orifice) a tread or at least a portion of a tread may be made without such breakdown or molecular degradation necessary for extrusion and that treads of such non-broken down rubber have a much higher abrasion resistance than those of the broken down rubbers. The earliest synthetic rubbers were made before the discovery of the effects of mercaptan and other modifiers and were therefore so tough that they could not be processed in the ordinary factory mill without extensive plasticization. Plasticization may be and was generally accomplished by extensive mastication and/or heat softening to cause degradation or break-up of the molecules of the rubber. After this molecular degradation was had, plasticizers usually in amounts of 15 percent or less were added to the rubber to further reduce plasticity. Inasmuch as the use of plasticizers or softeners in rubber compounds has been shown to be undesirable and to result in marked deterioration in physical properties, the use of appreciable amounts of liquid plasticizers in rubber compounds of the quality required for pneumatic tires was not even considered or if considered, was never found to be useful. This reasoning was applied even to certain mechanical goods where quality was important. In tire treads the maximum amount of softener tolerable has been about 15 percent based on the weight of the rubber and only 5 to 10 percent is usually used. Very recent work has been directed to the softening of these tougher synthetic rubbers so that they can be used in a factory. The process used is to force air into the Banbury to accelerate deterioration of the polymer. We are unaware of any advantage in the process as the polymer is so deteriorated. Work has also been done to deteriorate or breakdown latex of tough rubbers in a vain attempt to utilize the advantage inherent therein. With the discovery of the effect of modifiers and aliphatic mercaptans which permitted the production of more plastic rubbers of the general purpose type, synthetic rubbers suitable for tires were produced directly in the plastic stage where they could be processed in the factory with little, if any, premastication. The general trend is now toward even more plastic rubbers. This trend and this procedure was adopted even though as above indicated it has long been recognized that the tough rubbers when carefully processed and broken-down to a very limited extent provided superior tire treads than the softer rubber. It was reasoned and generally believed that inasmuch as the rubber necessarily had to be plasticized or broken-down for factory processing that one might just as well start with a highly modified or soft rubber in the first instance and obtain the same end product. We have found that the tough rubbers which were considered unprocessable and not suitable for making extruded tire treads in production may be mixed with relatively large amounts of one or more compatible oils or plasticizers to provide compounds of exceptional quality. Such compounds containing large amounts of softener have produced tire treads superior to those produced with the general purpose GR-S rubbers heretofore available and at very much reduced cost. The softener is incorporated, in accordance with the present invention, in the rubber before the rubber is deteriorated by mastication and preferably while the rubber is in a finely divided state such as is present in aqueous dispersions or in a crumblike state with small particles which may be separated by a pigment such as carbon black. Mastication in the presence of large amounts of softener added in the stages of the mastication procedure prevents the breakdown of the rubber such as is had by the usual masticating procedures. The explanation appears relatively simple when it is postulated that all plastic flow is necessarily accomplished in high polymers by sliding of molecules over each other. As the molecules increase in size and become longer chains, the attractive force or interlocking of adjacent molecules or portions of molecules may be of greater strength than the primary valence bonds between atoms in the molecule especially under the oxidizing conditions present with the result that when mastication occurs some of these primary valence bonds are ruptured and the molecules become shortened. This takes place in ordinary rubber mastication and is evidenced by the increased plasticity and by the decreased physical properties of the final vulcanizate as well as by a decrease in intrinsic viscosity. It has been recognized that such degradation occurs, but as previously mentioned, it has been considered necessary processability in the factory which is a controlling factor. When a compatible oily plasticizer or a compatible plasticizer, which is liquid or viscous at the mixing temperature, is incorporated into the tough rubber, it apparently enters in between the molecules to lubricate them so that they slide more easily on each other so that they are not subjected to sufficient strain to rupture the bonds or the oil prevents oxygen attack and the polymer is not broken down or deteriorated to any appreciable extent as in the case where the mastication is accomplished in the absence of sufficient plasticizer for such lubrication or protection. Appreciable degradation of molecules by mastication is apparently only had when the molecules are sufficiently large for their intermolecular forces to be greater than the bond strength between molecules under oxidative conditions. After a given rubber has been deteriorated or plasticized to such an extent that the molecules are relatively small mastication may be continued with no physical rupture of the molecules. It is, therefore, seen that degradation by mastication alone is much more severe in the high Mooney or very tough rubbers which have large molecules than in the case of the softer or lower Mooney rubbers. As aforementioned the effect of liquid or solid plasticizers in large amounts is to deteriorate the properties of the ordinary compounds made from general purpose rubbers, particularly natural rubber. This is illustrated by Figure 1 of the drawing which shows the properties of an ordinary natural rubber tread compound having varying amounts of a rubber plasticizer therein. A comparison of the properties of the vulcanizates from such rubber compounds shows that as the plasticizer is increased the properties become progressively worse. In the case of the high Mooney or tough rubbers with which the present invention is concerned, it is found that some of the properties of a vulcanizate prepared from rubber compounds having a plasticity sufficient for processing are even improved by the addition of the oil plasticizers. Tough rubbers of which the present invention is concerned which are vulcanizates of a factory processable compound form articles such as tire treads which are improved with increasing addition of oil until a certain maximum is reached whereupon they decrease. Apparently, the deteriorating effect of the plasticizer is less than the improvement caused by the preventing of bond rupture during mastication through molecular separation or insulation until the amount of plasticizer becomes quite Large. It is, therefore, seen that properties at least as good as those obtained from the standard factory processable polymers without any plasticizer whatsoever may be obtained with relatively large amounts of inexpensive plasticizer or softener providing the rubber has sufficient toughness or high Mooney plasticity. In forming rubber compounds in accordance with the present invention it is as above indicated unnecessary and, in fact, we have found it undesirable to masticate and break down the high Mooney rubber so that it forms a compact band or plastic mass prior to the addition of the oil as was the general compounding procedure in the past. In order to obtain maximum advantage from the tough high Mooney rubbers these rubbers should be combined with oil when in the finely divided state so that the oil can enter (be absorbed) between molecules of the rubber to facilitate slippage one on the other before they are ripped apart and broken-up by mastication. If the high Mooney rubbers are obtained in the form of a bale or large mass, they should for best results be pulverized or granulated to a powdery or crumblike state prior to contact with the oil. Such is accomplished without deteriorating the rubber. In contrast to low Mooney rubbers such as standard GR-S (Government Synthetic rubber, a general purpose butadiene-styrene copolymer), the high Mooney rubbers, when masticated in a Banbury mixer, mixer usually form a pulverant mass because of the lack of plasticity when they are incorporated into a Banbury mixer or the like. Frequently, however, this is not the case. In such cases pulverization of the entire material may be accomplished by adding small amounts of carbon black or other pigment with the rubber before plasticization has occurred so that the rubber particles are insulated from each other and prevented from being packed together as they are formed by the mixing apparatus. When the required amount of oil or other suitable plasticizer is added at the time the material is in a finely subdivided condition it is uniformly absorbed and best results are obtained. Addition of large proportions of oil used in the practice of the present invention to a large solid mass of rubbery polymer makes it more difficult to produce a homogeneous compound. When the rubbers are in the finely divided state, they are rapidly swelled by the oil without deterioration and the rubber particles thereafter readily agglomerate to form a plastic mass. By utilizing our preferred procedure factory processable rubber compounds may be made in the very short time commensurate with ordinary procedures based upon the relatively highly modified and easily processable commercial synthetic rubbers. The rubber articles such as tire treads produced from the compounds having large amounts of oil are equal to and in many cases considerably superior in properties to those produced from conventional mixes. When the rubber is available in the form of a latex, the oil is preferably first emulsified and incorporated in the latex in the emulsified form and the mixture suitably coagulated. Preferably a so-called shock method of coagulation is used wherein the coagulable latex-oil emulsion mixture is passed into a large mass of coagulating medium such as salt and acid. Even unemulsified oil may also be incorporated into the wet coagulum or crumb even in the presence of free drainable water and it is found it will be selectively absorbed even in the presence of such water. In the compounding of the synthetic rubber-oil mixtures the total quantity of oil plus synthetic rubber is considered to be rubber. By this method compounds formed in accordance with the present invention generally have hardness and physical characteristics similar to normal compounds made from commercial easy processing synthetic rubbers. To illustrate this, a good tread compound having 100 parts of rubber and 50 parts of carbon black generally gives properties which are desirable. Using tough rubber-oil combinations with 100 parts of rubber and 100 parts of oil, we would utilize 100 parts of the carbon black for about equal hardness and comparable properties. Proper characterization of a given polymeric material may not always be made directly by means of a Mooney plastometer reading on the raw polymer, as gel content, gel distribution, and molecular weight affect the polymer and are not indicated by a Mooney plastometer. When a polymer is exceptionally tough so that it would have a Mooney reading about 120, slippage between the rotor and polymer frequently occurs with the result that the Mooney reading may be in error and not reliable. Furthermore, when the tough particles are distributed within softer particles of a rubbery polymer or when a non-homogeneous or a gel containing polymer is had, the Mooney plasticity reading frequently fails to characterize the polymer. Thus, while a Mooney plastometer is satisfactory in distinguishing between rubbers having no gel but of varying molecular weights until the Mooney reading is about 120 (where slippage or tearing may occur), it fails to distinguish between such rubbers and rubbers having substantial gel content. Gel containing rubbers require substantially increased amounts of plasticizer. Reference should be had to the accompanying drawings in which: Figure 1 is a graph showing the effect of softeners on the tensile strength of natural rubber; Fig. 2 is a graph in which the plasticities of various raw polymers are plotted against the amount of oil in compounds of the same polymer containing oil and carbon black in an amount equal to one half the combined weight of the polymer and oil to provide compounds having plasticities of 40, 60 and 80 measured as indicated on a Mooney plastometer, Fig. 3 is a graph in which modified "tensile product" value of various compounded polymers are plotted against their oil content to indicate the effect of the oil on certain physical properties of the compounds. We have found that in any given polymer modified so as to have substantially no gel, the amount of oil required to obtain a compound of a given plasticity varies directly with its Mooney plasticity and directly with its intrinsic viscosity. Thus, there is a substantially straight line relationship between the amount of a given oily plasticizer required to obtain a given compounded Mooney and the raw Mooney reading when plotted as illustrated in Fig. 2 providing a given carbon black such as a fine reinforcing furnace black for example "Phil-black O" (a structural type of fine high abrasion furnace black of the Phillips Petroleum Company) is utilized and the amount of the carbon black is equal to a given percentage of the total weight of rubber plus oily plasticizer say 50 percent at the total of these two materials. We have also found that the compounded Mooney of a given polymer varies in approximately a straight line relationship with the amount of a given oily plasticizer contained therein. If therefore, the polymers are of a non-gel type, and vary only by molecular weight as indicated by intrinsic viscosity measurements, then the curves obtained by plotting parts of oil necessary to obtain a given compounded Mooney (CML-4') versus measured raw Mooney of the polymer are approximately parallel lines especially when the accuracy of duplication and measurement is considered. We have made use of this fact as hereinafter further explained to develop the term "computed Mooney" which applies to all synthetic rubbery polymeric materials, regardless of how they are obtained. The "computed Mooney" of a gel containing polymer is the true Mooney of an equivalent gel free polymer. In Figure 2 calculated or "computed Mooney" is plotted versus parts of oil (Sundex 53) required in the various gel free polymers to obtain compounded Mooney values of approximately 40, 60 and 80 as shown by lines A, B, and C respectively with a short mixing cycle of not more than 12 minutes as hereinafter described. The computed Mooney and the measured raw Mooney are the same within accuracy of measurement at the lower values, i.e., below 120 for these gel free polymers. In order to properly prepare tires and particularly extruded treads of tires, the compounded Mooney of the compounds used should generally lie between 40 and 80. When the rubber compound is too plastic (too low a Mooney, for example much below 40) difficulty is had in holding shapes and when the compound is not sufficiently plastic, i.e., has over 80 Mooney, great difficulty is had in overheating and scorching in the extruding operation as is had in a calendar tuber or the like necessary for forming extruded tire treads of uniforms section. It is preferred that the compounded Mooney of the rubber compound be within the range of 50 to 70. Line B, the curve for compounded Mooney values of 60 is therefore squarely in the center of the range preferred for factory processing. The slope of this line was obtained by plotting the measured raw Mooney reading of gel free polymers against the amount of oil required to obtain a compound with a 60 CML-4' [compounded Mooney of 60 measured with the large rotor at four minutes). Slopes and positions for 40 CML-4', and 80 CML-4' lines were obtained in the same manner except that the compounds were made to 40, and 80 compounded Mooney respectively. One may find "computed Mooney" of a given polymer utilizing the graphs of Figure 2 by preparing a rubber carbon black mixture with a given amount of oil utilizing the mixing procedure described below and measuring the Mooney of the compound in the ordinary manner using the large rotor of a standard Mooney plastometer and reading the value at four minutes. If the measured four minute compounded Mooney (CML-4') of the compound falls in the neighborhood between 40 to 80 i.e. near any of lines A, B, and C the "computed Money" may be simply read from the scale designated "computed Mooney" using standard interpolation or extrapolation procedures. If the measured compounded Mooney is substantially removed from the range of 40 to 80 another compound with greater or less oil may be prepared showing a compounded Mooney closer to this range and the amount of oil and actual Mooney level may thereupon be read by interpolation procedures. As above explained, sample compositions made for the purpose of computing the Mooney viscosity of a polymer have a fine reinforcing-furnace carbon black (a high abrasion furnace black) content equal to one-half the combined polymer and oil content. As shown in Fig. 2, a sample having 30 parts by weight of oil to 100 parts by weight of polymer and a measured Mooney plasticity of 60, would have 65 parts by weight of said carbon black and the computed Mooney plasticity of the polymer would be approximately 90. It will be apparent that the polymer of any sample having 30 parts of oil and 65 parts of said carbon black and a measured Mooney plasticity greater than 60 will have a computed Mooney plasticity above 90. Conversely, a sample with 30 parts of oil and 65 parts of said furnace carbon black to 100 parts of a polymer of above 90 computed Mooney plasticity, will have a measured Mooney plasticity greater than 60. As will be seen from the graph in Fig. 2, a similar relationship holds true for samples requiring various oil contents to bring them to a workable plasticity. For example, a sample composed of 100 parts of a polymer, 40 parts of oil and 70 parts of said carbon black that has a measured Mooney plasticity of 60, has a computed Mooney plasticity of approximately 110, a sample composed of 100 parts of a polymer, 50 parts of oil and 75 parts of said furnace carbon black that has measured Mooney of 60, has a computed Mooney plasticity of about 130; and a sample composed of 60 parts of oil and 80 parts of said furnace carbon black that has a measured Mooney of 60 has a computed Mooney of about 150. The mixing procedure used for evaluating a polymer may, of course, affect the plasticity of the compounds obtained with a given amount of oil or softener. Longer mixing times, particularly in the presence of insufficient softener will considerably deteriorate the polymer and result in lower Mooney. Even in the presence of substantial amounts of softener the substantially increased mixing times have slightly adverse effects on the polymer. If, therefore, in preparing a factory batch insufficient oil has been added to provide the processability necessary for the factory operations, increased processability may be had by remixing the material without any additional oil. In preparing rubber compounds for evaluation the tough rubber is incorporated in a warm laboratory Banbury mixer (approximately 200° F.) worked for about one minute whereupon the tough rubber tends to break into fine crumbs which will not work into a cohesive mass in the Banbury. The oil is added in one or two increments depending on the amount of softener used and worked for four to six minutes. The oil should preferably be absorbed in the rubber before any carbon black is added, but the black can be added before the oil is completely absorbed if desired. When the polymer fails to break-up into a fine crumb in the Banbury a small amount of the black may be added initially to insure the formation of a fine crumb. The carbon black is added in several increments and worked four or five minutes until a fairly cohesive mass is obtained. Cold water is preferably circulated through the Banbury during the carbon black addition in order to prevent excessive temperature rise. The total mixing time should be only that required to obtain a cohesive mass. The mix should immediately be placed in a cold tight laboratory mill (6" X 12" rolls) and milled for two minutes at .050 separation of rolls allowed to cool one-half hour and the compounded Mooney determined. When the rubber compound is to be used for the production of rubber articles the usual compounding ingredients may be added on a second pass through the Banbury mixer requiring about two to four minutes for the addition of the materials. We have found that for any given "computed Mooney" reading or for any given actual measured Mooney in a given type of polymer there is a minimum amount of oil which is required for satisfactory processing without long and uneconomical mastication cycles and mixes. When the rubber into which the oil or other plasticizer is incorporated has a computed Mooney of 90 about 30 parts of oil or other liquid softener is usually required for each 100 parts of rubber to obtain a 60 Mooney compound (60 CML-4') and 20 parts of oil are required to obtain a 70 CML-4' which is on the less plastic side of the more desirable factory processibility range. Where the benefits of the present invention become more impressive i.e. at "computed Mooneys" above 115, at least 30 parts of oil are usually required to obtain a factory processable 70 Mooney compound and about 40 parts for a 60 Mooney compound using the 50 parts of black per 100 parts of rubber. When the "computed Mooney" plasticity (if the compound is gel free and prepared at low temperature) or when the measured Mooney is about 120, at least 35 parts and preferably about 40 parts of oil is desirable in order to provide the desired factory processibility. When the "computed Mooney" plasticity of the rubber is 150 or above, at least 45 to 50 parts of the oil are required to obtain the same processibility, and as much as 75 parts by weight of oil may be present per 100 parts by weight of a synthetic rubber without giving tire treads having inferior properties to those made from standard GR-S as presently manufactured. Even more oil, say 100 parts may be used when the black or pigment content is increased above the 50 percent of oil plus black which loading we have found to be exceedingly satisfactory. When the Mooney plasticity reads about 150. 50 to 75 parts of oil are generally most desirable for high quality tire treads. As much as 200 or even 250 parts of oil or other plasticizer may be used in some compounds with 100 parts of the toughest rubbers to obtain products of surprising value combined with low cost. It has been our experience that synthetic rubber having a computed Mooney of appreciably over 70 cause great difficulty in factory handling and have been considered undesirable for factory use without premastication or deterioration treatments. When the computed Mooney is 80 or above, factory handling according to prior methods has been substantially impossible. The maximum benefits of the present invention are obtained with synthetic rubbers having computed Mooneys much above those which are considered useable in factory production although substantial benefits of the present process are obtained when the computed raw Mooney of the synthetic rubber used is as low as 85. Greater benefits are obtained in accordance with the present invention when the computed Mooney of the raw polymer is 100 or more as the amount of oil used to obtain substantially the same properties is considerably increased without disadvantage and greater economies are effected. The low temperature properties of the rubber compound when the preferred low temperature plasticizers are used are improved with increased plasticizer content. The major benefits of the present invention are obtained when the Mooney plasticity is more than 115 or the measured Mooney of a gel free polymer is more than 115, all Mooney being measured with a large rotor at four minutes in accordance with standard procedures. We preferably prepare polymers with Mooney plasticity of 150 or more in order to use large volumes of inexpensive oil and obtain the tread wear inherent in these unbroken-down polymers. It is as aforementioned, preferred that these very high Mooney rubbers are polymers prepared by low temperature polymerization processes utilizing a highly accelerated system. The rubber should preferably be homogeneous or if present in mixture with other rubbers such as those of the general purpose type, should constitute a major portion or sufficient proportion such that the computed raw Mooney reading of the mixture is at least 85. The intermolecular forces of the higher Mooney rubbers with which the present invention is concerned must be greater than the intermolecular forces of the lower Mooney rubbers since attraction of plasticizer would seem to be the same in each instance. So it is readily seen that the compatible plasticizer should be somewhat more readily absorbed by lower Mooney than by higher Mooney synthetic rubbers. The soft rubbers with large amounts of plasticizer may in turn plasticize the tough rubbers when the "computed Mooney" of an uncompounded mixture. i.e. four minute Mooney reading, without the softener is much less than 85. The preparation of the softer rubber diluted with sufficient softener to become a composite plasticizer may become too great to be effectively disposed between tough polymers and a heterogeneous compound may result. It is apparent for this reason that any artificially created mixture of separately produced high and low Mooney rubbers should have a minimum computed Mooney of 85 to obtain advantages of the present invention. More benefits are of course obtained when the computed Mooney of the mixed polymer is well above 90 or 100 such as for example 115 or above. In preparing mixtures of high Mooney with low Mooney polymers the two materials should be of about the same plasticity when mixed in order to insure a homogeneous mixture. The high Mooney rubber is preferably mixed with the required amount of oil and plasticizer as aforementioned before it is combined with a lower Mooney polymer. Preferably, both polymers are mixed with the required amount of carbon black prior to combining them. However, reasonably good results are obtained when carbon black masterbatches of the lower Mooney polymer are incorporated with the high Mooney polymer prior to admixing the latter with the oil or plasticizer. The carbon black stiffens the lower Mooney materials particularly when the masterbatch is formed via the latex route and the lower Mooney polymer is unmasticated so that it may have substantially the same plasticity as the high Mooney polymer. It is emphasized, however, that the advantages of the present invention are reduced as the proportion of the high Mooney rubber in a mixture is reduced. The synthetic rubbers to which the present invention relates are polymers of conjugated diolefinic compounds such as butadiene, isoprene, dimethylbutadiene etc., having not in excess of and preferably less than eight carbon atoms. Copolymers of one of more diolefinic compounds such as those aforementioned with one or more copolymerizable mono-olefins such as the arylolefinic compounds such as alpha-methylstyrene, 3,4-dichloro-alpha-methylstyrene, p-acetyl-alpha-methylstyrene, and including the arylvinyl compounds such as styrene and halogenated and nuclearly methylated styrenes such as 2,5 or 3,4-dichlorostyrene, 3,4-dimethylstyrene, 3-chloro-4-methylstyrene and unsaturated polymerizable ketones such as methylisopropenylketone, and methylvinylketone. In the copolymers the total proportion of butadiene and/or other conjugated diolefinic compounds is ordinarily at least 50 percent of the weight of the copolymer. However, we have been able to prepare a very desirable rubbery material by adding oil thereto with as much as 85 percent of monoolefinic compounds such as styrene and 15 percent of butadiene or total conjugated diolefinic compound. Such materials are not suitable for tire treads but are the subject matter of related applications intended to be filed shortly. The plasticizer should be compatible with the synthetic rubber and any compatible plasticizer even solid or semi solid plasticizer may be used. However, liquid or oily plasticizers are generally considerably superior and liquid plasticizers with a low pour point are ordinarily much superior for low temperature rubbers. In the case of synthetic rubbers made from butadiene or a conjugated diolefin and styrene and in other hydrocarbon rubbers generally, including polybutadiene and polyisoprene, the plasticizer is preferably a mineral oil having a boiling point well above temperature to be encountered in use. For ordinary usage the plasticizer should not boil below 450° F. and preferably should not boil below 550 or 600° F. Of these, those mineral oils having a low aniline point or high aromatic content are much preferred, especially when the rubber contains styrene or has appreciable amounts of aromatic components. The particular plasticizer is often selected because of the use for which the rubber article is intended. In the case of tires intended for arctic use, we have found that rubber treads having exceedingly desirable low temperature flexibility may be made by utilizing oils both hydrocarbon oils of low pour point and others such as ethers that are compatible as the softener. This even though the boiling point may be much lower than the 450° F. most desirable for high temperature use. Most high boiling esters are not sufficiently compatible with the high Mooney general purpose synthetic rubbers such as polybutadiene and copolymers of butadiene with styrene and/or methyl isopropenyl ketone to be used alone in the large amounts required. They may be used in admixture with a compatible plasticizer. Ester plasticizers are not as desirable and do not give the desirable properties in hydrocarbon rubber compounds that were obtained by the inexpensive mineral oils although some of the benefits are obtained. Even when the rubber is entirely hydrocarbon as in the case of GR-S and polymers of diolefinic compounds such as polybutadiene or polyisoprene rubbers, some of the benefits of the present invention are obtained by the use of other plasticizing agents such as cumar resins, cumarone-indene and various mineral rubbers and the like. These may be substituted for a part of the oily softeners aforementioned to obtain special properties. While mineral oils are preferred as the oily plasticizer and give compounds with exceptional properties, other oily materials such as coal tar oils and the like may also be used for part or all of the plasticizer. What is believed to be the best arctic or low temperature rubbery compound yet produced is obtained by the present invention utilizing a substituted phenol (such as Cardolite, which is a lower alkyl ether of an alkylated phenol having about 15 carbon atoms in the aliphatic side chain usually having the formula — C[15]H[(27-31)] and the lower alkyl group attached to the oxygen generally has no more than 4 carbon atoms) as the plasticizer in a rubbery polymer of a butadiene or in a hydrocarbon copolymer of a diolefin and a hydrocarbon mono-olefin such as styrene containing at least 50 percent of the conjugated diolefin such as butadiene. The plasticizers listed below in Table 2 have used in the practices of the present invention. The hydrocarbon plasticizers, and phenols substituted by unsaturated aliphatic compounds are preferred for hydrocarbon polymers or hydrocarbon synthetic rubbers. The various plasticizers or oils are not therefore equivalent but we have found them useful in obtaining various desirable specific properties in the compounds formed from the high Mooney rubbers. The following are examples of the various types of plasticizers showing identifying data, trade names, manufacturers or suppliers and relative "heat loss" after exposing the oil for the time indicated at 300° F. The polymers having a high "computed or calculated Mooney" as aforedescribed may be prepared by any of the polymerization processes including emulsion and mass free radical polymerization processes and also by the ionic polymerization process including both the alfin catalyst process and the Friedel-Crafts catalyst process. When the rubbers are prepared in emulsion, those synthetic rubbers produced with a redox type system at temperatures substantially below 60° F. we have found produce articles which have superior properties. These so-called cold rubbers particularly when they are made below 50° F. in the presence of some very minor amounts of a modifier are generally substantially gel free or have longer chains in proportion to the number of cross-links than have the higher temperature polymers. They, therefore, apparently have much longer molecular chains. In connection with the so-called alfin process wherein the polymerization is conducted with the alfin catalyst as described in Rubber Age, volume 65, page 58, 1949, in the presence of a solvent or diluent the oily plasticizer, particularly if it is a mineral oil may be substituted for all or part of the diluent or solvent. The alfin rubbers have heretofore been considered undesirable because of their high molecular weight characteristics and the tremendous difficulty involved in breaking them down by milling procedures so that they could be formed into factory processable compounds. As described in the above cited article in Rubber Age, which is an abstract of an article entitled "Butadiene Polymers and Polyisobutylene" which appears in Industrial and Engineering Chemistry, January 1950, pages 95 to 102. As there set forth, one of the alfin catalysts is a complex of the sodium compounds of alcohol and an olefin. For example, sodium propoxide-allyl sodium. The catalysts are generally sodium alkyls complexed with an ether and/or alcohol as described in the above article. The polymerization takes place in mass and proceeds at a satisfactory rate at room temperature or mass. In accordance with the present invention alfin rubbers may be produced directly in readily useable state or they may be produced in the same way as previously and the oil or plasticizer added in a Banbury as above-described. Any of the various carbon blacks may be incorporated in accordance with the present invention either in the latex or during the mastication procedures. The amount of carbon black for a tread compound is, if the plasticizers plus the synthetic rubber are considered all as rubber, substantially identical to that used in the standard methods where the carbon black is based only on the rubber present if compounds of similar hardness are to be had. While any of the carbon blacks including the furnace blacks, channel black, and even thermatomic may be used to obtain compounds suitable for many purposes, the fine reinforcing furnace blacks, particularly those having some structure such as the aforementioned "Philblack O" produce tire treads having outstanding properties and are therefore preferred and the compounds prepared from these fine reinforcing carbon blacks or HAF (high abrasion furnace blacks) have properties which are superior to others. The amount of carbon black and or other pigment such as zinc oxide, titanium dioxide, "Hysil" (silicon dioxide pigment) and the like may vary very widely. Compounds or rubber mixtures without carbon black or with small amounts of carbon black and other pigments are suitable for many purposes including carcass compounds. Compounds with as much as 75 or 80 parts of carbon black based on 100 parts of the total of rubber plus oil are often suitable for higher abrasion compounds. In tire treads however, the amount of carbon black used in preferably about 30 or 35 percent to 60 or even 65 percent based on the total amount of oil or plasticizer plus rubber present in the compound. Part of the carbon black may be substituted however by other pigments on the basis of equivalent surface area. Lignin incorporated into the latex as an alkaline solution and copreciated therewith may be used in amounts commensurate with the pigment content of the carbon black. The present invention is as aforementioned especially suitable for the production of rubber compounds that exhibit high flexibility at low temperatures such as may be encountered in far northern climates. While any of the polymers may be used in making rubber compounds the hydrocarbon synthetic rubbers are generally preferred in tires and of the hydrocarbon rubber compounds those prepared substantially entirely from a diolefin such as butadiene are preferred particularly when the polymerization as aforementioned takes place to a temperature will below 50° C. and preferably not in excess of 60° F. superior results being obtained as the polymerization temperature is lowered. The synthetic rubbers consisting essentially of polymerized butadiene and/or polymerized isoprene are the preferred polymers for preparing general purpose compounds suitable for arctic purposes and may be used with any plasticizers compatible therewith. The lower the pour point of the plasticizer the lower is the temperature at which the rubber has flexibility. The effect of oil or plasticizer incorporated before breakdown in preventing the deterioration of the rubber is illustrated by the following: Three polymers having "computed Mooney" values in the raw state of 205, 120 and 55 were prepared. These compounds were prepared according to the standard cold rubber polymerization recipes from a mixture comprising 72 parts of butadiene and 28 parts of styrene. The 55 computed Mooney material was the standard cold rubber GR-S. The polymers were divided into four batches. A, B, C and D respectively, for four different compounding procedures. Batch A was treated in accordance with the standard compounding procedure used prior to the present invention. The raw polymer was masticated on a cold tight laboratory mill which differs from a factory mill in that the rolls can be set almost adjacent each other and therefore there is a much greater plasticizing action. Each of the tough high Mooney polymers were alternately placed on a cold mill for one-half hour then cooled for one-half hour, again milled for one-half hour, etc. until they were broken down sufficiently to produce a compounded Mooney suitable for factory processing. The mill rolls were set 0.001" apart. The 205 computed Mooney required 2100 complete passes through the mill and about twenty-four hours milling to obtain sufficient plasticity for a compound made with 50 parts of "Philblack O" for each 100 parts of rubber to have a four minute Mooney reading of 62. The 120 compounded Mooney also required 2200 complete passes through the mill in order that the compound have a Mooney reading of 65. The standard cold rubber was milled for about two hours to produce a compounded Mooney of 87 which while it was too high for factory processing, could be used for molding tensile strips, etc., in the laboratory. Into each of the thus broken down polymers was incorporated therein 50 parts of Philblack O, 1 part "B.L.E." (A high temperature reaction product of diphenol amine and acetone) 3 parts zinc oxide, 1 part stearic acid, 0.9 part of accelerator "Santocure" (N-cyclo hexyl-2-benzothiazole sulfenamide) and 1.25 parts of sulfur for each 100 parts of the respective polymers. The thus compounded rubbers were cured into standard test slabs and tested according to standard procedure. 15, 30, 45, 60 and 75 minute cures were made of each of the above compounds. A bath B of each of the polymers was made in the identical manner except that the amount of sulphur was increased to 1.75 parts and the amount of carbon black was increased to 75 parts. Batch C of each of the polymers was also made from the broken-down polymer in identical manner with batches A and B except that 85 parts of "Philblack O," 70 parts of "Sundex 53" (a dark aromatic and naphthenic hydrocarbon lubricating oil extract as previously described), 2.25 parts of sulfur, 0.9 part of stearic acid, 1 part each of B.L.E. and Santocure were used in preparing the compound. Batch D was compounded in accordance with the present invention. In this batch each of the polymers were separately placed in a Banbury mixer and mixed with oil and "Philblack O" in accordance with the procedures above set forth for evaluating polymers. The polymer having a computed Mooney of 205 was mixed with 85 parts of black and 70 parts of oil. The polymer having a Mooney of 120 was mixed with 75 parts of black and 40 parts of oil and the cold rubber 55 Mooney polymer was mixed with 50 parts of black and 5 parts of oil. Inasmuch as both the tensile strength as the elongation are important characteristics of a rubber compound it has been considered by many authorities that the proper characterization of a rubber compound is based on "tensile product" which is the product of the tensile strength times the elongation. Inasmuch as it is obviously only the polymer and the 50 parts of black which are necessary for its optimum reinforcement (as developed from many years use of synthetic rubber and tire treads) and to provide rubbery properties in the compound, the oil and carbon black are considered merely extenders. Therefore, in determining the true tensile product of the compound only the polymer content and 50 parts of the black are considered as providing the entire properties. This tensile product is indicated in Table 2 both for the compound as extended and on the basis of the amount of polymer reinforced with 50 parts of black. Thus, to illustrate when the black loading in 85 and the oil loading is 70 and the amount of additional compounding ingredients is 5, it is seen that there are 260 parts of material in the particular rubber compound. Only 155 parts are present in an optimumly reinforced polymer containing 50 parts of black. Therefore, if the tensile product (tensile times elongation) at optimum cure is 100 for the highly extended compound the tensile product based upon the rubber (polymer), plus 50 parts of black present is, in fact, 260 100 X --- 155 It will be seen from Table 2 that the tensile product of articles made from factory processable compounds with large amounts of oil without the excessive breakdown of the rubber, is greatly enhanced. These data show that when amounts of oil, in accordance with the present invention, are present during the mixing process, particularly when the polymer is in the finely divided state, the properties of the polymer are not deteriorated and the inherent characteristics of the high Mooney polymers are maintained. The following example illustrates the advantage had from the present invention in preparation of rubbers for cold climates and the differences obtainable by selecting plasticizers and amounts thereof. Rubber compounds were prepared with the plasticizers shown in the following Table 3. The following formula in which parts as always herein are by weight was used in valuating the polymer: Parts Rubber ___________________________________________ 100 Philblack O ______________________________________ 75 Stearic acid _____________________________________ 2 Zinc oxide _______________________________________ 5 Sulfur ___________________________________________ 2 Santocure ________________________________________ 1 Softener or oil __________________ Indicated in Table 3 The compounds were masticated or mixed in accordance with the aforementioned recommended procedure for evaluating polymers and cured into standard test slabs. The slabs having optimum cure were tested as to their low temperature properties in accordance with the procedure recommended by the article by S. D. Gehman, et al., Ind. Eng. Chem. 39, 1108-1115 (1947) for Gehman values. There is also shown in the following table a GR-S compound containing 5 parts of Paraflux softener which is generally recognized as a standard tread compound. The larger the Gehman value at the temperature indicated the better is the low temperature property of the compound. It will be seen that compounds may be prepared in accordance with the present invention with flexibility at temperatures of -75° F. By incorporating even larger amounts of oils such as Diamond Process Oil, Cardolite, high boiling esters and mineral oils mentioned, still better Gehman values are obtained in stocks having desirable properties. The present invention is therefore highly satisfactory for the production of articles used in arctic regions. Several polymers were made by polymerizing styrene and butadiene in the ratio of 72 parts of butadiene to 28 parts of styrene at 41° F. utilizing standard cold rubber recipes, the amount of modifier MTM mercaptan necessary to obtain computed Mooneys, 51, 63, 85, 95, 104, 124, 162, 205 and 245 at 72% conversion was used. These polymers were compounded in accordance with the procedure above described for the evaluation of polymers, the parts of oil and black indicated in the following table. Each of the compounds was cured for 15, 30, 45, 60 and 75 minutes respectively. The optimum cure was selected and the S value calculated in accordance with the following formula: + 100 = (_______) 100 T is the tensile strength measured and E is the elongation. The S value is described in an article by Dr. Samuel Maron et al., appearing in Industrial Engineering Chemistry, volume 40, page 2220 (1948), as being more satisfactory than even "tensile product" for evaluating polymers as it takes into account the reduction in cross section at break due to elongation. The S value at optimum cure and the S value calculated back to a standard compound of 100 parts of polymer, 50 parts of black and 5 parts of oil is shown in the following Table 4, together with the parts of modifier oil and black used in preparing tread compound. S value vs. parts of oil (Sundex 53) used for each polymer is shown in Figure 3. An arrow placed on each of the curves indicates the point where 60 Mooney is obtained in the compound. It will be seen that the polymers of about 85 or 90 Mooney and above have inherently much superior properties when mixed with more than 25 parts of oil and these properties are maintained when enough oil is present during the mastication. 1000 lbs. of a polymer was made by polymerizing 72% butadiene and 28% styrene to 72% conversion at 41° F. using a potassium soap approved by the Rubber Reserve Corporation designated by the trade name a potassium stearate meeting specifications of the office of the Rubber Reserve Corporation as K-ORR as the emulsifying agent in the amount of 5%. The polymer thus produced had a computed Mooney of 195. The latex of the polymer thus prepared was mixed with an emulsion of oil "Sunded 53" and a dispersion of carbon black. The "Sundex 53" emulsion was made by using 100 parts of "Sundex 53," 2 parts of oleic acid and 2 parts of ammonium hydroxide. The "Philblack O" slurry was made with 100 parts Philblack O and 4 parts Indulin A (lignin), 0.6 part sodium hydroxide and water to give a 15-16% total solids content in the slurry. The latex and slurry and emulsion were mixed together in an amount sufficient to provide 55 parts of "Sundex 53" and 75 parts of "Philblack O" per each 100 parts of latex. The mixture was coagulated with salt and acid to obtain a crumb which was dried and sheeted out in slabs on an 84" mill. The further compounding and mixing were carried out in a #11 Banbury. It was compounded in accordance with the following formula: Parts (Masterbatch) ______________________________ 230.5 Sundex 53 __________________________________ 5.0 Philblack O ________________________________ 10.0 ZnO ________________________________________ 5.0 Stearic ____________________________________ 1.0 Santocure __________________________________ 1.25 B.L.E. _____________________________________ 1.0 Sulfur _____________________________________ 2.0 The stock thus prepared when attempts were made to process in the factory was somewhat too stiff for best results and had a compounded four minute Mooney of 70. The material was extruded in the form of tire treads and applied to identical 7.60 x 15 tire carcasses which were tested against two standard synthetic rubber controls. The results of the tire test are as follows: The tires were 7.60 x 15. The miles per 0.001" of tread wear are indicated in the above table, as well as the comparative tread rating of the tires for the high Mooney polymer relative to the control. A polymer of butadiene and styrene containing 72 parts of butadiene and 28 parts of styrene was polymerized at 41° F. in the presence of 0.12 part of MTM (a trade name for a mixture of tertiary mercaptans consisting of tertiary mercaptans of 12, 14, and 16 carbon atoms, having about 60% of the 12 carbon atoms and 20% each of 14 and 16 carbon atom mercaptans). The conversion was 72% and the "computed Mooney" of the resultant polymer was 120. A second polymer of identical butadiene and styrene content was polymerized under the same conditions except that the mercaptan content was reduced to .05 part of the MTM mercaptan. The "computed Mooney" of the resultant polymer was 175. The latices from each of these polymers were separately coagulated and dried to give a fine crumb of dry polymer. The separate crumbs obtained were compounded in the tire tread compositions in accordance with the following table: A standard cold rubber compound was used as a control. The formula for such standard compound is also shown in Table 5. In preparing the compounds the polymer in crumb form was added to the Banbury and allowed two minutes time to break the crumb into a finely divided form. The oil was thereupon added and about three minutes later the carbon black was added. When the batch temperature rose to 350° F. the batch was dropped. The accelerator, antioxidant and other materials were mixed into the rubber the following day by means of another pass through the Banbury. The compounds thus produced were extruded through the orifice of a tubular machine into tire treads of similar shape and size to prepare 7.60 x 15 tires. The physical characteristics of the compound were obtained by curing samples of each thereof for the times indicated in the following table: The rubber stock prepared from the cold rubber masterbatch had a Mooney plasticity of 62 after extrusion, the Mooney plasticity of the stock produced from the 120 polymer was 74 after extrusion, and the Mooney plasticity of the compound prepared from the 175 Mooney polymer was 63 after extrusion, all plasticities being measured with the large rotor at four minutes. Tires having treads applied on identical standard carcasses were made with each of the aforementioned treads. The tires were tested on a test fleet in the ordinary manner in the summer in California. The tread wear data is shown in the following table: In order to show the advantage of high Mooney rubber oil mixtures when mixed with lower Mooney polymers such as standard GR-S (Government reserve synthetic rubber) tires were prepared utilizing only 20% based on rubber of the high Mooney polymers in the compounds from which the treads were formed. The specific compounds are shown in the following table: In making the mixtures the amounts of GR-S black masterbatch of polymer A and polymer B indicated in the above table were placed in a Banbury mixer and blended together for two minutes, whereupon the oil indicated in the table and black indicated in the table was added. The mixing was continued for four minutes and the remaining ingredients added. The sulfur and accelerator were added on a second pass through the Banbury. The total mixing time was nine minutes. The amount of oil used was that required for the high Mooney polymer plus the oil required to obtain a 60 to 70 compound Mooney. Compounds thus obtained were extruded into tire treads and applied to standard tire carcasses, each having a plurality of plies extending from bead to bead and intermediate layers of rubber. The tread wear rating of the various tires after 12,600 miles on a test car relative to a standard 100% GR-S control is shown in the following table: Relative treadwear rating 20% polymer A (195 computed Mooney) _______ 104 20% polymer B (120 computed Mooney) _______ 112 GR-S control (50 Philblack-O) _____________ 100 The preceding example shows that some advantage may be obtained with even relatively small amounts of polymer in admixture in an ordinary easy processing rubber. It should be emphasized the main advantage and economies of the present invention are minimized by the small proportion of the high Mooney rubber mixture used. While we have emphasized in the preceding examples the formation of tire treads the high Mooney rubber mixtures are also applicable to the production of tire carcass stocks which have an advantage not only in economy but in that they are more efficient and develop less heat upon flexing at elevated temperatures than the stocks made from the usual synthetic rubbers. An example of a suitable carcass compound is as follows: Polymer 120 ML-4 ________________________________ 100 Sundex 53 _______________________________________ 30 Philblack A _____________________________________ 50 "Koresin" (reaction product of P tertiary butyl phenol and acetylene) _________________________ 10 B.L.E. __________________________________________ 1 Zinc oxide ______________________________________ 3 Sulfur __________________________________________ 2 Altax ___________________________________________ 1.2 Monex ___________________________________________ 0.3 The above compound is mixed the same way as is the tread compound in the preceding examples. The carbon black used is a high modulus furnance black. No difficulty is had as in GR-S with incorporating the required amount of Koresin to obtain tackiness. The compounded Mooney of the stock is less than 60 and is suitable for application to suitable rayon cord fabric. Tire carcasses constructed in the ordinary manner except that the above compound may be used with treads of various compositions. The high Mooney oil mixtures of the present invention may also be combined with natural rubber to produce compounds also suitable for the preparation of tire carcasses. The following example in which parts are also by weight illustrates such compound: Polymer 120 ML-4 _____________________________ 66.6 Natural rubber _______________________________ 33.3 Sundex 53 ____________________________________ 20 Philblack A __________________________________ 50 B.L.E. _______________________________________ 1 Zinc Oxide ___________________________________ 5 Sulfur _______________________________________ 2.25 Altax (accelerator) __________________________ 1.0 Monex (accelerator) __________________________ 0.2 Stearic Acid _________________________________ 2 (Altax is benzothiozole disulfide; Monex is tetramethylthiuram monosulfide.) In mixing the above the oil is mixed with the 120 Mooney polymer and after it is absorbed, this polymer is mixed with the natural rubber and the B.L.E. The black is then added and the mixing continued until the materials go together. The additional ingredients are added in a separate mix. The compound in the preceding example is used in the construction of tire carcasses. A flame resistant rubber is prepared by polymerizing a mixture of 70 parts of butadiene and 30 parts of methylisopropenyl ketone in emulsion the substantial absence of modifier to produce a polymer having a computed Mooney of 200. The polymer is compounded according to the following formula: Parts 200 Mooney BD/MIK (70/30) ___________________________ 100 Tricresyl phosphate _________________________________ 70-80 Hysil (a finely divided silica having a particle size of about 30 milomicrons) __________________________ 90 Sulfur ______________________________________________ 3 Altax _______________________________________________ 1.5 Tuads (tetramethylthiuram disulfide) ________________ 0.3 ZnO _________________________________________________ 5.0 Stearic _____________________________________________ 2.0 In the examples herein the plasticizer particularly mentioned may be substituted in whole or in part by other plasticizer mentioned. It is again emphasized that the plasticizers are not equivalent for all purposes. The hydrocarbon and general purpose high Mooney synthetic rubbers are most compatible with the hydrocarbon oils, mineral rubber, and plasticizer mixtures comprising hydrocarbon plasticizers particularly when they have an aromatic content. The present invention affects great economies in the amount of synthetic rubbers utilized. It is largely possible because of the difference in character between synthetic rubbers and natural rubber, the different breakdown characteristics and the toughness of character inherent in the polymer. It is also apparent that modifications of the invention may be made without changing the spirit thereof, and it is intended that the invention be limited only by the appended claims. What we claim is: 1. A pneumatic tire having a tread portion comprising a vulcanized synthetic rubber compound containing a non-oil-resistant rubbery polymerization product of a conjugated diolefinic compound having not in excess of 8 carbon atoms, said polymerization product being compatible with hydrocarbon mineral oils and of a toughness such that a composition composed of 100 parts by weight of said polymerization product, 30 parts of a hydrocarbon oil and 65 parts of a high abrasion furnace carbon black will have a Mooney plasticity of at least 60, said rubber compound containing 20 to 100 parts of a compatible plasticizer based on the weight of said polymerization product in said compound. 2. The pneumatic tire set forth in claim 1 in which the compatible plasticizer is an oil and in which the said tread portion contains 30 to 100 parts of said oil based on the weight of said polymerization product in said compound. 3. The pneumatic tire set forth in claim 2 in which said tread portion contains 30% to 80%, by weight, of a reinforcing carbon black pigment based on the total weight of said polymerization product and oil. 4. The pneumatic tire set forth in claim 3 in which the said polymerization product of said toughness constitutes the major portion of all solid polymers of diolefinic compounds that may be present in said vulcanized rubber compound. 5. The tire set forth in claim 1 in which the polymerization product is a hydrocarbon polymerization product of a conjugated diolefin, in which the plasticizer is substantially hydrocarbon oil having a boiling point above 450° F. and is present in amounts of 35 to 100 percent based on the weight of said polymerization product and in which the tread portion contains 35 to 65 percent of carbon black based on the total weight of said polymerization product and plasticizer. 6. The tire set forth in claim 1 in which the said polymerization product is a copolymer of butadiene and a copolymerizable aryl olefinic compound and in which said copolymer constitutes the major proportion of all of the solid polymers of diolefinic compounds that may be present in said vulcanized rubber compound. 7. The tire set forth in claim 1 in which the rubber compound comprises a hydrocarbon copolymer of a conjugated diolefin with a copolymerizable mono-olefinc compound, said polymer being one polymerized at less than 0° F. to provide a relatively long chain molecular structure and in which said plasticizer is an oily hydro-carbon. 8. The tire set forth in claim 1 in which said polymerization product is a copolymer of butadiene and styrene, in which the Mooney plasticity of said polymerization product in the raw state is at least 120 and in which the amount of oily plasticizer is more than 35 parts by weight per 100 parts by weight of said polymerization product. 9. The tire set forth in claim 1 in which the plasticizer is largely a hydrocarbon oil, in which the total amount of plasticizer present is at least 45 parts per 100 parts by weight of the polymerization product in the compound, and in which said polymerization product is of a toughness such that a composition composed of 100 parts by weight of said polymerization product, 60 parts of a hydrocarbon oil and 80 parts of a high abrasion carbon black will have a Mooney plasticity of at least 60. 10. The pneumatic tire set forth in claim 1 in which the major portion of the synthetic rubber in said rubber compound has a Mooney plasticity of at least 135 and in which the plasticizer is a petroleum oil having a boiling point of at least 450° F. and is present in amounts of at least 35 percent by weight of the amount of said synthetic rubber having a Mooney plasticity of at least 135. 11. The pneumatic tire set forth in claim 1 wherein a substantial proportion of the polymerization product of said diolefinic compound is a copolymer polymerized in aqueous emulsion at a temperature below 60° F. and is characterized by being substantially gel free, and the amount of oily plasticizer present in the compound is at least 35 percent based on the weight of the relatively tough diolefinic compound present. 12. A pneumatic tire having a tread portion that comprises a molded and vulcanized rubber compound containing a non-oil-resistant rubbery synthetic polymerization product of a conjugated diolefinic compound having not in excess of 8 carbon atoms, said polymerization product being compatible with hydrocarbon mineral oils and having a Mooney plasticity of at least 115, a hydrocarbon oil in the amount of at least 40 percent of the weight of said polymerization product, said oil having a boiling point of at least 450° F., and carbon black in an amount of from 30 to 80 percent of the weight of the polymerization product and oil, the major portion of the carbon black being a high abrasion furnace black. 13. A curable rubber tread stock the principal ingredients of which are an aliphatic hydrocarbon compatible synthetic hydrocarbon polymer of a conjugated diolefinic compound of less than 8 carbon atoms, 20 to 100 parts of a compatible plasticizer to 100 parts by weight of said polymer and a high abrasion furnance black in an amount of at least 35% by weight of the combined polymer and plasticizer, said polymer having a Mooney viscosity of at least 100 prior to compounding with said plasticizer and the proportion of plasticizer and carbon black in the composition being that required to produce a tread stock having a Mooney viscosity of from 30 to 70. 14. A curable rubber tire tread stock comprising essentially a hydrocarbon-oil-compatible, rubbery, synthetic hydrocarbon polymerization product of a conjugated diolefinic compound having not in excess of 8 carbon atoms, which compound has a raw Mooney plasticity of at least 90 (ML-4), a reinforcing carbon black pigment, and at least 30 parts by weight of a compatible plasticizer per 100 parts of said polymerization product, said rubber tread stock containing from 30 to 80 parts by weight of said reinforcing pigment per 100 parts by weight of the combined amount of said polymerization product and said plasticizer present, and said tread stock having a Mooney plasticity (ML-4) not appreciably in excess of 80 and not substantially less than 40. 15. A curable rubber tire tread stock comprising essentially a hydrocarbon-oil-compatible, rubbery, synthetic hydrocarbon polymerization product of a conjugated diolefinic compound having not in excess of 8 carbon atoms, which has a raw Mooney plasticity of at least 90 (ML-4), a reinforcing carbon black pigment, and a compatible oily plasticizer, there being from 30 to 100 parts by weight of said oily plasticizer to 100 parts by weight of said polymer and from 30% to 80%, by weight of said carbon black, based on the combined weight of said polymer and said plasticizer present, and said tread stock having a Mooney plasticity (ML-4) not appreciably in excess of 80 and not substantially less than 40. 16. The curable rubber tire tread stock of claim 15 in which the polymerization product is a copolymer of a major amount of said conjugated diolefin compound and a minor amount of at least one copolymerizable monoolefinic compound. 17. The curable rubber tire tread stock of claim 16 in which said copolymer constitutes the major portion of all of the solid polymers of diolefinic compounds which may be present in said tread stock. 18. A curable rubber tire tread stock comprising essentially a hydrocarbon-oil-compatible rubbery synthetic hydrocarbon polymerization product of a conjugated diolefin having not in excess of 8 carbon atoms, a fine, reinforcing, high abrasion carbon black and at least 30 parts by weight of a compatible mineral oil per 100 parts of said polymerization product, said rubber tread stock containing from 30 to 80 parts by weight of said carbon black per 100 parts of the combined amount of said polymerization product and said mineral oil present, said polymerization product being in a substantially non-broken down state and having a raw Mooney plasticity of at least 90 (ML-4), and said tread stock having a Mooney plasticity (ML-4) not appreciably in excess of 80 and not substantially less than 40. 19. A curable rubber tire tread stock comprising essentially a hydrocarbon-oil-compatible rubbery synthetic hydrocarbon polymerization product of a conjugated diolefin having not in excess of 8 carbon atoms, a fine, reinforcing, high abrasion carbon black and at least 30 parts by weight of a compatible softening oil per 100 parts by weight of said polymerization product, said rubber tread stock containing from 30 to 80 parts by weight of said carbon black per 100 parts by weight of the combined amount of said polymerization product and said softening oil present, said polymerization product being in a substantially unmasticated state and having a raw Mooney plasticity of at least 90 (ML-4), and said tread stock having a Mooney plasticity (ML-4) not appreciably in excess of 80 and not substantially less than 40. 20. A curable rubber tire tread stock comprising essentially a hydrocarbon-oil-compatible rubbery synthetic hydrocarbon copolymer of a major amount of conjugated diolefinic compound having not in excess of 8 carbon atoms and a minor amount of at least one copolymerizable monoolefinic compound, a fine, reinforcing, high abrasion carbon black and at least 30 parts by weight of a compatible softening oil per 100 parts by weight of said copolymer, said rubber tread stock containing from 30 to 80 parts by weight of said carbon black per 100 parts by weight of the combined amount of said copolymer and said softening oil present, said copolymer being in a substantially non-broken down state and having a raw Mooney plasticity of at least 115 (ML-4), and said tread stock having a Mooney plasticity (ML-4) not appreciably in excess of 80 and not substantially less than 40. 21. The curable rubber tire tread stock of claim 20 in which said polymerization product having a raw Mooney plasticity of at least 115 (ML-4) constitutes the major portion of all of the solid polymers of diolefinic compounds which may be present in said tread stock. 22. A curable rubber tire tread stock comprising essentially a polymerization product which comprises a copolymer of a major amount of butadiene and a minor amount of styrene, a fine, reinforcing, high abrasion carbon black and at least 30 parts by weight of a compatible softening oil per 100 parts of said polymerization product, said rubber tread stock containing from 30 to 80 parts by weight of said carbon black per 100 parts by weight of the combined amount of said polymerization product and said softening oil present, said polymerization product being in a substantially non-broken down state and having a raw Mooney plasticity of at least 115 (ML-4), and said tread stock having a Mooney plasticity (ML-4) not appreciably in excess of 80 and not substantially less than 40. 2,009,599 Woock ________________ July 30, 1935 2,217,918 Rostler et al. _______ Oct. 15, 1940 2,419,512 Vesce ________________ Apr. 22, 1947 2,449,928 Corkery _____________ Sept. 21, 1948 2,466,027 Horney et al. _________ Apr. 5, 1949 2,476,884 Maynard ______________ July 19, 1949 2,497,226 McNeill ______________ Feb. 14, 1950 2,575,249 Connell et al. _______ Nov. 13, 1951 2,576,968 Pike et al. ___________ Dec. 4, 1951 2,615,009 St. John et al. ______ Oct. 21, 1952 2,649,425 Hulse ________________ Aug. 18, 1953 123,533 Australia _______________ Feb. 20, 1947 "Softener Study 2A," Hycar Rubber Co., Akron, Ohio, pages 6-11, September 1942. Juve: "India Rubber World, volume 110, No. 1, April 1944, pages 51 to 54. Rongone et al.: "The Rubber Age," volume 55, No. 6, pages 577 to 582, September 1944. O'Connor et al.: "Rubber Age," volume 54, No. 5, February 1944, pages 423-427. Grote et al.: "Rubber Age," September 6, 1945, volume 57, No. 6, pages 685-690. Rostler: "Rubber Age," volume 69, No. 5, August 1951, pages 563 and 564. Gee: "India Rubber Journal," Dec. 6, 1952, pages 960 and 961. Shearon et al.: "Ind. Eng. Chem.," volume 40, No. 5, pages 769-777, May 1948. Howland et al.: "Rubber Age," volume 64, No. 4, pages 459 to 481, January 1949. Smith et al.: "Ind. Eng. Chem.," volume 41, No. 8, pages 1584 to 1587, August 1949. Whitby et al.: "Synthetic Rubber," Wiley, 1954, pages 213-219, 399-403. Morton: "Ind. Eng. Chem.," volume 42, pages 1488-1496, August 1950. D'lanni: "Ind. Eng. Chem.," volume 42, pages 95-102, January 1950. Duismore: "Rubber Chemistry and Technology," January-March 1953, pages 25-56. It is hereby certified that error appears in the printed specification of the above numbered patent requiring correction and that the said Letters Patent should read as corrected below. Column 1, line 18, for "types" read — tires — ; column 3, line 44, for "Figurue" read — Figure — ; columns 9 and 10, TABLE 1, first column thereof, line 17, for "Circosol 2X" read — Circosol 2XH — ; column 13, lines 36 and 37, for "copreciated' read — coprecipitated — ; column 14, line 14, for "compounded" read — computed — ; line 53, for "as", second occurrence, read — and — ; columns 15 and 16, Table 3, in the headings of columns 2 through 7 thereof, for "75° F., 65° F., 45° F., 45° F., 35° F., and 25° F." read — -75° F. -65° F. -55° F. -45° F. -35° F. -25° F. — ; column 17, line 59, after "name" insert — K-ORR — ; line 61, strike out "the", first occurrence; same line 61, strike out "as K-ORR"; column 18, line 10, for "Stearic" read — Stearic Acid — ; line 68, Table 5, first column thereof, for "Stearic" read — Stearic Acid — ; column 21, line 49, for "Stearic" read — Stearic Acid — ; line 60, for "affects" read — effects — ; column 26, line 13, list of references cited, under "OTHER REFERENCES", for "Duismore" read — Dinsmore — . Signed and sealed this 18th day of April 1961. THIS CONTRACT made and entered into as of the first day of January, 1949, by and between RECONSTRUCTION FINANCE CORPORATION (hereinafter called "RFC"), a corporation created by the Reconstruction Finance Corporation Act, and having an office for the transaction of business in Washington, D.C., and THE GENERAL TIRE RUBBER COMPANY (hereinafter called "Contractor"), an Ohio corporation qualified to do business in Texas and having an office and place of business at Akron, Ohio; WHEREAS, Section 6(a) of the Rubber Act 1948 (P. L. 467 — 80th Congress) provides that the Government of the United States is authorized to undertake research in rubber and allied fields by such instrumentalities of the United States as the President may designate; and WHEREAS, by Executive Order 9942, dated April 1, 1948, the President directed RFC to exercise and perform research functions authorized by Section 6(a) of said Act; and WHEREAS, RFC and Contractor have heretofore entered into an Agreement (hereinafter called the "Operating Agreement"), dated February 2, 1943, as amended, covering the production by Contractor of Synthetic Rubber (as defined therein) for delivery to RFC; and WHEREAS, the Operating Agreement provides for the reimbursement by RFC to Contractor of the cost of conducting research, experimental, laboratory, developmental, and pilot plant work to the extent approved in advance by RFC in accordance with arrangements to be mutually satisfactory to RFC and Contractor (all such work being hereinafter referred to as "Research Work"); and WHEREAS, it is deemed desirable that an arrangement be made between RFC and Contractor relative to patent and other rights which may result from the conduct of the Research Work authorized hereunder; NOW, THEREFORE, for and in consideration of the premises and the mutual covenants and obligations as herein set forth the parties hereto agree as follows: 1. RFC hereby authorizes Contractor to undertake the following Research Work and to obtain reimbursement therefor pursuant to subparagraphs (h) and (i) of Section 3 of said Operating Agreement, as amended, as follows: (a) During the period extending from January 1, 1949 to June 30, 1949, inclusive, the Research Work set forth in Exhibit "A" attached hereto and made a part hereof, and to incur expenses in connection therewith not in excess of Seventy-eight Thousand Five Hundred Dollars ($78,500), distributed as set forth in the budget outlined in said Exhibit "A". (b) During the period extending from July 1, 1949 to June 30, 1950, inclusive, the Research Work set forth in Exhibit "B" attached hereto and made a part hereof, and to incur expenses in connection therewith not in excess of One Hundred Sixty-five Thousand Dollars ($165,000), distributed as set forth in the budget outlined in said Exhibit "B". 2. Contractor hereby agrees to conduct such Research Work during said periods, within said budget amounts, for the benefit of RFC as specified herein. Contractor shall not expend more during any of the aforementioned periods for any individual item contained in the budgets herein authorized than the amounts indicated in the exhibit applicable to the particular period, without obtaining the prior written approval of RFC. 3. The applied and developmental Research Work to be conducted hereunder shall be directed to the determination of generally accepted principles for, and to the adaptation of such principles to techniques for, the production of rubber-like polymers of butadiene, and of rubber-like copolymers, mixed polymers and interpolymers of butadiene with styrene; the content of butadiene being within the range of 50% to 100% by weight of the rubber hydrocarbon present. The scope as above indicated excludes any work under or related to Contractor's "wet smear" invention, covered by Patent No. 2,441,090, but includes carbon black masterbatches and may be further extended by mutual agreement in specific instances. 4. Contractor shall prepare and submit to RFC monthly progress reports and final reports covering in detail all work done hereunder. Said monthly reports shall be submitted not later than the fifteenth day of each following month, and in addition said final reports shall be prepared and submitted promptly upon completion of each distinct subdivision of the work. In addition to said reports, Contractor shall send a representative, well informed in the research provided for, to such meetings as RFC may call. 5. Contractor shall also promptly report and make fully available to RFC or its nominees all information within the scope, as defined in paragraph 3 above, of the research conducted for RFC hereunder (whether patented, patentable, or unpatentable, and irrespective of whether resulting from work reimbursed by RFC) developed or acquired from any source during the term of this contract by Contractor or its Subsidiaries and Affiliates (Companies in which Contractor now has or may in the future acquire, directly or indirectly, fifty per cent (50%) or more of the stock having the right to vote for directors). 6. In addition to the information submitted under paragraphs 4 and 5 above, Contractor shall disclose and make available to RFC or its nominees, to the extent and whenever requested, all information in the possession of Contractor or its Subsidiaries and Affiliates during the term of this contract, which is outside the scope of the research conducted for RFC hereunder, but which is necessary in connection with the utilization of the information so submitted in the production or use of rubber-like polymers, copolymers, mixed polymers and interpolymers of the composition defined in paragraph 3 above; whether or not any of such information results from work, the cost of which is reimbursed by RFC, or whether it is patented, patentable or unpatentable; but such additional information specifically shall exclude that pertaining to subsequent compounding of synthetic rubber, its latices and masterbatches, or pertaining to the preparation of butadiene, styrene, isoprene, vinyl monomers, and of other raw materials, or pertaining to the preparation of accelerators, antioxidants, catalysts, extenders, plasticizers, carbon or lamp black, and of any other agents for use in the aforesaid production or use. 7. Contractor hereby grants to RFC and its nominees (1) a royalty-free license to utilize without limitation any information or invention (whether or not patented) resulting from the research authorized by this contract, including the right to reproduce, disclose to others, and publish all such information or inventions, and including the right to make, use and sell thereunder, and (2) a royalty-free license to use any information or invention to which RFC or its nominees are entitled under the provisions of paragraph 5 above, including the right to reproduce, disclose to others, and publish all such information or inventions, but limited to the utilization of the same in the production, use or sale of general purpose synthetic rubber suitable for use in the manufacture of transportation items such as tires or camel-back, and (3) a royalty-free license with respect to any information or invention made available under the provisions of paragraph 6 above, limited to the utilization of the same in the manufacture, use or sale of rubberlike polymers, copolymers, mixed polymers and interpolymers of the compositions defined in paragraph 3 above. 8. Contractor shall take such steps as may be necessary to obtain from its employees and from its Subsidiaries and Affiliates the information and rights to which RFC and its nominees are entitled hereunder. 9. Contractor shall promptly notify RFC of the existence of any patent based upon information to which RFC and its nominees are entitled hereunder. 10. RFC may terminate the research authorization contained herein, or any part hereof, without in any way affecting the other provisions of the Operating Agreement or the continuing provisions of this contract in favor of RFC or its nominees, by giving Contractor thirty (30)days' advance written notice. In the event said authorization is so terminated, RFC agrees to indemnify Contractor against loss upon any outstanding commitments which Contractor may have made in order to conduct the Research Work herein authorized to be conducted, and which Contractor is unable to cancel; provided, however, that in no event shall the maximum amount reimbursable thereby exceed the total amount of the authorization hereunder given to Contractor, less all amounts which RFC may have theretofore reimbursed to Contractor pursuant to this authorization; and provided, further, that Contractor shall have exercised all reasonable diligence to obtain cancellation of any outstanding commitments. IN WITNESS WHEREOF, Reconstruction Finance Corporation and The General Tire Rubber Company have caused this contract to be executed by their respective officers or representatives, duly authorized thereto, and their respective corporate seals to be hereunto affixed, duly attested by their respective secretaries or assistant secretaries, to be effective as of January 1, 1949. ATTEST: RECONSTRUCTION FINANCE CORPORATION By Executive Director Officer of Rubber Reserve ATTEST: THE GENERAL TIRE RUBBER COMPANY By President