Full opinion text
OPINION AND ORDER REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT ROSEN, District Judge. I. INTRODUCTION Plaintiffs Electronic Planroom, Inc. and Essential Research, Inc. (collectively “Essential”), two Michigan corporations, commenced this action on April 21, 1999 against Defendants The McGraw-Hill Companies, Inc. (“McGraw-Hill”), a New York corporation, and Devon Shire, a Michigan resident and former employee of Essential. In an amended complaint filed on January 24, 2000, Essential asserts state-law claims of misappropriation of trade secrets, tortious interference, and civil conspiracy against both Defendants, as well as a state-law breach of fiduciary duty claim against Defendant Shire. Essential further asserts a claim against McGraw-Hill under the federal patent laws, 35 U.S.C. § 1 et seq., alleging that McGraw-Hill’s “Dodge View” software infringes Essential’s rights under U.S.Patent No. 5,625,827 (the “’827 Patent”). This Court has subject matter jurisdiction over these state and federal claims under 28 U.S.C. § 1338(a) and 28 U.S.C. § 1367(a). Defendants have asserted three counterclaims against Essential, seeking declarations of the non-infringement, invalidity, and unenforceability of the ’827 Patent. McGraw-Hill also is pursuing a claim against Third-Party Defendant G. Matthew Krause, a named inventor and former owner of the ’827 Patent, alleging that Krause failed to disclose material prior art during the prosecution of the ’827 Patent, and seeking a declaration that the patent is unenforceable as a result of this alleged inequitable conduct. By motion filed on March 1, 2000, Essential now seeks summary judgment in its favor on the issue of McGraw-Hill’s alleged infringement of claim 5 of the ’827 Patent. For their part, Defendants filed a motion on April 5, 2000, requesting an award of summary judgment in their favor on Essential’s state-law claims and on Defendants’ counterclaim asserting the invalidity of the ’827 Patent. These motions have been fully briefed by the parties, and the Court held a hearing on these motions on August 31, 2000. Having reviewed the briefs and voluminous supporting materials submitted by the parties, and having considered the arguments of counsel at the August 31 hearing, the Court is now prepared to rule on the parties’ motions. This Opinion and Order sets forth the Court’s rulings. II. FACTUAL AND PROCEDURAL BACKGROUND A. The Parties to This Action Plaintiff Essential is a small company located in Rochester, Michigan, with approximately a dozen employees at the time of the events giving rise to this litigation. Essential develops and sells “electronic planroom” technology to the construction industry, consisting of computer software and services that assist building contractors in obtaining information about available construction jobs and preparing competitive bids for these projects. At all relevant times, Third-Party Defendant G. Matthew (“Matt”) Krause has served as president of Essential. Defendant McGraw-Hill, through its F.W. Dodge subsidiary, has provided construction news services to subscribing contractors for over a century. Since 1998, McGraw-Hill has marketed and sold its “Dodge Plans” service, which permits subscribers to obtain computer-based plans and specifications for available construction jobs via CD-ROM or the Internet. The “Dodge Plans” package includes “Dodge View” software that allows subscribers to view the electronic plan and specification data made available through the “Dodge Plans” service. Defendant Devon Shire was employed as Essential’s Vice President of Sales and Marketing from October 10, 1994 through July 3, 1998. During most of this time, Shire was Essential’s entire sales force. Shire did not sign, nor was he asked to sign, a confidentiality or non-compete agreement with Essential. In July of 1998, Shire resigned his position at Essential and began working for McGraw-Hill as a Sales Specialist for the “Dodge Plans” product line. B. Essential’s ’827 Patent In connection with Essential’s development of its “electronic planroom” technology, Third-Party Defendant Matt Krause and a programmer at Essential, Brent Morrow, applied for a patent on December 23, 1994. This patent was issued on April 29, 1997 as U.S.Patent No. 5,625,827 with nine claims, and is entitled “Method and System of Blueprint Document Manipulation.” All rights to this patent subsequently were assigned to Essential. The computer-based system described in the ’827 Patent permits the viewing and manipulation of building plans, blueprints, and construction drawings. The patent sets forth a method for displaying construction drawings on a computer monitor, storing these drawings in electronic form in computer memory, and compiling scaling data that is stored along with each drawing in a single computer file. This scaling information permits a user of the system to measure distances between selected points on a drawing as it is displayed on the computer monitor, and to obtain these distances in “real world” rather than computer-based dimensions. According to Essential, this measurement capability assists in the process of preparing bids for construction projects by allowing the user to more quickly and accurately determine the time and materials needed to complete a job. Specifically, claim 1 of the ’827 Patent states as follows: 1. A method for manipulating a construction drawing comprising the steps of: a. storing in electronic form in a memory means an image of a construction drawing in a file, the construction drawing having a full scale dimension associated therewith; b. displaying the image of the construction drawing in the file on a video display means; c. storing in the file a scale quantity representing the full scale dimension between two selected scale points on the image of the construction drawing; d. storing in the file a scale line extending between the two scale points on the image of the construction drawing, the scale line representing a distance expressed as a predetermined number of image units; e. selecting any two measuring points on the image of the construction drawing; and f. automatically determining a full scale dimension between the selected two measuring points from the scale quantity, the scale line and a number of the image units between the two measuring points. (Defendants’ Motion, Ex. 41, at col. 18.) Claims 2, 3, and 4 depend on claim 1, and include such added steps as displaying on the computer monitor the “full scale dimension” calculated in step “f” of claim 1, and computing conversion factors between on-screen pixel coordinates, computer-based image units, and real-world or “full scale” dimensions. Claim 5 likewise depends on claim 1, but adds the step of computing the “full scale area dimension” of an enclosed area within a drawing as selected by the user. Finally, the remaining two claims at issue in this case, claims 7 and 9, are similar to claim 1, except that they describe methods of working with collections of construction drawings as opposed to individual drawings. C. McGraw-Hill’s “Dodge Plans” Product As noted earlier, McGraw-Hill’s subsidiary, F.W. Dodge, has for many years offered various products and services to the construction industry that enable contractors to learn the details of construction projects available for bid. For example, Dodge offers a service called “Dodge SCAN,” which provides blueprints on microfilm to subscribers. Dodge also has established “planrooms” around the country where blueprints and specifications may be reviewed and copied. However, as of the mid-1990s, Dodge did not yet offer a computer-based product that would permit contractors to rapidly obtain and conveniently view digital images of plans and blueprints on their own office and portable laptop computers. Accordingly, McGraw-Hill hired Jerry Murtaugh, a former IBM employee with a background in computer graphics, to develop a method for digital delivery of construction plans and blueprints to the contractor’s desktop. In 1995, Murtaugh identified two companies, Essential and Sierra Networks, as engaged in this digital plans business. McGraw-Hill subsequently entered into discussions with both of these companies to explore possible partnerships in developing and marketing digital plans products. During an initial September 1995 meeting between Murtaugh and Matt Krause and Devon Shire of Essential to discuss a possible partnership, Murtaugh learned that Essential was in the process of obtaining patents on its software. In addition, on June 30, 1997, Krause wrote to Larry Wares of F.W. Dodge, enclosing copies of two patents held by Essential, including the ’827 Patent. (See Plaintiffs Response, Ex. G.) Ultimately, in June of 1997, McGraw-Hill and Essential abandoned their joint venture discussions, when the parties were unable to agree on the terms of a licensing arrangement for McGraw-Hill to market Essential’s products and services. (See Defendants’ Motion, Exs. 10, 11.) Instead, in July of 1997, McGraw-Hill paid a flat fee of $25,000 to an Oregon software developer, John Ritzenthaler, to secure a license to his “Bidview” software package. (See Plaintiffs’ Response, Ex. F.) McGraw-Hill then incorporated this software into its “Dodge Plans” product as “Dodge View,” and introduced this product line into the market in early 1998. According to Essential, the “Dodge View” software unlawfully infringes its rights under the ’827 Patent by allowing users to view construction drawings on a computer monitor and associating real-world scaling data with each computer-based drawing, albeit in a separate computer file. D. Devon Shire’s Resignation from Essential and Employment with McGraw-Hill Certain of Essential’s claims in this case stem from Defendant Shire’s actions as he resigned from his sales position at Essential and assumed a similar position at McGraw-Hill. In particular, Essential alleges that Shire unlawfully took proprietary, trade secret information from Essential’s computer systems as he left, and that, in the process, he deleted certain of this data from Essential’s computers so that his former employer could no longer gain access to it. Essential further alleges that Shire and his new employer, McGraw-Hill, exploited this trade secret information to McGraw-Hill’s advantage, causing customers to cancel their contracts with Essential and switch to McGraw-Hill’s competing “Dodge Plans” product. As noted earlier, Devon Shire was hired by Essential in October of 1994 as Vice President of Sales and Marketing, and remained in this job until July 3, 1998. During this time, Shire was the principal— and, indeed, often sole — member of Essential’s sales force. In this role, he had regular contact with Essential’s current and prospective customers, as he sought to sell subscriptions to the company’s electronic blueprint and specification delivery service, the “Electronic Planroom.” At no time, however, was Shire asked to sign a confidentiality or non-compete agreement. To assist in his sales efforts, Shire used “Alpha IV” database software he had purchased in 1992, prior to his employment with Essential, to track his daily sales activities, record business expenses, and maintain a personal daily journal. Shire maintained this database on his desktop computer at work, and occasionally used “Laplink” software to transfer this sales information to his personal laptop computer. Shire also kept a database of “leads” (¿<?., prospective customers) using the Alpha IV software. Certain of these leads came from Essential’s advertising efforts, and from business cards obtained by Shire or other Essential employees at trade shows or seminars. Shire obtained other sales leads through Essential’s affiliation with two Michigan trade groups, the Construction Association of Michigan (“CAM”) and the Grand Rapids Builders Exchange (“BEX”). Shire also used the commercially available “Pagemaker” software program to develop sales materials such as marketing flyers and customer subscription forms. As with the Alpha IV software, Shire apparently used a version of Pagemaker that he had obtained on his own, and not through his employer. In early 1998, Shire began seeking new employment opportunities. As part of this effort, he spoke to an F.W. Dodge employee, Robert Singerline, about opportunities with Dodge. This initial contact led to several meetings with various Dodge employees over the next few months, during which Dodge demonstrated its “Dodge Plans” product to Shire, and Shire in turn volunteered that he maintained a database of customer leads. These discussions culminated in a June 29, 1998 offer for Shire to work as a “Sales Specialist” for the “Dodge Plans” product line. Shire accepted this offer the next day, and began working for McGraw-Hill on July 7, 1998. As his employment with Essential wound down, Shire took a number of unusual steps to either delete or secure personal copies of data he had accumulated on his desktop computer during the course of his employment. Specifically, upon investigating Shire’s computer after his departure, Essential learned that the customer lead database previously maintained by Shire on that computer had been deleted, along with many other files. Essential also discovered that Shire had created two “zipped” (i.e., compressed) files on his computer’s hard drive: (1) PAGE-MAKE.ZIP, a compilation of Shire’s various files created using the Pagemaker software; and (2) BBSUSER.ZIP, a compressed copy of the “BBSUSER” database used by Essential in connection with an on-line “bulletin board” system offered to Essential’s customers. Shire apparently sent these compressed files to himself as attachments to electronic mail messages, and then accessed his electronic mailbox remotely from his home a short time later. Upon securing copies of these “zipped” files on his home computer, Shire deleted these files from his office computer, and defragmented the computer’s hard drive. Finally, Matt Krause of Essential testified that Shire was given a prototype version of the company’s “Takeoff’ software in June of 1998, and that Shire failed to return this software upon resigning from Essential. (Defendants’ Motion, Ex. 5, Krause Dep. at 87-92.) Shire also was less than forthcoming in divulging his plan to resign his position at Essential and begin working at McGraw-Hill. According to Essential’s president, Matt Krause, Shire met with him on a few occasions in June and early July of 1998 to discuss Essential’s plans and strategies regarding McGraw-Hill and the “Dodge Plans” product, (Plaintiffs’ Response, Ex. 1, Krause Aff. at ¶¶ 21-22), without disclosing that he had accepted a position with McGraw-Hill. Similarly, Brent Morrow, an Essential programmer, testified at his deposition that Shire contacted him shortly before he resigned to inquire about Essential’s patents, and to ask how far Essential might go to defend those patents. (Defendants’ Motion, Ex. 46, Morrow Dep. at 162-65.) On Monday, July 6, 1998, Shire gave Essential its first notice that he was resigning, effective July 3, 1998, and stated that he was going to work for a credit bureau. At his deposition, Shire testified that “[i]t just was quite frankly none of their business, so I made up a story.” (Defendants’ Motion, Ex. 1, Shire Dep. at 409.) Immediately upon commencing his employment with McGraw-Hill, Shire began accompanying salespeople on their customer calls to assist in presenting the “Dodge Plans” product. Indeed, on July 8, 1998, just two days after he resigned from Essential, Shire accompanied a Dodge salesperson, Tom Burnosky, as he visited Stafford Insulation in Wyoming, Michigan, an existing customer of both Essential and McGraw-Hill. Shire testified that he did not arrange these sales calls or attend them at his own initiative, but instead was “at the[ ] disposal” of Dodge’s sales representatives, provided support for them, and accompanied them on sales calls at their request. (Defendants’ Motion, Ex. 1, Shire Dep. at 105-06,112-13.) McGraw-Hill’s sales of its “Dodge Plans” product improved immediately after Shire joined the company. (Defendants’ Motion, Ex. 12, Reeves Dep. at 148-49.) McGraw-Hill’s national sales manager for “Dodge Plans,” Michael Reeves, testified that “sales improved immediately,” and that Shire’s “ability to teach the sales rep how to sell the product had an immediate impact.” (Id. at 149.) In contrast, Essential’s sales performance “decreased substantially” following Shire’s departure in July of 1998, and 19 customers canceled their subscriptions to Essential’s services during the first three months after Shire’s resignation. (Plaintiffs’ Response, Ex. 1, Krause Aff. at ¶ 26.) Stafford Insulation, for one, terminated its subscription to Essential’s “Electronic Planroom” service within a few weeks after Shire joined McGraw-Hill, and elected to use the new “Dodge Plans” service. (Defendants’ Motion, Ex. 15, Welch Aff. at ¶¶ 14-15.) E. Procedural Background Essential brought the present suit in this Court on April 21, 1999. The initial complaint alleged that Defendants infringed Essential’s patent and trademark rights, misappropriated trade secrets, tor-tiously interfered with contracts and business relationships, and civilly conspired against Essential. On May 28, 1999, Defendants filed their answer and asserted several counterclaims against Essential, primarily seeking declarations of the non-infringement, invalidity, and unenforceabil-' ity of the ’827 Patent. By stipulated order entered on September 2, 1999, the Court dismissed certain portions of the complaint and counterclaims relating to trademark infringement. On January 24, 2000, Essential filed hn amended complaint implementing the parties’ agreement as embodied in the September 2 stipulated order, and Defendants filed an amended answer and counterclaims on January 31, 2000. Finally, on January 21, 2000, Defendants filed a third-party complaint against Matt Krause, joining him as a party to their claim of patent unenforceability. Essential brought its present motion for summary judgment on March 1, 2000, asserting that, as a matter of law, McGraw-Hill’s “Dodge View” software infringes claim 5 of the ’827 Patent. Defendants filed their cross-motion on April 5, 2000, seeking summary judgment in their favor on Essential’s state-law claims and on their counterclaim of patent invalidity. The Court heard argument on these motions on August 31, 2000. III. ANALYSIS A. The Standards Governing the Parties’ Motions Through their present motions, both Essential and Defendants seeks summary judgment in their favor pursuant to Fed. R.Civ.P. 56. Under this Rule, summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Three 1986 Supreme Court cases — Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) — ushered in a “new era” in the federal courts’ review of motions for summary judgment. These cases, in the aggregate, lowered the mov-ant’s burden in seeking summary judgment. As stated in Celotex: In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. After reviewing the above trilogy of cases, the Sixth Circuit adopted a series of principles governing motions for summary judgment. These principles include: * The movant must meet the initial burden of showing “the absence of a genuine issue of material fact” as to an essential element of the non-movant’s case. This burden may be met by pointing out to the court that the respondent, having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case. * The respondent cannot rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact, but must “present affirmative evidence in order to defeat a properly supported motion for summary judgment.” * The trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact. * The trial court has more discretion than in the “old era” in evaluating the respondent’s evidence. The respondent must “do more than simply show that there is some metaphysical doubt as to the material facts.” Further, “[wjhere the record taken as a whole could not lead a rational trier of fact to find” for the respondent, the motion should be granted. The trial court has at least some discretion to determine whether the respondent’s claim is plausible. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.1989); see also Nernberg v. Pearce, 35 F.3d 247, 249 (6th Cir.1994). The Court will apply these standards in resolving the parties’ motions for summary judgment. B. The Admissibility of Various Affidavits Before turning to the merits of the parties’ motions, the Court first must address the evidentiary challenges mounted by the parties against certain affidavits submitted in support of or opposition to these motions. These evidentiary disputes arise principally from the recent death of Defendant Devon Shire, whose affidavit is submitted in support of Defendants’ motion, and whose alleged statements are referred to in other affidavits. For instance, in its response to Defendants’ motion, Essential argues that Shire’s affidavit is not admissible, and tersely cites Federal Rules of Evidence 803 and 804 in support of this position. For their part, Defendants argue that Shire’s affidavit should be admitted under the residual exception to the rule against hearsay, see Fed.R.Evid. 807, but that the affidavits of other individuals contain inadmissible hearsay, to the extent that they include statements attributed to Shire. In addition to the hearsay concerns identified by the parties, these affidavits also implicate Michigan’s so-called “dead man’s” statute, Mich.Comp.Laws § 600.2166, as well as the often elusive distinction between “procedural” and “substantive” law. This statute provides, in relevant part: (1) In an action by or against a person incapable of testifying, a party’s own testimony shall not be admissible as to any matter which, if true, must have been equally within the knowledge of the person incapable of testifying, unless some material portion of his testimony is supported by some other material evidence tending to corroborate his claim. (2) A “person incapable of testifying” includes an individual who is incapable of testifying by reason of death.... (3) In any such actions, all entries, memoranda, and declarations by the individual so incapable of testifying, relevant to the matter, as well as evidence of his acts and habits of dealing tending to disprove or show the improbability of the claims of the adverse party, may be received in evidence. (4)When the deposition, affidavit, or testimony of a person incapable of testifying is taken in his lifetime ..., and is read in evidence in the action, the affidavit or testimony of the other party shall be admitted in his own behalf on all matters mentioned or covered in the deposition, affidavit, or testimony. Mich.Comp.Laws § 600.2166. While the parties have not agreed on much in this litigation, they apparently agree that this Michigan statute has been abrogated through the Michigan Supreme Court’s 1978 adoption of Michigan Rule of Evidence 601, which provides: Unless the court finds after questioning a person that the person does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably, every person is competent to be a witness except as otherwise provided in these rules. Although the case law on this precise question is neither extensive nor particularly recent, it uniformly holds that the dead man’s statute was superseded by Michigan’s Rule 601. See, e.g., Morgan v. Stanley Works, 857 F.2d 1475, 1988 WL 96582, at *5-*6 (6th Cir. Sept.16, 1988) (unpublished); Turbyfill v. International Harvester Co., 486 F.Supp. 232, 235-36 (E.D.Mich.1980); Dahn v. Sheets, 104 Mich.App. 584, 305 N.W.2d 547, 549 (1981). Despite this seeming unanimity among the parties and the precedents, a recent decision by Michigan’s highest court suggests, albeit only indirectly, that Michigan’s dead man’s statute might retain its vitality after all. In particular, in McDougall v. Schanz, 461 Mich. 15, 597 N.W.2d 148 (1999), the Michigan Supreme Court announced a new set of principles for determining whether the Michigan Rules of Evidence abrogate legislative enactments with evidentiary effects. McDougall involved a conflict between Michigan Rule of Evidence 702, which governs the admissibility of expert testimony generally, and a Michigan statute, Mich.Comp.Laws § 600.2169, which establishes particular requirements for the admission of expert testimony in medical malpractice suits. The Court held that the statute was an enactment of substantive law, and that, as such, it did not impermissibly usurp the Court’s authority under the state constitution to promulgate rules governing practice and procedure in Michigan courts. The Court’s reasoning and rulings in McDougall have clear implications to the question now before this Court. Despite the “clear[ ] conflict” between Rule 702 and § 2169, and despite the fact that the statute “undoubtedly acts as a rule of evidence,” the Court found that the statute’s substantive scope brought it outside the judiciary’s exclusive authority to make procedural rules concerning the “orderly dispatch of judicial business.” 461 Mich, at 25-36, 597 N.W.2d at 153-59 (internal quotations and citation omitted). More generally, the Court held that a “statutory rule of evidence” must yield to the judiciary’s rulemaking authority “only when no clear legislative policy reflecting considerations other than judicial dispatch of litigation can be identified.” 461 Mich, at 30, 597 N.W.2d at 156 (internal quotations and citation omitted). Applying this standard to the statute at issue, the Court found that “ § 2169 is an enactment of substantive law,” reflecting “wide-ranging and substantial policy considerations relating to medical malpractice actions against specialists,” and that, consequently, the statute did not invade the exclusive province of the judiciary by addressing “the mere dispatch of judicial business.” 461 Mich, at 35, 597 N.W.2d at 158. Much the same can be said here with respect to § 2166, the dead man’s statute. This clearly is a statutory rule of evidence, governing the admissibility of testimony and other evidence derived from or concerning a “person incapable of testifying.” Yet, just as clearly, the dead man’s statute reflects a legislative policy judgment that witnesses should not be permitted to “l[ie] about the dead when the dead are no longer present to answer.” Hudson v. Hudson, 363 Mich. 23, 108 N.W.2d 902, 906 (1961). This concern seemingly extends beyond the “mere dispatch of judicial business,” McDougall, 461 Mich. at 35, 597 N.W.2d at 158, and thereby renders § 2166 an enactment of substantive law which is not abrogated by the conflicting Michigan Rule of Evidence 601. Assuming, then, that the dead man’s statute is applicable here, its express terms dictate that “all entries, memoranda, and declarations by [Defendant Devon Shire], relevant to the matter, as well as evidence of his acts and habits of dealing tending to disprove or show the improbability of the claims of the adverse party, may be received in evidence.” Mich. Comp.Laws § 600.2166(3). Thus, Shire’s affidavit would be admissible, as would his deposition testimony bearing on “the claims of the adverse party,” Essential. In turn, having admitted this evidence, the statute requires that “the affidavit or testimony of the other party shall be admitted in his own behalf on all matters mentioned or covered in the [decedent’s] deposition, affidavit, or testimony.” Mich.Comp.Laws § 600.2166(4). This provision, then, would permit the introduction of statements by, for example, Matt Krause (as an agent of Essential, see Mich.Comp.Laws § 600.2166(2)) concerning “all matters mentioned or covered in” Shire’s deposition or affidavit. Finally, because the dead man’s statute reaches only the testimony of the decedent and the “other party,” and not independent third parties, see Serkaian v. Ozar, 49 Mich.App. 20, 211 N.W.2d 237, 240 (1973), it apparently would not exclude third party submissions — such as the affidavit of Brian Co-lando, submitted as an exhibit to Essential’s response in opposition to Defendants’ motion — recounting statements allegedly made by Shire. To be sure, as noted earlier, the parties’ evidentiary challenges are not resolvable solely by resort to Michigan’s dead man’s statute, but also implicate the general rule against the admission of hearsay. Yet, to the extent that Shire’s own statements are offered against him, they are deemed “not hearsay” under the Federal Rules of Evidence. See Fed.R.Evid. 801(d)(2)(A). Moreover, the Federal Rule governing summary judgment contemplates a certain degree of reliance on hearsay, as it permits parties to submit “supporting affidavits,” as well as other out-of-court statements such as “depositions, answers to interrogatories, and admissions.” Fed. R.Civ.P. 56(a)-(c). Rule 56 further requires that any supporting affidavits must “set forth such facts as would be admissible in evidence,” Fed.R.Civ.P. 56(e); see also U.S. Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1189 (6th Cir.1997), but the dead man’s statute, in combination with the various exceptions to the hearsay rule, see, e.g., Fed.R.Evid. 804(b)(1) (permitting the introduction of the prior deposition testimony of a declar-ant who is “unavailable as a witness” at trial); Fed.R.Evid. 807 (residual exception), might assist in particular instances in satisfying this requirement. In short, the parties’ evidentiary challenges implicate issues far beyond the shorthand claims of “hearsay” presented in their briefs. Rather, it is necessary, on a case-by-case basis, to first determine whether the dead man’s statute requires the admission or exclusion of the evidence in question on competency grounds. Then, assuming the evidence in question is not excluded by the dead man’s statute, it is necessary to consider whether a hearsay exception might bridge the gap left by Devon Shire’s unavailability to testify at trial. Fortunately, under the particular circumstances presented here, the Court need not painstakingly analyze each piece of evidence relating to Devon Shire to determine how it fits into the above rubric. First, upon reviewing the various affidavits submitted by the parties in support of them respective positions, the Court finds that little, if any, of their content contributes anything to the present inquiry. Significantly, all of the key players have been extensively deposed, including Devon Shire. To the extent that the affidavits merely confirm this deposition testimony, they are superfluous and may be disregarded. Further, “[a] party may not create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts [his] earlier deposition testimony.” Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir.1986). Next, as discussed at length below, it is the absence of necessary evidence that is largely determinative of the present motions. Specifically, most of Essential’s state-law claims founder for lack of evidence as to one or more key elements, particularly as to the alleged conduct of Defendant McGraw-Hill. Plainly, the evi-dentiary exclusions sought by Essential, even if sustained by this Court, cannot assist in overcoming this obstacle. Accordingly, the Court largely may leave for another day such interesting questions as the continuing vitality of Michigan’s dead man’s statute and the possible applicability of the residual exception to the hearsay rule. C. Essential’s State-Law Claim of Misappropriation of Trade Secrets Essential has asserted a number of state-law claims arising from Defendant Devon Shire’s resignation from Essential and his commencement of employment with McGraw-Hill. In Count V of the amended complaint, Essential alleges that Shire and McGraw-Hill unlawfully misappropriated Essential’s proprietary, trade secret information in an effort to sell the “Dodge Plans” product to Essential’s current and prospective customers. As one of the grounds advanced in their motion for summary judgment, Defendants argue that Essential lacks evidentiary support for each and every element of this common-law misappropriation claim. The Court cannot accept this contention in its entirety, but agrees that the evidentiary record is lacking with respect to at least one necessary element of Essential’s claim: namely, that Defendants must have used the trade secret in question. The parties agree that, under Michigan law, a common-law claim of trade secret misappropriation includes three elements: (1) the existence of a trade secret; (2) its acquisition in confidence; and (8) the defendant’s unauthorized use of it. Aerospace America, Inc. v. Abatement Technologies, Inc., 738 F.Supp. 1061, 1069 (E.D.Mich.1990). Defendants argue that the first of these elements is not satisfied here, because the information taken by Devon Shire when he left Essential was either publicly available or not maintained in confidence by Essential. The Court, however, cannot subscribe to this view of the evidentiary record. As discussed earlier, Shire evidently took four types of information with him when he left Essential: (1) his database of customer leads; (2) the PAGEMAKE.ZIP file, consisting of various documents Shire had created using the Pagemaker software; (3) the BBSUSER.ZIP file, a compressed version of Essential’s BBSUSER database kept in connection with its on-line bulletin board service; and (4) a prototype version of an Essential software program. As to the first of these, Defendants contend that Essential cannot claim Shire’s database of leads as a company secret, because Shire purportedly acquired and kept this information of his own volition, and not at the behest of his employer, and because Essential never took any steps to protect the database as containing proprietary company information. In support of this argument, Defendants point to Hayes-Albion v. Kuberski, 421 Mich. 170, 364 N.W.2d 609, 615 (1984), in which the Michigan Supreme Court declined to extend trade secret protection to a “personal memo book” of customer names and addresses kept by the defendant, the former chief engineer of the plaintiff corporation, as part of his standard practice in performing his job. More generally, the Court noted that “there is nothing improper in an employee establishing his own business and communicating with customers for whom he had formerly done work in his previous employment.” 364 N.W.2d at 615 (footnote with citation omitted). As Essential points out, this comparison to the “personal memo book” in Hayes-Albion is both factually and legally inapt. First, Defendants overlook evidence in the record suggesting that Essential did, in fact, instruct Shire to maintain a database of customer leads, and that other employees could gain access to this information only on a “need-to-know” basis. (Plaintiffs’ Response, Ex. 1, Krause Aff. at ¶ 9.) Matt Krause of Essential further states that the customer lead information obtained from the CAM trade group was protected by a confidentiality agreement between CAM and Essential, and that Shire was advised of this agreement and cautioned to preserve the secrecy of this information. (Id. at ¶¶ 8, 10.) Moreover, Essential notes that the information contained in the customer lead database extends beyond the mere “names and addresses” kept in the employee’s personal memo book in Hayes-Albion, and included summaries of Shire’s conversations with customers, various customer information such as number of employees and dollar volume, and narrative entries recounting the topics discussed during Shire’s customer visits. More generally, the Court cannot accept Defendants’ apparent interpretation of Hayes-Albion as affording no protection to customer lists whenever an employee compiles this information in a purportedly “personal” notebook. Rather, as stated in Hayes-Albion, the principal inquiry is whether Essential, through its employee-agents, has obtained and used the information in question in an effort to gain “an advantage over competitors who do not know or use it.” Hayes-Albion, 364 N.W.2d at 614 (quoting Restatement of Torts § 757, cmt. b). Customer lists are not per se disqualified from treatment as trade secrets under this test, as Hayes-Albion itself expressly recognizes. 364 N.W.2d at 614. Rather, in an earlier case discussed in Hayes-Albion, the Michigan Supreme Court had explained that customer information, like other information learned by an employee during the course of his job, may be subject to trade secret protection: While an employee is entitled to the unrestricted use of general information acquired during the course of his employment or information generally known in the trade or readily ascertainable, confidential information, including information regarding customers, constitutes property of the employer and may be protected by contract. Even in the absence of a contract, an employee has a duty not to use or disclose confidential information acquired in the course of his employment. Such information is often treated as a “trade secret.” Follmer, Rudzewicz & Co. v. Kosco, 420 Mich. 394, 362 N.W.2d 676, 680-81 (1984) (footnotes omitted). Similarly, Hayes-Albion distinguishes between bare names and addresses of customers and information regarding “the peculiar needs of particular clients,” which “increased [the defendant’s] ability to compete with [the plaintiff, his former employer].” Hayes-Albion, 364 N.W.2d at 615; see also Chem-Trend Inc. v. McCarthy, 780 F.Supp. 458, 461 (E.D.Mich.1991) (noting that the defendant salesperson had acquired “more extensive knowledge” than just the mere identities of customers, such as their particular needs and the pricing strategies employed by the plaintiff company to obtain and retain its customers). Applying these standards to the customer leads database kept by Shire during his employment with Essential, the Court finds that Essential has raised issues of fact as to whether this database contained trade secret information regarding the identities of Essential’s customers and additional “peculiar needs” and other customer-specific details that Shire might have learned during his client dealings and visits on Essential’s behalf. Regarding the Pagemaker files and the BBSUSER database, the Court agrees with Defendants that the evidentia-ry record contains little support for the proposition that these files contained trade secret information. The documents created by Shire using Pagemaker apparently consist largely of templates and forms which were regularly distributed to customers and used in product marketing, and therefore are ineligible for trade secret protection. See Rainbow Nails Enters., Inc. v. Maybelline, Inc., 93 F.Supp.2d 808, 827 (E.D.Mich.2000); Aerospace America, 738 F.Supp. at 1070; Rubik, Inc. v. Hull, 56 Mich.App. 335, 224 N.W.2d 80, 92 (1974). The BBSUSER database consists largely of customer identification information which, standing alone, might not be eligible for trade secret protection if it could be learned from other sources. However, Essential offers the testimony of Matt Krause that portions of the PAGEMAKE.ZIP and BBSUSER.ZIP files contain internal sales methodologies and customer-specific information beyond bare identification, such as the amounts paid for services and the expiration dates of their subscriptions. (See Defendants’ Motion, Ex. 5, Krause Dep. at 43, 56, 66-67, 86-87.) This testimony is sufficient to raise issues of fact as to whether these files are subject to trade secret protection. Finally, there would seem to be little doubt that the prototype software allegedly taken by Shire is entitled to some degree of trade secret protection, as it had not yet been released to the public. (Id. at 87-89.) The next element of Essential’s claim of misappropriation of trade secrets is acquisition in confidence by the defendant. This element requires that a confidential relationship must have existed between the parties. Aerospace America, 738 F.Supp. at 1070. Such a relationship may be established through a written non-disclosure agreement, Aerospace America, 738 F.Supp. at 1071, but Essential concedes that it obtained no such agreement from Shire. Alternatively, the requisite confidential relationship may be implied by law, under circumstances giving rise to fiduciary duties or obligations of confidentiality as between the parties. 738 F.Supp. at 1071. Defendants argue that an employer/employee relationship, standing alone, does not give rise to obligations of confidentiality. To be sure, the case law speaks of an additional requirement that “there be an explicit, at least verbal, warning that the information disclosed is confidential and/or not to be disclosed or used without authorization.” Aerospace America, 738 F.Supp. at 1071. Yet, while Defendants deny that any such warning was given, Essential points to the affidavit of Matt Krause stating just the opposite. This purported warning, combined with the parties’ employer/employee relationship, suffices to raise issues of fact as to the “acquired in confidence” element of Essential’s misappropriation claim. See Aerospace America, 738 F.Supp. at 1071; Kubik, 224 N.W.2d at 92; see also Chem-Trend, 780 F.Supp. at 460 (finding that fiduciary duties existed between the plaintiff employer and the defendant salesperson while the defendant remained in the plaintiffs employ). Nevertheless, the fact that Shire might well have taken trade secret information, and that he might have acquired this information in confidence, is unavailing to Essential absent evidence that Shire and McGraw-Hill actually used this information. See Rainbow Nails, 93 F.Supp.2d at 831. Essential seeks to satisfy this element of its misappropriation claim by pointing to: (1) Shire’s surreptitious and destructive acts in copying and deleting information from Essential’s computers; (2) Shire’s disclosure to McGraw-Hill during an interview that he maintained a database of customer leads; (3) Shire’s immediate participation in sales calls as soon as he arrived at McGraw-Hill; and (4) Essential’s slumping sales performance and loss of clients following Shire’s resignation. The Court, however, finds that this evidence, whether viewed separately or in combination, simply is not sufficient to create a genuine issue of fact as to Defendants’ use of Essential’s trade secrets. First, as to Shire’s deletion and copying of information from Essential’s computers and his disclosure to McGraw-Hill of the existence of a customer lead database, these actions reflect, at most, Shire’s judgment that this information might be of use during his employment with McGraw-Hill. If so, there is no evidence that Shire’s prediction came true. To the contrary, Michael Reeves of McGraw-Hill testified that he was not interested in the customer lead database mentioned by Shire during his interview. Defendants also have offered unrefuted testimony that McGraw-Hill’s existing sales force made the decisions on which customers to visit and when, while Shire merely accompanied salespeople on calls at their request. In shoit, while Shire plainly put himself in a position to exploit the information he brought with him from Essential, there is absolutely nothing in the record to indicate that he actually put this information to use at McGraw-Hill, nor that any of his new employer’s sales efforts were altered or affected in any way in light of this information. Moreover, Shire’s participation in McGraw-Hill’s customer visits and Essential’s lagging sales and loss of clients do not serve as evidence of Defendants’ improper use of Essential’s trade secrets. Only rank speculation could forge the necessary link between these events and the trade secret information allegedly taken by Shire. For example, under the present evidentiary record, it is entirely possible that Shire was asked to accompany McGraw-Hill’s salespeople on their customer visits, and that these sales calls produced some successes, not because of any proprietary information acquired and used by Shire, but because of his superior sales skills and his greater familiarity with computer-based systems for viewing and manipulating construction drawings and blueprints, gleaned from his years of selling Essential’s “electronic planroom” product. Essential cannot claim a proprietary or trade secret interest with respect to either of these latter two skills, and Shire was free to use them in his new job. The Court does not mean to suggest that this scenario is the correct one, or that Essential’s suspicions of unlawful use are completely mistaken. These suspicions, however, are just that, unsupported by any record evidence, and the Court finds no basis for submitting them to the jury so that the factfinder can make the conjectural leap advocated by Essential. Similarly, Essential offers nothing beyond speculation as to the purported connection between Shire’s removal of trade secret information and his former employer’s declining sales and loss of customers. Again, the Court can readily identify at least three “innocent” explanations for these events. First, Shire’s skill as a salesperson could have produced this result, quite apart from any trade secret information he took from Essential. Next, given McGraw-Hill’s well-established and national presence in the construction news industry, and its recent introduction of a computer-based electronic plans and specifications service, it is possible that at least some customers defected from Essential to McGraw-Hill based on their longstanding and pre-existing relationships with McGraw-Hill. In fact, at least one customer, Stafford Insulation, apparently switched from Essential to McGraw-Hill for this reason, among others. (See Defendants’ Motion, Ex. 15, Welch Aff. at ¶¶ 16-17.) Finally, some customers might have switched to the recently-unveiled “Dodge Plans” service upon deciding that it was a better product than Essential’s. (See id. at ¶ 15.) In short, the Court declines Essential’s invitation to let the jury decide which of these possible scenarios is the correct one. The Court may do so only if there is evidence from which the jury could infer Defendants’ use of Essential’s trade secrets. Because the evidentiary record is wholly lacking as to this element of Essential’s misappropriation claim, the Court finds that Defendants are entitled to summary judgment in their favor on this claim. D. Essential’s State-Law Claims of Tor-tious Interference In Counts VII and VIII of its amended complaint, Essential asserts state-law claims of tortious interference with contracts and tortious interference with advantageous business relationships and prospective economic advantage. In their motion for summary judgment, Defendants argue that Essential has failed to produce evidence in support of two elements of these claims: (1) an improper act by Defendants, and (2) a causal link between this act and the termination of a business relationship between Essential and a current or prospective customer. For many of the same reasons discussed above with regard to Essential’s misappropriation claim, the Court agrees that the evidentiary record is wholly lacking with respect to the second of these two elements. Under Michigan law, the elements of a tortious interference claim are: (1) a contract, business relationship, or expectancy with a third party; (2) the defendant’s knowledge of this contract, relationship, or expectancy; (3) an intentional and improper interference by the defendant causing a breach, disruption, or termination; and (4) damage to the plaintiff. Liberty Heating & Cooling, Inc. v. Builders Square, Inc., 788 F.Supp. 1438, 1447 (E.D.Mich.1992). Leaving aside the question whether Defendants acted improperly, or whether they instead merely engaged in lawful competition, Essential must show that these actions caused the disruption or termination of a relationship with an existing customer or foiled an anticipated relationship with a prospective customer. Once again, Essential attempts to satisfy this evidentiary burden by pointing solely to McGraw-Hill’s improved sales performance and Essential’s loss of sales and customers just after Shire left Essential and began working for McGraw-Hill. As discussed earlier, however, these bare facts, standing alone, do not establish the requisite causal connection. Rather, Essential must produce sufficient evidence from which a jury could reasonably infer that these events were not mere coincidences or attributable to lawful competition, but instead were brought about by Defendants’ improper conduct. As with Essential’s misappropriation claim, the Court cannot allow the factfinder to engage in idle speculation untethered to the evidentiary record. Yet, Essential has not produced any evidence from which the jury could determine which of the possible explanations of the parties’ changes in relative sales performance is the correct one. Accordingly, Defendants are entitled to summary judgment in their favor on Essential’s tortious interference claims. E. Essential’s State-Law Claim of Breach of Fiduciary Duty In its next state-law claim, Essential asserts that Defendant Devon Shire breached his fiduciary duties to Essential by taking its proprietary trade secret information, deleting information from Essential’s computers, and exploiting the allegedly stolen information to his own and McGraw-Hill’s advantage. In seeking summary judgment in their favor on this claim, Defendants offer only the coneluso-ry assertion that this claim must succeed or fail along with Essential’s claim of trade secret misappropriation. The Court fails to see why this is so. For example, even assuming the information taken by Shire when he left Essential does not rise to the level of trade secrets—• a proposition the Court already has declined to accept as a matter of law-—Shire did more than just take information, he also allegedly destroyed it. Defendants do not deny that Shire owed fiduciary duties to Essential while he remained in the company’s employ, and the case law confirms this point. See Chem-Trend, 780 F.Supp. at 460. Therefore, Essential is entitled to recover for any losses they suffered as a result of Shire’s actions, such as his purported deletion of company computer files, while he remained an employee of Essential. The Court cannot agree, however, with Essential’s further claim that McGraw-Hill should share in this liability. Rather, as Essential acknowledges, McGraw-Hill must have “knowingly participated” in Shire’s alleged breaches of fiduciary duties in order to charge the company with liability. Hayes-Albion, 364 N.W.2d at 617. Essential has failed to produce any evidence of such knowing participation, and thus cannot recover from McGraw-Hill on its breach of fiduciary duty claim. F. Essential’s Federal Claim of Patent Infringement The Court turns next to Essential’s sole federal claim, that McGraw-Hill infringed its rights under the ’827 Patent by “making, using, offering to sell and selling the ‘Dodge Plans’ software.” (Amended Complaint at ¶ 23.) In its motion for summary judgment, Essential seeks a determination as a matter of law that McGraw-Hill's software infringes claim 5 of the ’827 Patent, either literally or under the doctrine of equivalents. McGraw-Hill opposes Essential’s motion, and also argues in its own motion for summary judgment that the asserted claims of the ’827 Patent — specifically, claims 1 through 5, 7, and 9 — are invalid as a matter of law, on the alternative grounds of anticipation and obviousness. Upon thorough consideration of this matter, the Court concludes that the asserted claims of the ’827 Patent are invalid for obviousness. It follows that the Court need not reach the other issues raised in the parties’ motions. 1. The Standards Governing the Obviousness Inquiry Section 103 of the Patent Act prohibits the patenting of an “obvious” invention. This section provides, in relevant part: A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. 35 U.S.C. § 103(a). “It is black letter law that the ultimate question of obviousness is a question of law.” Richardson-Vicks Inc. v. Upjohn Co., 122 F.3d 1476, 1479 (Fed.Cir.1997); see also Relume Corp. v. Dia light Corp., 63 F.Supp.2d 788, 817 (E.D.Mich.1999). There are, however, factual issues underlying the obviousness inquiry. See Richardson-Vicks, 122 F.3d at 1479; Relume Corp., 63 F.Supp.2d at 817-18. The relevant considerations were announced by the Supreme Court over thirty years ago: Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobvi-ousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness, these inquiries may have relevancy. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 694, 15 L.Ed.2d 545 (1966). Because a patent and its claims are presumed valid, see 35 U.S.C. § 282, the party challenging a patent — in this case, McGraw-Hill — must establish the facts supporting a determination of invalidity by clear and convincing evidence. See Richardson-Vicks, 122 F.3d at 1480. Under § 103, the central inquiry is “whether the combined teachings of the prior art, taken as a whole, would have rendered the claimed invention obvious to one of ordinary skill in the art.” In re Napier, 55 F.3d 610, 613 (Fed.Cir.1995); see also Indian Head Indus., Inc. v. Ted Smith Equipment Co., 859 F.Supp. 1095, 1099 (E.D.Mich.1994). In conducting this inquiry, however, the Court must take care not to engage in “hindsight recreation” of the subject patent from the prior art. Al-Site Corp. v. VSI Int’l, Inc., 174 F.3d 1308, 1325 (Fed.Cir.1999). Rather, there must be “some motivation or suggestion to combine the prior art teachings,” either in the prior art itself, or by reasonable inference from the nature of the problem or from the knowledge of those of ordinary skill in the art. Al-Site Corp., 174 F.3d at 1324; see also Motorola, Inc. v. Interdigital Technology Corp., 121 F.3d 1461, 1472 (Fed.Cir.1997). Moreover, the Court must perform its inquiry from the vantage point of the “time of the invention.” Indian Head Indus., 859 F.Supp. at 1099. 2. The Relevant Prior Art Under the first element of the Graham test for obviousness, the Court must determine the scope and content of the prior art. The relevant prior art “consists of those references reasonably pertinent to the particular problem with which the inventor was involved,” and “necessarily encompasses not only the field of the inventor’s endeavor but also any analogous arts.” Relume Corp., 63 F.Supp.2d at 818 (internal quotations and citations omitted). In this case, McGraw-Hill relies primarily on two references from the prior art: (1) the “Source View” software program developed and sold by Dataware Electronics; and (2) Patent No. 5,526,520 (the “ ’520 Patent”), which Matt Krause of Essential applied for as sole inventor on September 21, 1993, over a year before he and Brent Morrow submitted their application for the ’827 Patent. As explained below, the Court agrees that both of these references qualify as prior art. a. The ’520 Patent Taking the latter reference first, McGraw-Hill argues that the ’520 Patent is prior art to the ’827 Patent under 35 U.S.C. § 102(e), which provides that a patent may not issue for an invention which was “described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent.” Although this provision purports to address only questions of priority as between two applicants claiming the same invention, the Supreme Court has long since confirmed that it also applies in determining the relevant universe of prior art as part of a § 103 obviousness inquiry. See Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, 255-56, 86 S.Ct. 335, 337-38, 15 L.Ed.2d 304 (1965). Moreover, as McGraw-Hill points out, the courts have held that the “patent by another” requirement of § 102(e) is satisfied “where the inventive entity listed on a prior art patent overlaps with the inventive entity listed on a later patent, but is not identical to the latter entity.” Purdue Pharma L.P. v. Boehringer Ingelheim GmbH, 98 F.Supp.2d 362, 380 (S.D.N.Y.2000), aff'd, 237 F.3d 1359 (Fed.Cir.2001); see also In re Land, 54 C.C.P.A. 806, 368 F.2d 866, 879-81 (C.C.P.A.1966). Because the ’520 and ’827 Patents list overlapping but not identical “inventive entities”—ie., Krause only on the former, Krause and Morrow on the latter-—and because Essential has faded to produce any evidence that the invention disclosed in the ’827 Patent might predate the September 21, 1993 filing date for the ’520 Patent, McGraw-Hill asserts that the ’520 Patent qualifies as prior art under § 102(e). Essential’s position on this point is anything but clear. Remarkably, its brief in opposition to McGraw-Hill’s motion does not even mention the ’520 Patent, much less deny that it is prior art to the ’827 Patent. Further, at the hearing on the parties’ cross-motions, Essential’s counsel expressly admitted that the ’520 Patent “is prior art under [§ ] 102(e),” and that “in this instance, yes, the ’520 Patent qualifies, technically, under [§ ] 102(e) as prior art.” (8/31/00 Hearing Tr. at 52-53.) Similarly, the report of Essential’s own expert, Richard D. Grauer, states that “[a]s an earlier-filed application having different inventor-ship, [the ’520 Patent] became available as prior art against the ’827 Patent once it was granted.” (Defendants’ Motion, Ex. 40, Grauer Responsive Report at 6 (citing 35 U.S.C. § 102(e)).) Yet, in papers filed after this hearing, Essential has taken the opposite position, apparently in recognition of the crucial role the ’520 Patent otherwise would play in the Court’s obviousness inquiry. Essential begins with the assertion, addressed at length at the August 31 hearing, that the ’827 Patent was intended all along as a “continuation-in-part” of the ’520 Patent, but that the paperwork needed to achieve this result was inad