328 F.Supp.2d 1188 (2004)
SIMMONS, INC., Plaintiff,
v.
BOMBARDIER INC. and Bombardier Motor Corporation of America, and Bombardier Recreation Products, Inc., Defendants.
No. 1:01-CV-00048 PGC.
United States District Court, D. Utah, Northern Division.
July 27, 2004.
*1189 *1190 David G. Mangum, David M. Bennion, Margaret N. McGann, Parsons, Behle & Latimer, Salt Lake City, UT, Cynthia M. Klaus, Larkin, Hoffman, Daly & Lindgren, Ltd., Bloomington, MN, Alan M. Anderson, Sharna A. Wahlgren, Christopher K. Larus, Stuart K. Ford, Laura J. Borst, Fulbright & Jaworski, LLP, Minneapolis, MN, for Plaintiff.
James S. Jardine, Rick L. Rose, Rick B. Hoggard, Samuel C. Straight, David E. Finkelson, Ray, Quinney & Nebeker, Salt Lake City, UT, Scott J. Pivnick, Robert J. Walters, Pillsbury Winthrop, LLP, Washington, DC, Kevin T. Kramer, William P. Atkins, James R. Menker, Pillsbury Winthrop, LLP, McLean, VA, for Defendants.

ORDER AND MEMORANDUM OPINION ON MOTIONS FOR SUMMARY JUDGMENT
CASSELL, District Judge.
Plaintiff Simmons Inc. has alleged that the Defendants (referred to collectively as Bombardier) have infringed claims 1, 2, 6, 9, 10, and 11 of U.S. Patent No. 5,386,594 (the "594 patent" or "patent 594"). The prosecution history of the 594 patent is long and complicated and will be set forth as relevant below. Litigation over the 594 patent also has a history, including prior litigation in the District of Minnesota.[1] This matter achieved a temporary resolution in this District before Judge Kimball when a summary judgment of non-infringement was granted to Bombardier based on Judge Kimball's thorough review of claim construction issues.[2] However, the Federal Circuit reversed the grant of summary judgment and, *1191 rather than resolving the disputed issues themselves, remanded.[3] This court now has the responsibility of attempting to resolve the remaining issues. The parties were before the court for oral argument on July 20, 2004 on several motions, including: (1) Plaintiff's Motion for Summary Judgment on Claim Construction; (2) Defendant's Motion for Summary Judgment of Non-Priority Under 35 U.S.C. § 120; (3) Plaintiff's Motion for Summary Judgment on No Inequitable Conduct; (4) Defendants' Motion for Summary Judgment of Non-Infringement and/or Invalidity of Simmons' Patent; (5) Plaintiff's Motion for Summary Judgment of No Anticipation; (6) Plaintiff's Motion for Summary Judgment of No Obviousness; and (7) Defendants' Motion for Summary Judgment of Non-Willfulness. The court found oral arguments instructive. The court took the matter under advisement and now issues its ruling.

BRIEF BACKGROUND
This action involves a dispute among competing manufacturers of snowmobile skis. Verlin Simmons started Simmons, Inc., in 1988. Simmons is a Utah company which manufactures and sells a variety of snowmobile related parts and accessories, including a commercial embodiment of United States Patent No 5,836,594 under the federally registered mark Flexi-Ski.
On April 10, 2001, Simmons filed a complaint alleging that Bombardier's Precision Ski infringed the 594 patent. Bombardier manufactures and sells snowmobiles and related products, including snowmobile skis under the Ski-Doo mark.
The claimed invention relates to skis used on snowmobiles and similar vehicles to support such vehicles, to facilitate their movement across snow and ice, and to provide directional guidance for them. Simmons alleges that Bombardier's Precision Ski infringes claims 1, 2, 6, 9, 10, and 11 of the 594 patent. Claims 1 and 10 are independent claims. Claims 2 and 9 are claims that depend from claim 1. This means that an infringing device must have all of the elements or limitations of independent claim 1 as well as those of the dependent claims. Specifically, claim 2 depends from claim 1 and adds the limitation that the bottom and side portions form a channel. Claim 6 of the 594 patent depends from claim 2 and specifies the additional limitation that the front portion of the "bottom" of the snowmobile ski based specified in claim 1 "compris[e] a concavity." Claim 9 depends from claim 1 and adds the limitation that the side portions taper down at the front and up at the rear of the ski. Claim 10 is an independent claim which is a combination of the limitations of claims 1 and 9. Claim 11 depends from claim 10 and is a combination of claims 10 and 2.

Plaintiff's Motion for Summary Judgment on Claim Construction (# 207-1)
The first step a court must take in a patent infringement case is to construe the claims of the patent to determine their scope.[4] Claim construction is an issue of law for the district court to decide.[5]
*1192 The court generally must "presume that the terms in the claim mean what they say" and "give full effect to the ordinary and accustomed meaning of the claim terms."[6] However, the "intrinsic evidence" must still be examined "to determine whether the patentee has set forth an explicit definition of a term contrary to its ordinary meaning, has disclaimed subject matter, or has otherwise limited the scope of the claims."[7]
The court will discuss below only the language that is disputed. The court otherwise finds that the proposed constructions put forth by Simmons are correct. Thus, where Bombardier does not dispute the construction put forth by Simmons, the court adopts Simmons' construction.

Claim 1
Claim 1 of the 594 patent reads in full:
A snowmobile ski, comprising:
a base extending in a longitudinal direction and having a bottom for moving over snow, the base also extending in a lateral direction between a first and second edge thereof and having a top adapted to be connected to a snowmobile;
a first side portion extending in the longitudinal direction and extending downward from the first edge; a second side portion extending in the longitudinal direction and extending downward from the second edge; a first guide rod disposed on a bottom of the first side portion; and a second guide rod disposed on a bottom of the second portion.
 "base"
The court adopts Simmons' construction of the term base:
The claim term "base" means the structure which supports all of the other claimed structures of the snowmobile ski, and upon which all of the other claimed structures of the snowmobile ski stand or are mounted.
According to Random House Webster's Unabridged Dictionary, "base" means "the bottom support of anything: that on which a thing stands or rests: a metal base for the table."[8] The alternate construction proposed by Bombardier does not change the plain meaning as set forth by Simmons. The primary dispute  whether or not the side portions are a part of the base or whether they are separate structures supported by the base  is resolved by other language in claim 1 and does not need to be resolved at this point.
 "bottom for moving over snow"
The Federal Circuit determined this to mean "the underside for moving over snow" which is not limited to being flat.[9]
 "base also extending in a lateral direction between a first and second edge thereof"
The court adopts Simmons' construction of the above terms with the exception of the additional word "approximately" and the substitution of the word "base" for "ski". The changes are noted in italics:

*1193 The claim term "base also extending in a lateral direction between a first edge and a second edge thereof" means the structure which supports all of the other claimed structures of the snowmobile ski (base) extends the width of the snowmobile ski in a direction approximately perpendicular to the longitudinal direction between first and second edges of the base. The term "edge" means the end or outermost lateral boundary of the snowmobile ski base.
The court agrees with Bombardier that "lateral" is not limited to being perfectly perpendicular to a longitudinal center line. For example, while longitudinal and lateral lines on a globe are perpendicular at the equator, they do not remain perfectly perpendicular around the surface of the globe. Thus, the limitation of "perpendicular" is not required by the claim language. However, it is clear that the claim terms "longitudinal" and "lateral" in the claim are referring to opposing directions so that the term "approximately perpendicular" gives the language its plain and ordinary meaning.
The primary dispute in this case is over the single word "edge." "Edge" can mean, as put forth by Simmons, "a line or border at which a surface terminates."[10] Thus, Simmons argues that "edge" must be the outermost lateral boundary of the snowmobile ski base. The court accepts this definition because of the context of the claim.
Bombardier would have this court define "edge" so as to make the side portions a component separate and apart from the base. It is true, as Bombardier argues, that the claim language clearly contemplates the base extending in a lateral direction between the two edges of the base and not necessarily the edges of the entire ski. Nevertheless, subsequent language in the claim makes clear that the base does in fact extend the entire width of the ski. The plain and ordinary meaning of the term base is something which "supports" a structure. Webster's defines "base" as "the bottom part of anything: the support or foundation...."[11] When referring to the base of a particular structure (as is the case here) the plain and ordinary meaning of base is clearly something which generally bears the weight of that structure  in this case, the weight of the ski. Thus, any ski which fits within the language of claim 1 is going to have "side portions" which are part of the "base" for the simple fact that it is the side portions which will bear the weight of the ski. This is clear from the fact that the guide rods are "disposed on a bottom" of the side portions. The purpose of the guide rods requires that they touch the ground and have weight upon them while the ski is in use.
"Claim language is given its plain, ordinary, or accustomed meaning to one of ordinary skill in the relevant art ..."[12] Thus, in construing the plain meaning of this claim, the court must think of a person "of ordinary skill in the relevant art." If a "base" is something which supports a structure and the 594 patent describes a ski whereby the weight of the ski is going to be supported by the side portions with guide rods on the bottom of the side portions, clearly the side portions are a part of the "base." As such, the 594 patent *1194 clearly describes a "base" which extends laterally to the "edge" of the ski.
Bombardier would have this court adopt a definition of base whereby the only portion of Simmons' Flexi-Ski (and the Fritz Ski upon which Bombardier demonstrates its definition of "edge") would have a base that would be the only portion of the ski not actually touching the snow and not bearing any weight of the ski. In other words, the "edges" which Bombardier identifies on the Fritz Ski may indeed be termed edges, but they clearly cannot be termed edges of the base of the ski. This would nullify the plain and ordinary meaning of the term base. Thus, "edge" must be defined in the context of the phrase of which it is a part because it "finds context in the surrounding words."[13] While a court cannot import limitations into the claim language, nor can the court interpret claim language so broadly as to negate the context it resides in. The construction put forth by Simmons is more in accord with the "ordinary and accustomed meaning of the claim terms."[14]
 "having a top adapted to be connected to a snowmobile"
As Bombardier concedes, this language is not at issue in this case. Therefore, to the extent necessary, the court adopts Simmons' proposed construction of the term: "some portion of the upper surface of the claimed snowmobile ski base is designed to allow for the attachment of the snowmobile ski to a snowmobile, with no limitation imposed on the shape of the upper surface."
 "first side portion extending in the longitudinal direction and extending downward from the first edge; a second side portion extending in the longitudinal direction and extending downward from the second edge"
The court adopts Simmons' proposed construction of this claim:
The claim term "first side portion extending in the longitudinal direction and extending downward from the first edge" means a structure forming at least part of a lateral side of the ski which extends from a higher to a lower position from the first lateral edge of the snowmobile ski base.
The claim term "second side portion extending in the longitudinal direction and extending downward from the first edge" means a structure forming at least part of a lateral side of the ski which extends from a higher to a lower position from the second lateral edge of the snowmobile ski base.
Bombardier argues that the side portions need not be perpendicular to the ground. The court does not read the construction of Simmons to require such a limitation. However, the side portions do "extend[ ] downward" from an edge, thus suggesting that, in general, such side portions will be approximately perpendicular to the ground, as for example when a person falls "downward" off the "edge" of a cliff. A strong wind might carry such a person away from the cliff at the same time they are still falling downward so that there is some slope to their fall, however, such a person is still traveling downward. Thus, downward is defined as "from a higher place to a lower ... moving or extending from a higher to a lower *1195 place."[15]
More important, inasmuch as the court's prior definition of the words "base" and "edge" demonstrate that the "side portions" are a part of the base, i.e., "portion" (defined as "a part of any whole, either separated from or integrated with it ...." refers to a portion of the "base") Bombardier's other objections to the proposed claim construction disappear.
 "guide rod"
The court adopts Simmons' construction of "guide rod": "an elongate slender object made of a hard substance, such as metal."
 "disposed on a bottom of the first side portion" and "disposed on a bottom of the second side portion"
The court adopts Simmons' proposed construction:
The claim term "disposed on a bottom" means that the claimed "guide rods" are attached on the undersides of the claimed first and second downwardly extending side portions.
The Federal Circuit previously defined "bottom" to mean "underside of a given structure." The purpose of the guide rod is to touch the snow and assist in turning. Thus, the guide rods would not serve their purpose if they were only "positioned near" the bottom of the side portions, as Bombardier argues with respect to defining "disposed on." Because claim language must be interpreted according to one of ordinary skill in the relevant art, the court rejects Bombardier's proposed broadening of "disposed on." Thus, the guide rods must be placed on the bottom of the side portions, not merely "supported by, dependent on, or positioned near the bottom of the side portions" as Bombardier has proposed.

Claim 2
Bombardier does not dispute the proposed construction of Claim 2 put forth by Simmons. The court therefore finds that Simmons' proposed construction is consistent with the ordinary and plain meanings of the terms used and adopts it as the proper construction of the Claim.

Claim 6
Claim 6 depends from claim 2 and must meet all of the limitations of claim 2, plus the additional limitations of claim 6.
 "the base further comprises an upturned front portion having a front portion bottom"
There is no dispute as to this language. The court therefore accepts Simmons' construction: "front portion" means "the foremost part of the ski" and "front portion bottom" means "the underside of the front portion." "Upturned" means "turned or directed upwards."
 "further comprising a concavity in the front portion bottom such that snow is funneled past the front portion into the channel when the snowmobile ski is in use"
The court adopts Simmons' proposed construction, except as to the portion in italics below which has been added by the court to more accurately state the meaning of the Claim:
The claim term "further comprising a concavity in the front portion bottom, *1196 such that snow is funneled past the front portion into the channel when the snowmobile ski is in use" means the underside of the front portion of the claimed "base" is concave, which may or may not be a rounded concavity, such that as the snowmobile ski is in forward motion snow is directed into the claimed "channel" as though passing through a funnel.
The court agrees with Bombardier that concavity does not always connote a rounded surface, like the inside of a bowl. Rather, concavity connotes a depressed or hollow surface which may or may not have hard angles. The Minnesota District Court addressed this very issue and seemed to agree by explaining: "The dictionary defines `concavity' as something `hollowed or rounded inward like the inside of a bowl' or `arched in.'"[16] Nothing in this definition requires a perfectly rounded shape, without hard angles.

Claims 9, 10, and 11
Disputes over claim 10 reflect the same disputes as at issue in claim 1 and are resolved according to the resolution of claim 1. Otherwise, there are no disputes over claims 9 through 11. The court finds Simmons' construction consistent with the plain and ordinary meaning of the claim language and adopts that construction.

Motion for Summary Judgment on Non-Priority (# 176-1)
In 1991, Verlin Simmons developed a dual-runner ski, designed to improve the handling and operation of a snowmobile.[17] On December 9, 1992, Simmons, through his attorney Alan Edwards, filed a patent application with the United States Patent and Trademark Office ("USPTO") titled "Snowmobile Ski," which was assigned Application No. 07/988,231 (the "231 application").
In July of 1993, Alan Edwards informed Simmons that he was going to leave the practice of law. Simmons thereafter retained Thomas Fehr as a patent attorney. On September 16, 1993, the USPTO issued an Office Action which rejected the claims of the 231 application. The Office Action stated that if no response was filed within three months, the application would be deemed abandoned. A response could be filed up to six months later, provided it was accompanied by an extension of time fee. Thus, as of December 17, 1993, the 231 application was abandoned. Simmons contends that the Notice of Abandonment for the 231 application was sent to Alan Edwards, who had never formally withdrawn from the 231 application.
A second application, No. 07/988,820 (the "820 application") for a "Snowmobile Ski Flexing Apparatus," was also filed on December 9, 1992. That application became abandoned in October of 1993.
A third application was filed on July 1, 1993. It eventually issued into Patent No. 5,360,220 ("the 220 patent"). The 220 patent does not contain the terms "base," "longitudinal," "over snow," "guide rod," "tapering," "forward apex," or "funnel snow into channel." These terms are all prominent in the 590 patent.
On March 14, 1994, one day short of the six-month period within which a response was due for the 231 application but three months after it was deemed abandoned, Simmons filed another patent application, No. 09/213,950 ("the 950 application"). *1197 This application eventually issued as Patent No. 5,936,594, the 594 patent embodied in the Flexi-Ski.
On March 4, 1994, ten days before the 950 application was filed, Mr. Fehr, Simmons' patent counsel, sent a letter to Simmons with a draft of the 950 application. The draft indicated: "This is a continuation-in-part of copending U.S. application [No. 231] filed on December 9, 1992." The cover letter somewhat ambiguously states that, "we could either let the original application become abandoned or spend some additional time and money arguing that a patent should issue on it for the downwardly extending sides confined to the middle portion of the ski." The letter also states that "the latter course would be somewhat safer but more expensive" and tells Mr. Simmons "the choice is yours."
When the 950 application was filed with the USPTO, the language stating that it would be a continuation-in-part of the 231 application had been removed. Indeed, in a draft of the 950 application dated March 15, 1994 the language is crossed out. Mr. Fehr testified that he could not remember why he crossed out the language, but that he only would have done so at the request of the client. Fehr also states that it may have been the result of a miscommunication. The 950 application was also filed with a Combined Declaration and Power of Attorney, signed by the inventor, which has a check box to identify "continuation-in-part" applications and a check box to identify "original" applications. The box for "original" is checked. Mr. Fehr also stated in a deposition that he had an "extremely vague recollection that Val Simmons told me the ski they had sold was completely different from the version embodied in the 950 patent application." Nevertheless, Simmons argues and proffers affidavits stating that Verlin Simmons, Val Simmons, as well as the patent attorneys involved with the 950 application, intended it to be a continuation-in-part of the 231 application.
On April 26, 1994, six weeks after the 950 application was filed, the Patent Office mailed a "Notice of Abandonment" to Simmons stating that there had been no response to the last office action. Simmons states that the Notice was sent to Mr. Edwards, who was no longer a patent attorney, and that it was not forwarded. Additionally, the Notice did not state the date on which the 231 application was abandoned.
During prosecution of the 950 application, the patent examiner rejected certain claims of the 594 patent because it contained no teachings regarding how the "Loop" identified on the front of the ski functioned. The patent examiner suggested that this could be overcome by identifying the 594 patent as a CIP of the 220 patent to "obviate this inadequacy and to complete the disclosure with respect to this aspect of the instant application." On November 3, 1997, Simmons filed an amendment asking the Patent Office to add a reference stating that the 950 application is a continuation in part of the 220 patent. On March 11, 1998, Simmons filed another requested amendment to the 950 application with the Patent Office. Mr. Kunzler faxed the application to the examiner. The request stated: "At page 2, line 2, after `patent number 5,360,220' please insert  and is also a continuation-in-part of copending U.S. Application Serial No. 07/988,231 [the 231 application] filed on December 9, 1992, now abandoned." The requested amendment is unsigned and undated. The File History notes that a "proposed amendment" was received and that *1198 it would be granted "consistent w/ appellant's request." However, rather than amending the 950 application to read "and is also a continuation-in-part" the examiner wrote "which is a continuation-in-part." The effect of this was to identify the 231 application as the grandparent of the 950 application rather than as a second parent of the 950 application. Importantly, the 231 application was still abandoned during this time.
The 950 application was issued as the 594 patent on November 17, 1998. The 594 patent states that it is a continuation-in-part of the July 1, 1993 220 patent, and that the 220 patent is a continuation-in-part of the 231 application, dated December 9, 1992. Neither party believes this is correct. Simmons contends that the intent all along was that the 594 patent be a continuation-in-part of the 231 application. However, Simmons took no action to correct the 594 patent until more than two years after it was issued. Thus, between November of 1998 and May of 2001, the erroneous priority data appeared on the face of the 594 patent. The 231 application had been abandoned during this entire time.
On November 12, 1999, Simmons filed a complaint against Koronis, Inc., another snowmobile manufacturer, alleging infringement of the 594 patent. In June, 2001, Koronis filed a motion for summary judgment, arguing that the 594 patent was invalid by reason of the on-sale bar under 35 U.S.C. § 102(b). At a hearing on June 13, 2001,
Koronis argued that Verlin Simmons testified in his deposition that Simmons, Inc. was selling skis encompassing the claims of the '594 Patent in January of 1993. As part of their response to this allegation, Simmons, Inc. asserted that they have applied for a revival of the abandoned '231 Application with the [USPTO]. Simmons argued that if the '231 Application is revived, the '594 Patent may refer back to the '231 Application and use its earlier December 9, 1992 filing date to avoid any on-sale bar resulting from January 1993 sales.[18]
The motivation for Simmons to revive the 231 application came as a result of this litigation. Simmons states that it was not aware that the 231 application had been abandoned until the Koronis litigation.
Pursuant to 37 C.F.R. § 1.137(b), Simmons filed a Petition for Revival of an Application for Patent Abandoned Unintentionally. The Petition for Revival was accompanied by a request for a three-month extension of time and an extension fee, the purpose being to establish copendency between the 231 application and the 950 application. On August 8, 2001, the Patent Office granted both the Petition for Revival and the extension. The Patent Office expressly stated that the Petition for Revival
[M]et the requirements to revive the parent application [the 231 application] under 37 C.F.R. § 1.137(b). The above-identified application [the 231 application] is being revived solely for the purposes of continuity. As continuity has been established by this decision reviving the application, the application is again abandoned in favor of the continuation-in-part filed March 15, 1994 [the 950 application].
However, the face of the 594 patent still incorrectly identified the relationships between the patents, identifying the 594 patent *1199 as the "grandchild" of the 231 application, rather than directly as a "child" as intended. Thus, on August 14, 2001 Simmons filed a Request for Correction of Office Mistake for the 594 patent. Simmons apparently decided against pursuing the Request for Correction and on December 12, 2001 asked the Patent Office to withdraw and cancel the Request "in view of a reissue patent application to be filed." Simmons never filed a reissue application. Simmons states that it did not pursue correction of the error because it did not believe it was necessary.
Two issues are raised by Bombardier's Motion for Summary Judgment of Non-Priority Under 35 U.S.C. § 120: First, what is the proper priority date for the 594 patent? Second, if the face of the 594 patent incorrectly reflects the priority relationship, does this court have the power to correct it? The court finds that patent 594 cannot claim to be a continuation-in-part of patent application 231. The court further finds that it does not have power to correct the claimed error on the face of patent 594. Therefore, summary judgment on this issue is hereby GRANTED in favor of Bombardier.
Claims in a patent application may receive the benefit of the filing date of a parent application if a proper priority claim is made.
An application for patent for an invention disclosed in the manner provided by the first paragraph of section 112 of this title in an application previously filed in the United State, or as provided by section 363 of this title, which is filed by an inventor or inventors named in the previously filed application shall have the same effect, as to such invention, as though filed on the date of the prior application, if filed before the patenting or abandonment of or termination of proceedings on the first application or on an application similarly entitled to the benefit of the filing date of the first application and if it contains or is amended to contain a specific reference to the earlier filed application.[19]
This statute reveals four requirements which must be met before a patent application can claim the priority date of an earlier-filed application: (1) the invention must be disclosed in the parent application pursuant to 35 U.S.C. § 112; (2) the inventor must be the same as in the prior application; (3) the present application must have been filed before the abandonment of the prior application; and (4) the present application must make a specific reference to the earlier filed application. "The plain and unambiguous meaning of section 120 is that any application fulfilling the requirements therein `shall have the same effect' as if filed on the date of the application upon which it claims priority."[20] The dispute in this case is whether the 231 application was copending with the 950 application, and whether the 594 patent which issued from the 950 application specifically references the 231 application. If either of these requirements are not satisfied, the 594 patent cannot claim the priority date of the 231 application.

Copendency
There is a genuine issue of material fact with respect to copendency. There is no *1200 dispute that when Simmons filed the 950 application, the 231 application had already been abandoned. Indeed, the 231 application remained abandoned for nearly eight years. However, it is also undisputed that Simmons filed a Petition to Revive the 231 application which was granted by the USPTO. In its decision granting the Petition, the USPTO specifically stated that it was done "solely for the purposes of continuity" and that as a result of the revival "continuity has been established." Further, the Manual of Patent Office Examining Procedures states that "[i]f an abandoned application is revived ... it becomes reinstated as a pending application and the preceding period of abandonment has no effect."[21] Therefore, given the revival and the extension granted to the 231 application, it is clear that the 950 application was filed "before the ... abandonment of ... the first application ..."[22]

Specific Reference
In order for a patent to claim the priority date of an earlier patent application it must also specifically reference the earlier application.[23] There is no doubt that the 594 patent references the 231 application. That reference, however, contains a misstatement of the relationship claimed by Simmons. Therefore, the question is whether the misstated reference satisfies the specific reference requirement of 35 U.S.C. § 120.
Patent Office Rule 78 states that the "specific reference" must include language "indicating the relationship of the applications."[24] "Court decisions accept Rule 78(a) as defining the meaning of `specific reference' in Section 120."[25] Thus, in Sampson v. Ampex Corp.,[26] the Second Circuit rejected a claim to an earlier priority date where the patentee had failed to meet the requirements of Rule 78. Specifically, the "1964 application did not contain a reference to the 1961 application, to say nothing of the `specific reference' to serial number, and filing date, and a statement of the relationship between the two applications, as required by Rule 78(a)."[27] The Ninth Circuit has also stated that Rule 78 governs the "specific reference" requirement. "It seems clear that if the benefit of the filing date of a prior application is claimed, the subsequent application must contain or be amended to contain a reference in the specification to the prior application identifying it by serial number and filing date and indicating the relationship of the applications."[28]
Section 201 of the Manual of Patent Examining Procedure states:
Proper identification of priority applications is essential to establishing accurate and complete relationships among various patent documents which reflect the same invention. Knowledge of these relationships is essential to search file management, technology documentation *1201 and various other purposes.[29]
Neither party argues that the 594 patent contains a correct recitation of the relationships involved. Simmons states that the 594 patent is in actuality a CIP of the 231 application of December 9, 1992 and that the mistake is due to an error of the USPTO. Regardless of where the error lies, Simmons was the party who was in a position to ensure that the face of the 594 patent accurately reflect the relationship between the applications. Simmons states that it did not become aware of the mistake until two years after it was committed. However, even a cursory inspection would have revealed the mistake to Simmons. As the Federal Circuit has stated, "It does not seem to us to be asking too much to expect a patentee to check a patent when it is issued in order to determine whether it contains any errors that require the issuance of a certificate of correction."[30] Had Simmons immediately insisted on correction, this issue would not be before the court.
This requirement [of making a specific reference] imposes no great hardship on an applicant, since he is assumed to be intimate with the details of the relationship of his various applications and the public stands to benefit by being able to determine the effective date of an application without engaging in a long and expensive search and comparison of previous applications.[31]
To be sure, the 594 patent does contain a reference to the 231 application and the date of priority which is claimed and merely misidentifies the claimed proper relationship of the applications. Simmons argues, therefore, that no public policy has been violated as a person looking at the 594 patent could "determine with a minimum of effort the exact filing date upon which a patent applicant is relying to support the validity of his application or the validity of a patent issued on the basis of one of a series of applications."[32] However, it seems clear that not only is it appropriate to require a statement of some relationship in an application, but a statement of the correct relationship. Parties viewing a patent and taking legal risks based upon it are entitled to know the correct relationship of the applications. Simmons was the only party in a position to know the claimed correct relationship and chose not to correct the 594 patent. As such, the court finds that while Patent 594 contains a reference to the 231 application, it does not contain a specific reference as required by 35 U.S.C. § 120.

Correction by the Court
The next question presented is whether the court can correct the alleged mistake on the face of patent 594. The court concludes that it does not have the power to correct the mistake.
It is clear that this court has some power to correct mistakes so as to "give to [the patent] the meaning which was intended by the applicant and understood by the examiner."[33] However, absent statutory authority, district courts are limited to correcting *1202 obvious minor typographical and clerical errors in patents."[34] Where the subject of correction is "subject to reasonable debate" district courts do not have the power to correct an alleged mistake.[35]
A misstatement of the alleged proper relationships between two patent applications is not an obvious minor clerical error. Rather, correcting the error alleged by Simmons would be a substantial revision of patent 594. Further, "where the error is not evident from the face of the patent itself ... it is important that the PTO bring its expertise to bear and consider whether such a correction is appropriate."[36] The mistake claimed by Simmons is certainly not evident from the face of the patent itself. As such, the court finds that it would be inappropriate to correct the patent in the manner requested. Therefore, Simmons cannot claim a priority date for patent 594 of December 9, 1992.

Setting the Priority Date
There remains the question of whether the priority date for patent 594 should be set at July 1, 1993, or at March 15, 1994. Patent 594 states that it is a continuation in part of patent 220, dated July 1, 1993. Bombardier argues that patent 594 cannot be a CIP of patent 220 because patent 594 introduced "new matter" including concepts such as "base," "longitudinal," over snow, "guide rod," "tapering," "forward apex," and "funnel snow into the channel."[37] Bombardier further argues that the 220 application "fails to meet the enablement and written description requirements of § 112."[38]
For some reason, in response to the facts set forth by Bombardier, Simmons states that "[n]either party disputes that the '594 Patent claims to be CIP of the 220 Patent" and that "[t]he '594 Patent's relationship to the '220 Patent has no bearing on the question of whether it has priority to the '231 Application."[39] In fact, in its Undisputed Facts No. 12, Bombardier states that the text of Patent 220 "does not contain any of the following: `base,' `longitudinal,' `over snow,' `guide rod,' `tapering,' `forward apex,' `funnel snow into channel.'"[40] In its response to this particular undisputed fact, Simmons states that these facts are "True but immaterial" and that the "exact language that appears in the '220 Patent is not material to any fact relating to Bombardier's current motion on the priority claim of the '594 Patent."[41]
It is not clear to the court why Simmons does not address Bombardier's arguments with respect the patent 594's claimed relationship with patent 220. In footnote 2 of its Memorandum in Opposition, Simmons mistakenly asserts that "Bombardier's motion is directed only to the issue of whether the '594 Patent is entitled to claim priority to the filing date of the '231 Application.... Bombardier does not assert, and accordingly Simmons has not addressed, whether in the absence of such priority to any other date prior to the *1203 filing of the '950 Application."[42] However, Bombardier has clearly argued that patent 594 cannot properly claim to be a CIP of patent 220 because Patent 594 introduces "new matter." In addition, the relief requested by Bombardier was to set a priority date for patent 594 of March 15, 1994.[43]
Bombardier set forth in its facts the "new matter" it alleges is contained in patent 594 and Simmons admitted the facts as true. As such, the court is forced to conclude that patent 594 cannot claim to be the CIP of patent 220. Therefore, by default, patent 594 is left with a priority date in accord with the filing of its own application, March 15, 1994. Therefore, Bombardier's Motion For Summary Judgment of Non-Priority is GRANTED (# 176-1). The court finds that patent 594 has a priority date of March 15, 1994 and will proceed to the other motions for summary judgment on that basis.

Plaintiff's Motion for Summary Judgment on Defendants' Inequitable Conduct Defense (# 209-1) and Bombardier's Request for a Bifurcated Hearing (# 230-1)
Bombardier asserts the defense of inequitable conduct with respect to two events: (1) the Revival Petition filed by Simmons' with the USPTO to revive the '231 Application; and (2) Simmons' failure to disclose the Fritz patent to the USPTO prior to its issuance of Patent 594. Bombardier also asks for a bifurcated hearing with respect to these issues. For the reasons stated at oral argument, the court reserves these issues until a later date.

Cross Motions for Summary Judgment on Anticipation (# 199-1 and # 205-1)
Bombardier asks the court to declare summary judgment in its favor by finding that the 594 patent is invalid because it was anticipated by prior art. Simmons has also filed a motion for summary judgment asking the court to declare that there was no anticipation. The court finds that the 594 patent was not anticipated and grants summary judgment in favor of Simmons on this issue.
Under 35 U.S.C. § 282, a patent issued by the United States Patent and Trademark Office is presumed valid. A party wishing to invalidate a patent must establish its invalidity by clear and convincing evidence.[44] "[T]he burden of persuasion [is] on the party who asserts that the patent is invalid."[45] Thus, unless a reasonable jury could find by clear and convincing evidence that the 594 patent was anticipated by prior art, summary judgment is appropriate in favor of Simmons.
"A patent is invalid for anticipation if a single prior art reference discloses each and every limitation of the claimed invention."[46] The court's resolution of the proper claim construction with respect to the word "edge" and the "downwardly extending side portions" effectively resolve Bombardier's claim that the Fritz Twin Track Ski anticipated claims 1 and 2 of patent 594. As construed by the court, *1204 the "edge" is the outermost portion of the ski, at which point the side portions extend downward. On the Fritz Twin Track Ski, the "side portions," if they can be called such, extend downward before reaching the edge of the base, or the outermost portion of the ski. Therefore, the Fritz patent does not anticipate independent claims 1 and 10, or dependent claims 2, 6, 9, or 11.
Bombardier's claim that the Fritz ski anticipated claim 6 of the 594 patent is also resolved by the court's claim construction. While the court agrees with Bombardier that "concavity" does not require a perfect roundedness, it does require a hollowness or a rounding inward. This court agrees with the District of Minnesota, which previously determined that the Fritz patent "does not evidence a concave bottom portion by `clear and convincing evidence.'"[47] Thus, there is no genuine issue of material fact as to claim 6.
The court also finds that Simmons' First Generation Ski does not anticipate the 594 patent. The First Generation Ski does not have edges from which side portions extend downward. The Eleneke patent also does not anticipate patent 594 for the simple fact that it does not disclose a "top adapted to be connected to a snowmobile," nor does it disclose guide rods. Therefore, Plaintiff's Motion for Summary Judgment on No Anticipation is GRANTED (# 205-1).

Cross Motions for Summary Judgment on Non-Obviousness (# 199-1 and # 211-1)
Both sides seek summary judgment on the issue of obviousness. Unlike the defense of anticipation, which requires looking at a single piece of prior art, the defense of obviousness requires clear and convincing evidence that "`differences between the subject matter to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.'"[48] The court finds that no reasonable jury could find by clear and convincing evidence that patent 594 is invalid based on the defense of obviousness.
Four factual inquiries  the so-called Graham factors[49]  are involved in determining obviousness: "(1) the scope and content of the prior art; (2) the level of ordinary skill in the art; (3) the differences between the claimed invention and the prior art; and (4) secondary considerations of nonobviousness, which in case law is often said to include commercial success, long-felt but unresolved need, failure of others, copying, and unexpected results."[50]
The court first notes that the fact that individual elements of a claimed invention have appeared in prior art is not sufficient for a finding of obviousness. "[C]ombination claims can consist of combinations of *1205 old elements as well as new elements."[51] "The genius of invention is often a combination of known elements which in hindsight seems preordained."[52] But hindsight evaluation is exactly what this court must avoid.[53] "To prevent hindsight invalidation of patent claims, the law requires some `teaching, suggestion or reason' to combine cited references."[54]
Bombardier has failed to identify such a teaching. For example, Bombardier's expert, Stan Johnson, merely identified twelve patents and prior art skis that he believed collectively contain the elements or features of the claims of the 594 patent. He does not identify a "teaching, suggestion or reason" motivating the combination.[55]
Bombardier is correct that such a motivation "may flow from the prior art references themselves, the knowledge of one of ordinary skill in the art, or, in some cases, from the nature of the problem to be solved."[56] But unless the solution is obvious to one of ordinary knowledge in the skill, the inventor who actually solves the problem should not be punished.
Further, the court has already discussed above in both the claim construction section and the anticipation section, the reasons the Fritz Twin Track Ski (the prior art Bombardier primarily relies upon again here) does not tread upon the claims of the 594 patent. It is also important to note that the Fritz ski was on the market for more than 15 years before Simmons' Flexi-Ski. The problems solved by the Flexi-Ski were well-known during this time. Yet it was the Flexi-Ski which apparently solved these problems. It is difficult to imagine that the solution was obvious in the light of this time-span.
Finally, the secondary considerations element of the Graham factors is compelling in this case. "Secondary considerations may be ... the most probative evidence in the record regarding obviousness."[57] One such secondary consideration is the existence of a long-felt but unresolved need.[58] Simmons put forth persuasive evidence that the Flexi-Ski, the embodiment of the 594 patent, solved at least three such needs: improved cornering, better overall handling, and the elimination of darting (the propensity of a snowmobile ski to follow the ruts left by prior snowmobiles). Indeed, this was the primary reason Bombardier used the Flexi-Ski in designing its own Precision Ski.
Another secondary consideration is how the industry greeted the product.[59] Here again Simmons put forth persuasive evidence that the Flexi-Ski was heralded as *1206 "revolutionary" and "unique."[60] Simmons also put forth persuasive evidence that the Flexi-Ski produced unexpected results, further suggesting that its design was not obvious.[61]
Finally, Simmons also put forth abundant evidence that the Flexi-Ski met with great commercial success, another secondary factor which courts consider.[62] For example, in 2000, Simmons Flexi-Ski accounted for 96.5 percent of Simmons' total sales of $1,705,517.[63]
As a final secondary factor, the court notes that Bombardier admitted that in designing its Precision Ski it looked only at the Flexi-Ski and attempted to "design around" it. Thus, while Bombardier argues that the Flexi-Ski was anticipated by prior art and was obvious in the face of prior art, it chose to rely solely on the Flexi-Ski in its design. Such copying is evidence that the patented device has characteristics which are not available or obvious in the prior art.[64]
For the foregoing reasons, the court finds that no reasonable jury could conclude, by clear and convincing evidence, that the 594 patent is invalid for obviousness. Therefore, Plaintiff's Motion for Summary Judgment of Non-Obviousness is GRANTED (# 211-1).

Bombardier's Motion for Summary Judgment on Non-Willfulness (# 197-1)
Enhanced damages in a patent infringement case are available only where there is clear and convincing evidence of a willful violation of the patent. The party claiming infringement must show by clear and convincing evidence that "the infringer acted in disregard of the patent, that the infringer had no reasonable basis for believing it had a right to engage in the infringing acts."[65] The court holds that no reasonable jury could find, by clear and convincing evidence, that Bombardier willfully infringed the 594 patent.
When competent legal advice is obtained and followed, the alleged infringer has a valid defense against willfulness.[66] In this case, there is no question that Bombardier sought and obtained advice from counsel that its design would not infringe patent 594. The only questions raised are as to the timing of the opinion and its competence.
Simmons argues that by the time Bombardier received its first opinion from counsel regarding its design it had already finalized its design and decided to go forward with production. The court finds this unpersuasive. The fact is that Bombardier sought advice from counsel at a stage in the process when it was still free to change its design or not go forward with it at all. Further, the fact that Bombardier had finalized its design and decided to go forward with production before seeking outside counsel makes perfect sense. Why spend large amounts of money evaluating potential infringement by a product that is *1207 still in the design stage and perhaps not worthy of producing? It does not seem unusual that a company would want to finalize a design before seeking an opinion on infringement for the simple fact that changes made after receiving such an opinion would risk negating the opinion concerning infringement.
Simmons also argues that the opinion on infringement was incompetent. However, the fact that Judge Kimball reached the same conclusion as the opinion sought by Bombardier suggests that the opinion was not incompetent and was in fact based on a good faith review of the evidence and a fair attempt to reach the correct answer.[67] That Judge Kimball's ruling was later reversed on technical grounds does not establish that the conclusions were unreasonable. In addition, the opinion sought from outside counsel confirmed the judgment of Bombardier's own counsel, further suggesting good faith reliance on the opinion of competent counsel.
Finally, the evidence put before the court establishes that Bombardier was aware of the potential for infringement, discussed it with Simmons, and broke off negotiations with Simmons only after reasonably coming to the conclusion that it could "design around" the patent.
In sum, Bombardier believed it had "made specific changes deemed adequate by counsel to avoid infringement."[68] As such, the court finds that a reasonable jury could not find willfulness by clear and convincing evidence. Therefore, Defendants' Motion for Summary Judgment on Non-Willfulness is GRANTED (# 197-1).

Conclusion
The motions are resolved as follows:
1. Plaintiff's Motion for Summary Judgment on Claim Construction (# 207-1) is GRANTED IN PART and DENIED IN PART.
2. Defendants' Motion for Summary Judgment on Non-Priority (# 176-1) is GRANTED.
3. Defendants' Motion for Summary Judgment of Non-Infringement and/or Invalidity of Simmons' Patent (# 199-1) is DENIED.
4. Plaintiff's Motion for Summary Judgment on No Anticipation (# 205-1) is GRANTED.
5. Plaintiff's Motion for Summary Judgment on Non-Obviousness (# 211-1) is GRANTED.
6. Defendants' Motion for Summary Judgment on Non-Willfulness (# 197-1) is GRANTED.
7. Plaintiff's Motion for Summary Judgment on Defendants' Inequitable Conduct Defense (# 209-1) and Defendants' Request for a Bifurcated Hearing (# 230-1) are held over until after trial.
At oral argument the court notified the parties of its intent to treat Plaintiff's Opposition to Defendants' Motion for Summary Judgment on Non-Infringement and Invalidity as a motion for summary judgment on the issue of Bombardier's alleged infringement. As such, Defendants' response brief is due no later than August 6, 2004. Plaintiff's reply to the response is due no later than August 18, 2004.
NOTES
[1]  Simmons, Inc. v. Koronis Parts, Inc., 2001 WL 1095008 (D.Minn.2001).
[2]  Simmons, Inc. v. Bombardier Inc., 2002 WL 31956160 (D.Utah 2002).
[3]  Simmons, Inc. v. Bombardier Inc., 73 Fed.Appx. 421 (Fed.Cir.2003), cert. denied, ___ U.S. ___, 124 S.Ct. 1424, 158 L.Ed.2d 88 (2004).
[4]  Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1304 (Fed.Cir.1999).
[5]  Markman v. Westview Instruments, Inc., 52 F.3d 967, 983  (Fed.Cir.1995) aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996).
[6]  Johnson Worldwide Associates, Inc. v. Zebco Corp., 175 F.3d 985, 989 (Fed.Cir.1999).
[7]  Day Intern., Inc. v. Reeves Brothers, Inc., 260 F.3d 1343, 1348 (Fed.Cir.2001).
[8]  RANDOM HOUSE WEBSTER'S UNABRIDGED DICTIONARY at 172 (2d. ed.1993).
[9]  Simmons, Inc. v. Bombardier, 73 Fed.Appx. at 423-24.
[10]  RANDOM HOUSE WEBSTER'S UNABRIDGED DICTIONARY at 620.
[11]  WEBSTER'S UNIVERSAL DICTIONARY AND THESAURUS at 58 (1993).
[12]  Simmons, Inc. v. Bombardier, Inc., 73 Fed.Appx. at 422-23.
[13]  Simmons, Inc. v. Bombardier, Inc., 73 Fed.Appx. 421, 422-23 (Fed.Cir.2003) (citing Hockerson-Halberstadt, Inc. v. Converse Inc., 183 F.3d 1369, 1374 (Fed.Cir.1999)).
[14]  Johnson Worldwide Associates, Inc., 175 F.3d at 989.
[15]  RANDOM HOUSE WEBSTER'S UNABRIDGED DICTIONARY, at 1507.
[16]  Simmons v. Koronis Parts, Inc., 2001 WL 1095008 at *5 (citation omitted).
[17]  Id. at *1.
[18]  Simmons, Inc. v. Koronis, Inc., 2001 WL 1095008 at *2.
[19]  35 U.S.C. § 120.
[20]  Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 556 (Fed.Cir.1994), cert. denied, 513 U.S. 1151, 115 S.Ct. 1102, 130 L.Ed.2d 1069 (1995).
[21]  MANUAL OF PATENT EXAMINING PROCEDURE § 201.11(6th ed., rev. 2 1996) (emphasis added).
[22]  35 U.S.C. § 120.
[23]  35 U.S.C. § 120.
[24]  37 C.F.R. § 1.78.
[25]  CHISUM ON PATENTS § 13.06.
[26]  463 F.2d 1042 (2nd Cir.1972).
[27]  Id. at 1045 (emphasis added).
[28]  Hovlid v. Asari, 305 F.2d 747, 751-52 (9th Cir.1962).
[29]  MANUAL OF PATENT EXAMINING PROCEDURE § 201.14(d).
[30]  Southwest Software, Inc. v. Harlequin, Inc., 226 F.3d 1280, 1296 (Fed.Cir.2000).
[31]  Sampson v. Ampex Corp., 333 F.Supp. 59, 65 aff'd 463 F.2d 1042 (2nd Cir.1972).
[32]  Sampson v. Ampex Corp., 463 F.2d 1042, 1045 (2nd Cir.1972).
[33]  I.T.S. Rubber Co. v. Essex Rubber Co., 272 U.S. 429, 442, 47 S.Ct. 136, 71 L.Ed. 335 (1926).
[34]  Novo Industries, L.P. v. Micro Molds Corp., 350 F.3d 1348, 1357 (Fed.Cir.2003).
[35]  Id.
[36]  Id. (emphasis added).
[37]  Memorandum in Support at 24.
[38]  Id.
[39]  Memorandum in Opposition at 16.
[40]  Memorandum in Support at 9.
[41]  Memorandum in Opposition at 10.
[42]  Memorandum in Opposition at 29, n. 2.
[43]  Memorandum in Support at 35.
[44]  Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 1346 (Fed.Cir.2000).
[45]  AIR-vend, Inc. v. Thorne Industries, Inc., 625 F.Supp. 1123, 1130 (D.Minn.1985) aff'd 831 F.2d 306 (Fed.Cir.1987).
[46]  Schering Corp. v. Geneva Pharmaceuticals, Inc., 339 F.3d 1373, 1377 (Fed.Cir.2003).
[47]  Simmons v. Koronis, 2001 WL 1095008 at *5.
[48]  McGinley v. Franklin Sports, Inc., 262 F.3d 1339, 1349 (Fed.Cir.2001) (quoting 35 U.S.C. § 103(a)).
[49]  Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966).
[50]  Ruiz v. A.B. Chance Co., 234 F.3d 654, 663-664 (Fed.Cir.2000).
[51]  Clearstream Wastewater Sys., Inc. v. Hydro-Action, Inc., 206 F.3d 1440, 1446 (Fed.Cir.2000).
[52]  McGinley, 262 F.3d at 1351.
[53]  Id.
[54]  Id.
[55]  Id.
[56]  Brown & Williamson Tobacco Corp. v. Philip Morris Inc., 229 F.3d 1120, 1125 (Fed.Cir.2000).
[57]  Procter & Gamble Co. v. Paragon Trade Brands, Inc., 989 F.Supp. 547, 593 (D.Del.1997).
[58]  Ruiz v. A.B. Chance Co., 234 F.3d at 662.
[59]  Vulcan Engineering Co., Inc. v. Fata Aluminium, Inc., 278 F.3d 1366, 1373 (Fed.Cir.2002).
[60]  Memorandum in Support of Summary Judgment on Non-Obviousness at Facts 5-16.
[61]  Id.
[62]  Vulcan Eng'g Co., 278 F.3d at 1373.
[63]  Memorandum in Support at 33.
[64]  Asahi/America, Inc. v. MFRI, Inc., 36 F.Supp.2d 618, 622 (S.D.N.Y.1999).
[65]  Electro Medical Systems, S.A. v. Cooper Life Sciences, Inc., 34 F.3d 1048, 1056 (Fed.Cir.1994).
[66]  Read Corp. v. Portec Inc., 970 F.2d 816, 828-29 (Fed.Cir.1992).
[67]  Simmons Inc. v. Bombardier Inc., 2002 WL 31956160 (D.Utah 2002).
[68]  Id. at 828.


250 Cal.App.2d 123 (1967)
THE PEOPLE, Plaintiff and Respondent,
v.
CLAUDE DELOIS SANDERS III et al., Defendants and Appellants.
Crim. No. 2608.
California Court of Appeals. Fourth Dist., Div. One.
Apr. 14, 1967.
 Fred E. Corbin, under appointment by the Court of Appeal, for Defendants and Appellants.
 Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Marvin A. Bauer, Deputy Attorney General, for Plaintiff and Respondent.
 WHELAN, J.
 In a jury trial defendants were found guilty of possession of marijuana for sale (Health & Saf. Code,  11530.5) and of transporting marijuana (Health & Saf. Code,  11531). They were sentenced on both counts for the terms prescribed by law. Execution of sentence as to the possession for sale charge was ordered stayed pending any appeal and during the service of any sentence the Adult Authority should pronounce in connection with count two, transporting marijuana; at the completion of the service of any sentence in connection with count two the stay was to become permanent. Each of the defendants was charged with and admitted prior convictions of two felonies. Defendants appeal.
 Facts
 On October 30, 1965 at about 1:55 p.m., Cody Isbell, a deputy sheriff of San Diego County, on duty in a patrol car, heard over his radio a broadcast which he identified as coming from the main business office of the Sheriff's Department of San Diego County that a motor vehicle either of the style known as an El Camino or of that known as a Ranchero, cream or light brown in color, with California license D 73011, containing a male Mexican adult and a non-Mexican white male adult, contained marijuana hidden in the bed of the truck and had left Calexico for an unknown destination.
 Isbell drove his car to Highway 80 which he entered and on which he drove easterly in the direction of El Centro and Calexico, El Centro being about 45 minutes driving time from the vicinity where he came onto Highway 80. Shortly, he observed *126 a dark brown El Camino 1960 model pickup pass him as it travelled in the direction away from El Centro and Calexico. Isbell turned and followed the other vehicle; he observed that there were two occupants who met the descriptions he had heard over the radio and that the license number of the vehicle was the same.
 Isbell radioed the sheriff's business office to say that the wanted vehicle was in front of him, and that he intended to pull it over at some point ahead. He brought the El Camino to a stop with his own car stopped immediately behind and alighted, carrying a shotgun. Sanders, the driver of the El Camino, got out, asked what it was all about, and was told that Isbell would inform Sanders as soon as additional help should arrive. Isbell directed that Rodriguez also alight from the El Camino and that he and Sanders place their hands on the roof of the car until other officers should arrive, which was done.
 In about three minutes, two Highway Patrol officers came on the scene. Sanders and Rodriguez were then handcuffed and their persons searched as well as the driver's compartment of the El Camino.
 With the use of a socket wrench found in the El Camino and two other wrenches, the three officers removed the bolts that held the floor of the truck bed to the chassis, of which there were 20 to 30. All of them appeared to have been removed previously, the paint from around the bolts having been peeled off. In a recess under the floor of the truck, well forward, four brown packages were found. The coverings of the packages permitted Isbell to see and to smell a part of the contents, which, in his opinion, was marijuana.
 Deputy Sheriff Narron of the narcotics detail came to the scene. He examined the packages and was of the opinion they contained marijuana. He gave the defendants advice of their constitutional rights required to be given by People v. Dorado, 62 Cal.2d 338 [46 Cal.Rptr. 169, 398 P.2d 361].
 In response to questions by Narron at that time, Sanders said he had been coming from Calexico, that he had not known Rodriguez before, that he had never before seen the four packages that came from his vehicle, that he had never known anything about narcotics, that he lived in Santa Maria, and that he didn't wish to talk any longer to Narron and wanted to see an attorney.
 In response to questions by Narron at that time, Rodriguez said he had been coming from the valley; that he had not *127 known Sanders before; that he had been hitchhiking and Sanders had stopped and given him a ride; that he had been arrested previously on a narcotics charge; and that he did not wish to talk further without an attorney.
 After qualifying as an expert in knowledge of the traffic in marijuana, Narron gave testimony from which it might be inferred that four kilos, the quantity of marijuana contained in the four packages, was a commercial quantity.
 Upon analysis, the contents of the four packages proved to be marijuana, as did certain debris from Sanders' jacket found in the car, from the pockets of the clothing he wore, and from pockets of the clothing worn by Rodriguez.
 The radio message heard by Deputy Sheriff Isbell had not named the source of the information that it contained.
 Paul V. Martin, an official of the Customs Agency Service of the United States Customs Bureau, testified, outside the presence of the jury, that on October 30 he was given certain information by an informant concerning a smuggling operation from a foreign country.
 A few days prior to October 30, Martin had information from the informer that two persons would be coming down from the north to purchase marijuana in Mexico about October 30; Martin told the informer how he could be reached by telephone on that date; on October 30, shortly after 1 p.m., the informer in person told Martin that there was a quantity of marijuana being smuggled in an El Camino or Ranchero vehicle, that the vehicle was light cream or brown in color, with California commercial license plate D 73011.
 The information included a description indicating that one of the suspects was a male American adult, and the other a male Mexican adult; did not include a statement as to the quantity of the purchase; and did include a statement that the marijuana was supposed to be under the floor of the back of the pickup. The informer did not say whether his information was based upon his own observation or had been obtained from another; Martin did not know if the informer had been present at or participated in the sale.
 Upon receiving the information, Martin immediately searched the Calexico- El Centro area for the described vehicle, without success. He then called the Imperial County Sheriff's Department, gave the information he had received, requested that the sheriff place an all-points radio broadcast for the described vehicle, and requested that the sheriff stop and hold the vehicle. *128
 Martin had been in touch with the informer for about a year prior to October 30, during which time the informer had supplied Martin on approximately 15 occasions with specific information about the smuggling of narcotics into the United States; the previous information from the informer had resulted in an estimated 15 arrests and convictions and on no occasion had been found to be inaccurate; Martin had acted on the basis of such information on those prior occasions; arrests and searches made as the result of such information resulted in prosecutions in the United States courts, in all of which there had been convictions after trial or as the result of plea, except in the two cases then on trial.
 The following questions and his answers were put to Martin:
 "Q. Will you reveal the identity of the informant at this time? A. No, sir."
 "Q. And why won't you reveal the identity of the informant? A. I have been instructed by the Customs Agency Service as a matter of policy that that department will not reveal confidential informants in the courtroom."
 "Q. And have you been told by the Customs Agency Service what you are to do if you are ordered by a Court to reveal the identity of this informant? A. I am to respectfully indicate the reasons therefor, and decline to answer the name of the informant."
 "Q. And what happens if the Court tells you they are going to hold you in contempt of court? A. I will be held in contempt, I guess."
 Sanders testified he left Santa Maria about 6 p.m. of October 30 and drove to Mexicali where he had not previously been and where he arrived about 11 or 11:30 p.m. He registered at a hotel after locking his car, which was left alongside the hotel on a street just off the main street; he then left the hotel to look around. Outside the hotel a man accosted him asking if Sanders would carry a package across the border for him; Sanders said "No"; the man was persistent and suggested there would be compensation; Sanders had a hard time getting rid of the man, who was seen again in the company of two other men when Sanders returned to the hotel some three hours later. Next morning Sanders drove to Calexico about 12:25 p.m. and, seeing Rodriguez, whom he had not known before, asked the road to San Diego. In consideration for giving the directions, Rodriguez asked for and was given a lift. Sanders said he did not know how the packages got into his *129 vehicle; that he had not had any connection with or used marijuana since 1959 when he had been convicted of a narcotics offense for which he served 18 months. He had not removed or loosened the bed of the truck on October 29 or 30 nor seen it removed or loosened; nor had he removed it since about two months before.
 Rodriguez testified he had gone by bus to Calexico from Lompoc on October 28 to visit his father who lived in Mexicali; Rodriguez put up in a hotel in Calexico and sent a message to his family in Mexicali; they came to see him on October 29 and left him about 5 p.m.; they came again on Saturday at about 10 a.m. and were with him until about noon; when he went to the bus depot he had missed his bus and was given a ride by Sanders whom he had not known before and whom he encountered at about 12:35 p.m.; he had not known of the presence of the packages under the bed of the truck and did not know what was in them; he had been convicted in 1959 of smuggling marijuana and was released in August 1965, since when he had not had anything to do with narcotics; he had not been in Mexico during his trip to Calexico.
 The testimony of both Sanders and Rodriguez suggested the possibility that marijuana fragments might have gotten into their pockets while their personal effects, removed earlier by the sheriff's officers, were being put back by the officers.
 Rodriguez's sister testified that she lived in Mexicali with her father; that they learned on October 28 that Rodriguez was in Calexico; and she corroborated his testimony as to the family visits on October 29 and 30.
 Contentions of Defendants
 Defendants state their contentions thus:
 1. The evidence obtained by the law enforcement officers was the product of an illegal search and seizure.
 2. The trial court erred in overruling defendant's objection to the introduction of such evidence and the testimony of the police officers derived from an illegal arrest, search and seizure.
 3. The failure of the state to produce or to disclose the name of a material witness, or to disclose the name of the confidential informant, deprived the arrest and search of any basis of legality. The court also erred in denying defendants' motion for a new trial based on that contention.
 4. The trial court erred in submitting for the jury's consideration *130 two separate counts against each defendant for the possession of marijuana for sale and for transportation of marijuana; that for those offenses there can be only one conviction.
 Was There Probable Cause for the Arrest of Defendants?
 [1] Yes; having received through the official broadcast from the San Diego County sheriff's office information sufficient to arouse reasonably in the mind of a careful and prudent man a strong suspicion, honestly held, that the occupants of the El Camino were engaged in the transportation of marijuana, a felony, Officer Isbell had probable cause to arrest those occupants and as an incident to the arrest to search the car at the place of arrest, whether before or after the arrest. (See People v. Webb, 66 Cal.2d 107, 111-112 [56 Cal.Rptr. 902, 424 P.2d 342]; People v. Melchor, 237 Cal.App.2d 685, 690 [47 Cal.Rptr. 235]; People v. Schellin, 227 Cal.App.2d 245, 251 [38 Cal.Rptr. 593]; People v. Jackson, 202 Cal.App.2d 569, 574 [21 Cal.Rptr. 44]; People v. Hood, 150 Cal.App.2d 197, 201 [309 P.2d 856].)
 This preliminary justification for the arrest, search and seizure rests ultimately upon the source of the information broadcast by the sheriff's office; although, in this second link in the chain leading from the arrest back to the informer, of which the first link is the information received by the arresting officer, it was again proper for the San Diego sheriff to rely upon the information received from the Sheriff of Imperial County, who in turn might rely upon information certified to be credible by Martin, an official of the United States Treasury Department, concerning a matter coming within the scope of his official duties. (People v. Lopez, 196 Cal.App.2d 651, 654 [16 Cal.Rptr. 728].) Having reached this fourth link in the chain downward, we face the duty of testing the admissibility of the evidence obtained as the result of the arrest and search made upon what the arresting officer considered to be probable cause. That test is whether Martin had sufficient reason to rely upon the information given to him by the paid informer.
 Martin's previous transactions with the informer, as testified to by Martin and as recited herein, made it reasonable for him to rely upon the information given him on October 30. That information, in view of the reliability of the informer, would have given Martin probable cause for an arrest and incidental search; and, ascending through the chain of official *131 communication to Isbell, offered probable cause for the arrest and search actually made.
 It was not Isbell's duty to inquire behind the official message received by him for the purpose of determining its ultimate source, just as it is not the duty of an officer serving a warrant of arrest regular on its face to inquire into the sufficiency and reliability of the evidence upon which the warrant was ordered to issue. That does not mean that the pivot upon which the structure of apparent legality rests is immune from attack. In the instant case that attack fails to shake the sufficiency and reliability of the evidence to establish probable cause.
 [2] That the information from the reliable informer was passed on through several successive agents, each of whom was entitled to place reliance in the one from whom he received the information, does not destroy its value as a basis for probable cause. (People v. Gorg, 157 Cal.App.2d 515, 520 [321 P.2d 143].)
 Was the Evidence Produced by the Search Rendered Inadmissible by the Prosecution's Failure to Disclose the Name of the Informer?
 [3] No; in the light of all the circumstances testified to by Martin, who was subjected to cross-examination, it was within the sound discretion of the trial judge to permit the evidence to be introduced without requiring as a condition that the identity of the informer be disclosed. (Former Code Civ. Proc.,  1881.1.)  [fn. 1] Our Supreme Court has given recognition to the application of former section 1881.1, Code of Civil Procedure, in a proper case. (Martin v. Superior Court, 66 Cal.2d 257 [57 Cal.Rptr. 351, 424 P.2d 935].) A rule such as that expressed in former section 1881.1 does not, under the authority of McCray v. Illinois (March 20, 1967) 386 U.S. 300 [18 L.Ed.2d 62, 87 S.Ct. 1056], offend against the inhibition *132 of the Fourth Amendment to the federal Constitution. McCray, indeed, quotes language from section 1042, subdivision (c), Evidence Code, formerly found in section 1881.1, saying: "What Illinois and her sister States have done is no more than recognize a well-established testimonial privilege, long familiar to the law of evidence."
 While in McCray, supra, the cross-examination developed the names of persons convicted as the result of information supplied by the informer, that test of the verity of Martin's testimony was not made in the instant case. However, that failure was not the result of the refusal of the witness to give such information nor the result of any objection made by the prosecution or sustained by the court. The sustaining of objections to such questions would be error. (People v. Robinson, 166 Cal.App.2d 416, 421 [333 P.2d 120].)
 On the question of the constitutionality of former section 1881.1 with relation to the admissibility of the evidence found and seized as an incident to the arrest, no distinction need be made between a proceeding to suppress evidence, as in McCray, supra, a preliminary hearing, as in Martin, supra, and the criminal trial, as in the case at bench.
 [4] We believe that the proper application of former section 1881.1 does not exclude from the definition of "peace officer" an officer of the Customs Bureau charged with enforcing the laws of the United States governing illegal importations from foreign countries in a matter concerning the official duties of enforcement. A footnote in People v. Yet Ning Yee, 145 Cal.App.2d 513, 516 [302 P.2d 616], states: "... Prziborowski was a federal agent and not a 'peace officer' justified to make an arrest under section 836, Penal Code, as he is not included in the definition of 'peace officer' in section 817."
 Section 817, Penal Code, provides in part: "When in any law a public officer or employee is designated as, given the powers of, or determined to be, a peace officer, such officer or employee shall be deemed to be a peace officer but only for the purpose of that law."
 In the enforcement of the customs laws of the United States, officers of the customs are authorized to search vehicles and persons, to make arrests and seizures, and to demand of any person within three miles to assist the officer in making any arrest, search or seizure that the officer is authorized to make, all subject to the statutes conferring such authority. ( 482, 507, 1581(a), 1581(f), 19 U.S.C.A.) *133
 Without so much as suggesting that such federal officer has the powers of a peace officer under California law, it does no violence to the language of former section 1881.1, Code of Civil Procedure, to hold that such officer, as to information received by him in his official capacity and bearing upon his official duties, may be accorded the testimonial privilege permitted by former section 1881.1.
 Did the Refusal to Disclose the Name of the Informer Deprive Defendants of a Material Witness?
 [5] No. The California rule as stated in People v. McShann, 50 Cal.2d 802, 808 [330 P.2d 33], is this: "A mere informer has a limited role. 'When such a person is truly an informant he simply points the finger of suspicion toward a person who has violated the law. He puts the wheels in motion which cause the defendant to be suspected and perhaps arrested, but he plays no part in the criminal act with which the defendant is later charged.' (People v. Lawrence, supra, 149 Cal.App.2d at 450 [308 P.2d 821]) His identity is ordinarily not necessary to the defendant's case, and the privilege against disclosure properly applies. When it appears from the evidence, however, that the informer is also a material witness on the issue of guilt, his identity is relevant and may be helpful to the defendant. Nondisclosure would deprive him of a fair trial. Thus, when it appears from the evidence that the informer is a material witness on the issue of guilt and the accused seeks disclosure on cross-examination, the People must either disclose his identity or incur a dismissal. (See Roviaro v. United States, supra, 353 U.S. at 61 [1 L.Ed.2d at 645, 77 S.Ct. 623].)"
 In the instant case it does not appear from the evidence that the informer was present when the packages of marijuana were put into the vehicle or at the earlier sale or delivery of the marijuana, or that he had claimed to Martin that he was such a witness or had any communication or relationship with defendants or either of them.
 People v. McShann, supra, 50 Cal.2d 802, and Roviaro v. United States, 353 U.S. 53 [1 L.Ed.2d 639, 77 S.Ct. 623], relied upon by defendants, are, therefore, clearly and easily distinguishable factually from the case at bench. In McShann it was the prosecution's theory that the unnamed informer had purchased heroin from defendant, which was then delivered to the police; and that telephone conversations overheard and electronically recorded by police were had by the informer with the defendant, the recordings of which conversations *134 were played to the jury. The defendant on his part denied having made any sale and having taken part in the conversations. In People v. Williams, 51 Cal.2d 355 [333 P.2d 19], also, the unnamed informer had been a participant in the purchase of narcotics from the defendant.
 Of Roviaro, the U.S. Supreme Court said, in McCray: "... the informer had been an active participant in the crime. He 'had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly transported the drugs as charged.' "
 In Roviaro itself the court said: "This is a case where the Government's informer was the sole participant, other than the accused, in the transaction charged. The informer was the only witness in a position to amplify or contradict the testimony of government witnesses. Moreover, a government witness testified that Doe denied knowing petitioner or ever having seen him before. We conclude that, under these circumstances, the trial court committed prejudicial error in permitting the Government to withhold the identity of its undercover employee in the face of repeated demands by the accused for his disclosure." (Roviaro v. United States, supra, 353 U.S. 53, 64-65 [1 L.Ed.2d 639, 647, 77 S.Ct. 623, 630].)
 Were the Crimes of Transportation and of Possession for Sale Separate and Distinct Offenses so as to Make Both Convictions Proper?
 [6] Yes; the crime of possession for sale may be committed without committing the crime of transporting; and while the crime of transporting cannot be committed without possession of the thing transported, such possession need not be for the purpose of sale. If the possession is only that which is incident to the transportation or sale, the possession and transportation or sale constitute a single offense; and if the transportation is only that which is incident to the sale, the result is the same. (People v. Roberts, 40 Cal.2d 483, 491 [254 P.2d 501].) The two convictions were proper. (People v. McFarland, 58 Cal.2d 748, 762 [26 Cal.Rptr. 473, 376 P.2d 449].)
 [7] However, both statutes were violated concurrently and with a single objective. There is no evidence that the possession preceded the commencement of the transportation; and the prosecution's theory was that there was concurrent possession and transportation when the contraband entered *135 California. To inflict double punishment on defendants for an indivisible course of conduct which has a single objective and which at once is violative of more than one penal statute would offend against the proscription of section 654, Penal Code.
 The imposition of sentence for two or more counts under such circumstance is reversible error if the result would be to affect the defendant's rights adversely, and would be so even though the sentences are made to run concurrently. (People v. Branch, 119 Cal.App.2d 490, 496 [260 P.2d 27].)
 [8] Here, the trial court did not seek to impose double punishment. In pronouncing judgment, he told the defendants: "It is the intention of the Court that you should serve a sentence for the greater of the two counts, that is the one that carries the greater penalty, namely, the transportation. And my intention is to so sentence you and to comply with the law of People v. Caruth, 237 Cal.App.2d 401 [47 Cal.Rptr. 29], People v. Nelson, 233 Cal.App.2d 440 [43 Cal.Rptr. 626], and People v. Alvarado, 231 Cal.App.2d 789 [42 Cal.Rptr. 310]."
 The language used in imposing sentence and staying execution on the count charging possession for sale is the same as that used in People v. Niles, 227 Cal.App.2d 749, 755 [39 Cal.Rptr. 11]. It was held in that case not to constitute double punishment. The same procedure was approved in People v. Johnson, 242 Cal.App.2d 870, 876-877 [52 Cal.Rptr. 38]. When the sentence for transportation shall have been completed, defendants will have served a term of imprisonment for only one felony.
 Judgments affirmed.
 Brown (Gerald), P. J., and Coughlin, J., concurred.
NOTES
[fn. 1]  1. Former section 1881.1, Code of Civil Procedure, superseded by section 1042, subdivision (c), Evidence Code, until January 1, 1967, read as follows: "In any preliminary hearing, criminal trial, or other criminal proceeding, for violation of any provision of Division 10 (commencing with Section 11000) of the Health and Safety Code, evidence of information communicated to a peace officer by a confidential informant, who is not a material witness to the guilt or innocence of the accused of the offense charged, shall be admissible on the issue of reasonable cause to make an arrest or search without requiring that the name or identity of the informant be disclosed if the judge or magistrate is satisfied, based upon evidence produced in open court, out of the presence of the jury, that such information was received from a reliable informant and in his discretion does not require such disclosure."