Full opinion text
MEMORANDUM OF OPINION THORNBURG, District Judge. THIS MATTER is before the Court on the Defendants’ motions for summary judgment and the motion of Third-Party Defendant Gemstar Development Corporation (Gemstar) for summary judgment against certain Defendants. Although a request for a hearing on these motions has been made, the undersigned finds no hearing is necessary. I. PROCEDURAL HISTORY In June 2000, SuperGuide Corporation (SuperGuide) brought this action seeking declaratory and injunctive relief against the Defendants for infringement of their patents U.S. Patent No. 4,751,578 to Reiter, et al. (Reiter ’578), U.S. Patent No. 5,038,211 to Hallenbeck (Hallenbeck ’211) and U.S. Patent No. 5,293,357 to Hallen-beck (Hallenbeck ’357), for interactive television programming guides. Each Defendant answered and asserted counterclaims for a declaration of non-infringement and invalidity. In April 2001, Defendants DirecTV Enterprises, Inc., DirecTV, Inc., DirecTV Operations, Inc. (DirecTV) and Hughes Electronics Corporation (Hughes) obtained permission to implead Gemstar, the licensee of SuperGuide’s patents. In the third-party complaint, DirecTV and Hughes also sought a declaration of non-infringement and invalidity as well as a declaration of ownership of the patents. Gemstar asserted crossclaims against SuperGuide for breach of contract and declaratory relief. SuperGuide counterclaimed against Gems-tar for a declaration of the field of use reserved in the license agreement between the two. On October 25, 2001, the undersigned construed certain claim language used in Reiter ’578, Hallenbeck ’211 and Hallen-beck ’357. SuperGuide Corp. v. DirecTV Enter., Inc., 169 F.Supp.2d 492 (W.D.N.C.2001) (the Markman decision). Based on the claim construction rendered therein, the Defendants have moved for summary judgment and Third-Party Defendant Gemstar has cross-moved for summary judgment. II. STANDARD OF REVIEW SuperGuide alleges the Defendants have infringed its patents both literally and pursuant to the doctrine of equivalents. A determination of infringement requires a two-step analysis. First, the claim must be properly construed to determine its scope and meaning. Second, the claim as properly construed must be compared to the accused device or process. In order for a court to find infringement, the plaintiff must show the presence of every ‘[limitation]’ or its substantial equivalent in the accused device. Claim construction is an issue of law .... The determination of infringement, whether literal or under the doctrine of equivalents, is a question of fact. Ecolab, Inc. v. Envirochem, Inc., 264 F.3d 1358, 1364 (Fed.Cir.2001) (internal citations and quotations omitted). The issue, then, is whether a determination of infringement can be resolved by this Court without a jury. [A grant of] summary judgment [is appropriate] when the record shows [there are] no genuine issues of material fact and entitlement to judgment as a matter of law [is proper] for the moving party. [In reviewing the record, the] court draws reasonable inferences from the evidence in favor of the non-movant, [SuperGuide], Moreover an asserted issue of material fact is not “genuine” in the sense of Fed.R.Civ.P. Rule 56 if a reasonable jury could only resolve the question for the moving party. In assessing issues of material fact to determine whether a “reasonable jury” could disagree on them, [the] court identifies facts posing a potential dispute and then examines those facts in the context of the legal criteria by which a fact finder would resolve the dispute.... Infringement under the doctrine of equivalents requires an intensely factual inquiry. And, [the] court is well aware of the difficulty of granting summary judgment motions on issues requiring delicate balancing of many factual components. Ultimately [the] court may [grant] summary judgment of non-infringement under the doctrine of equivalents, where that doctrine is legally applicable, only if it discerns no genuine issues of material fact and that no reasonable jury could find equivalence.... In this review, [the] court must examine the record for genuine issues of material fact and must determine that no reasonable jury could reach a different conclusion. Vehicular Tech. Corp. v. Titan Wheel Int’l, Inc., 212 F.3d 1377, 1381 (Fed.Cir.2000) (internal citations omitted). III. DISCUSSION A. The Reiter ’578 Patent. 1. Findings of Fact. In 1988, the Reiter patent was issued for an interactive programming guide (IPG) which allowed a television viewer to select specific programs for viewing. The invention involved a digital to analog conversion of the signal containing television programming information and the mixing of that signal with another analog signal containing video information. The distinction between analog and digital signals was addressed in the Markman decision: “analog” means an electrical signal which is continuous and analogous to its source; whereas “digital,” while also referring to an electrical signal, is not continuous because the data is converted into a series of binary numbers which represent a sampling of the data at regular, closely spaced intervals. SuperGuide, 169 F.Supp.2d at 497-98. Television signals carrying the information for television programs are typically transmitted or broadcast over the airwaves by conventional terrestrial antenna or via satellite or transmitted by means of a cable network. In each method, the television signal, which may be analog or digital, must be modulated onto, ie., carried on, an (sic) RF [radio frequency] carrier wave. This is due to the fact that unmodulated television signals cannot be broadcast any appreciable distance. In broadcast systems using transmission from radio towers, the frequencies of the carrier waves correspond to the frequen-. cies of the various television stations or channels. When transmission is received via antenna by a television set, a “tuner” is used to isolate the carrier wave carrying the desired television signal, ie., to tune to the desired channel. The television signal is then demodulated, ie., separated, from the carrier wave to obtain only the television signal (referred to as the “baseband video” or “television signal”) and the associated audio, which are then used to present the television program. In the case of terrestrial broadcast systems, until the deployment of digital television (DTV) over the past few years, the television signals were all analog signals. Cable and satellite systems follow a similar approach, ie., modulating the television signal onto a carrier wave and broadcasting the signal, along with other similar signals, to the homeowner via cable network or satellite transponder. Originally, all television signals were analog signals. In the mid-1990’s, various system providers began transmitting digital television signals. To be transmitted, such digital television signals are still modulated onto analog RF carrier waves. In many cable and all satellite systems, the modulated television signals cannot be received directly by a typical television set and used to display a television program. Rather, such systems typically include a “set top box” to convert the signal to a format that can be displayed on the television. [I]n 1985 ... television signals modulated onto carrier waves included those that could be displayed directly by a conventional television set (e.g., without the need for an intervening cable or satellite set top box) as well as those that required conversion to another form before being displayed by the television set. In 1985, conventional television sets included sets that were “cable ready” (ie., which could present non-scrambled television programs broadcast via cable without the need of a cable set top box) and those that were not. Examples of conventional signals that required some sort of conversion before they could be displayed included cable and satellite transmission signals that could not be displayed directly on a television set and scrambled signals that required descrambling before display, e.g., subscription channels or pay-per-viéw programs. Cable systems that required set top boxes to convert the received cable signals to ones that could be displayed on a conventional television set were in widespread commercial use in 1985, and the technology for implementing such systems was well known. Analog direct broadcast satellite (DBS) systems, which required satellite dishes and set top boxes to convert the analog satellite signals to ones that could be displayed on a television set were■ also known and in commercial use in 1985, and, again the technology for implementing such systems was well understood. In 1985, some of the required'underlying technology for implementing digital cable and satellite systems was just beginning to be developed and was not well knmm. Exhibit 0, Supplemental Expert Report of S. Merrill Weiss, attached to Declaration of David A. Dillard in support of Gemstar’s Motions for Summary Judgment of Infringement of Claim 1 of U.S. Patents 5,293,357 and 5,038,211 and for Permanent Injunction, filed November 8, 2001, at 6-8 (emphasis added). The Defendants DirecTV and EchoStar are DBS (Direct Broadcast Satellite) television providers. Defendants Hughes, Thomson and EchoStar manufacture, market and/or sell integrated receiver ■ decoders (IRD’s) for use with DBS television services. Amended Declaration of Stephen P. Virden, filed November 16, 2001, in Support of Defendants’ Motions for Summary Judgment, ¶¶ 3, 5. DBS systems operate by the transmission of digital signals from an uplink center on Earth to an orbiting satellite which then returns the signals to Earth for reception by the television sets of people who own or subscribe to such services. Exhibit A14, Declaration of David Rummer, attached to SuperGuide’s Opposition to Defendants’ Joint Motion for Summary Judgment of Noninfringement of the ’578 Patent [“SuperGuide’s Opposition to Noninfringement of the ’578 Patent”], at 2-3. IRD’s are the set top boxes placed on the users’ televisions which receive modulated carrier signals containing digital data streams and process the same for viewing on the televisions. Exhibit A6, Declaration of Jorge Guzman, attached to SuperGuide’s Opposition to Noninfringement of the ’578 Patent, at 2, 7. SuperGuide and Gemstar claim these IRD’s infringe on Reiter ’578. Therefore, a basic understanding of how the Defendants’ DBS systems operate is necessary. A DBS system operates by the transmission from uplink centers of streams of digital data packets, which have been modulated onto a carrier wave, to a network of satellites positioned synchronously to the Earth and orbiting at the same rate as the Earth’s rotation thus causing the satellites to remain in fixed or stationary locations above the Earth. Virden Amended Declaration, ¶ 5; Oxford English Dictionary (2d ed.1989). The digital data packets contain the video, audio, program guide and other data associated with television programs. Virden Amended Declaration, supra, ¶ 6. Each packet has a packet identifier (PID) value which allows for the differentiation of packets within the uplink signal, such as packets for CNN versus ESPN programming. Kummer Declaration, at 3. This is necessary because a single uplink signal will usually carry programming data for at least ten networks. Id. The signal is able to carry this quantity of data because it is encoded and compressed according to the Moving Pictures Expert Group (MPEG 2) standard. Id. “A simple description of MPEG is that it describes the packaging of digital audio, video, and other information for the purposes of transmission, and hence implicitly specifies the techniques for unpacking such signals within the receiving circuitry.... [T]he digital encoding of a ... television signal generates too much data given the frequency spectrum 'limitations of satellite broadcasts. Therefore, data compression techniques are used to reduce the amount of data that must be transmitted.” Exhibit Al, Declaration of Teresa Dahlberg, attached to SuperGuide’s Opposition to Noninfringement of the ’578 Patent, at 16. The uplink signal is received by the satellite transponder, a device which automatically retransmits a signal after amplifying it and translating its frequency. Kummer Declaration, at 4. The signal transmitted back to Earth, called the downlink signal, is received by a satellite dish at the owner’s residence and then passed to the IRD. Id. SuperGuide’s expert has averred that “[a]t the receiving end, the Thomson, Hughes, and EchoStar IRDs receive the analog signals and demodulate, demultiplex, perform error detect/correction, and decompression in order to separate the individual packet streams and recover the digital data encoded within the streams in the form of digital baseband signals.” Dahlberg Declaration, at 17. “[T]he operation of the satellite is not affected by whether an (sic) FM modulated signal (carrying analog data) or a QPSK modulated signal (carrying digital data) is carried by the uplink/downlink. The satellite merely performs a frequency shift on the carrier wave, which is always an analog signal.” Id., at 21 (footnote added). There is no disagreement among the parties’ various experts that digital signals must be modulated onto an analog carrier wave for transmission to and from the satellites. SuperGuide’s claim is directed to the IRD’s used to recover the digital signals from the carrier wave sent from the satellites, e.g., the downlink signal. Defendants DirecTV and Hughes manufacture and market IRD’s which process these down-link signals. Before any signal is sent to the inside set top box, it must be translated into a lower frequency, a function which is performed by the low noise block. Guzman Declaration, at 3-4. The signal is then forwarded to the owner’s set top box within which a tuner at step 2 tunes to the carrier frequency ... of the signal carrying the program information a user has sélected and downconverts it to a baseband signal. The demodulator at step 3 demodulates or extracts the digital data streams containing several channels of program information (typically ten channels) from the baseband signal. After demodulation, all processing within the IRD is performed using digital circuits until the output stage of the IRD. At step 4, the FEC [forward error correction] decoder performs forward error correction through a series of complex algorithms. Digital data modulated .onto a carrier wave is more immune to noise because it consists of “l”s and “0”s rather than a time varying analog waveform. Thus, the FEC decoder can eliminate many transmission errors by checking to determine whether any digital data was improperly demodulated (e.g., were any “l*s demodulated as “0"s or vice versa) as a result of transmission errors due to atmospheric conditions such as rain or thunderstorms. The FEC decoder sends the demodulated compressed digital baseband data to the transport IC [integrated circuit] at step 5. The transport IC determines whether packets are to be discarded or kept for further processing. Specifically, the channel demultiplexer in the transport IC filters out the undesired packets leaving only packets with a correct service channel identification number (also called a SCID) based on the program requested by a user. Next, the packets containing the desired video data are decrypted, the packet headers (including the field carrying the SCID value) are removed, and the remaining data is sent to the MPEG decoder at step 6. MPEG or Motion Picture Experts Group- is a method of compressing data, and the MPEG decoder decompresses the digital data streams that were compressed at the head-end and creates the pixels that comprise the picture. To the extent that an on-screen display (OSD) of program guide information is to be combined in some fashion with video data, the MPEG decoder performs a digital pixel by pixel combination of the video data from the video decoder with the OSD [program guide], data from memory. At step 7, the- above processed digital video data is encoded by the NTSC (National Television Standards Committee) encoder and sent to the output drivers. Essentially, the NTSC encoder converts • the digital data into a baseband analog ■ video signal. Finally, the RF [radio fre.quency] modulator included in the output drivers at 'step 8 can convert the baseband analog video and audio signal to the appropriate frequency for receipt by a regular television on channel 3 or 4. Id., at 5-6 (footnote added; other footnotes omitted). 2. Conclusions of Law a. “[A] regularly received television signal.” “After claim construction, the next step in an infringement analysis is comparing the properly construed claims with the allegedly infringing devices.” Ecolab, Inc., 264 F.3d at 1369. Element (b) of Claim (1) of Reiter ’578 reads “a mixer for mixing a regularly received television signal with the signal generated by the microcontrol-ler in accord with instructions of said mi-crocontroller.” The undersigned construed this element as follows: The term" “mixer” means the electronics for (a) receiving an unmodulated' digital signal generated by the microcontroller which contains television programming information and converting the same into an analog format; (b) receiving from the RF section an analog television signal, whether demodulated or unmodu-lated, which contains television video information; (c) receiving and stripping a modulated analog signal which contains television video information from the RF section; and (d) mixing the two analog signals to produce an analog signal containing television programming and video information which is then transmitted to the RF section. The mixer does not function as a switch. SuperGuide, 169 F.Supp.2d at 526. (1). Modulation onto a carrier wave. Defendants move for summary judgment claiming their IRD’s receive and process only digital signals, thus distinguishing their inventions from Reiter ’578 which operates on “a regularly received television signal.” Gemstar agrees that the way in which defendants’ television signals are broadcast is not at issue with respect to the ’578 patent. What is at issue is the type of signal that is received by the mixer. In defendants’ systems, the mixer receives a straightforward digital baseband signal. Whether it was encrypted, encoded, multiplexed and/or modulated under the carrier wave in a particular way for- the trip from the uplink center to the satellite and then down to the receiver is irrelevant to the issues before the Court. The issue is a simple comparison for equivalency of the mixing of a microprocessor signal and a baseband video signal in either the analog domain, as required by the construed claims, or in the digital domain, as practiced by the defendants. . Gemstar’s Notice of Adoption of Super-Guide’s Opposition to Defendants’ Motion for Summary Judgment of Non-Infringement of the ’578 Patent and Supplemental Arguments, filed November 28, 2001, at 7-8, 2 n. 2 [“Gemstar’s Notice of Adoption”] (“Carrier waves are necessarily analog. Hence, ‘transmission of a digital signal’ means the transmission of a digital signal that has been modulated onto an analog carrier wave.”) (emphasis added). SuperGuide, however, argues that the downlink signal received by the owner’s satellite dish is modulated onto an analog carrier wave, thus, both literally infringing and infringing by the doctrine of equivalents. SuperGuide argues that “[i]n fact, the signal received from defendants’ satellites is an analog signal modulated onto a carrier wave. This requirement of the Court’s order is literally met.” Super-Guide’s Opposition to Noninfringement of the ’578 Patent, at 7. This position is based on the declaration of SuperGuide’s expert, Teresa A. Dahl-berg, who, contrary to Gemstar’s expert, has concluded that although digital satellite systems use digital data, the transmission thereof occurs only after that data is converted to analog signals. Thus, she claims these signals qualify as “regularly received television signals.” Each of the accused IRDs receive (sic) a “regularly received television signal” as described by the Court’s order, because the IRDs receive broadcasts from satellite systems that employ at least two stages of modulation at the uplink facility .... Because modulation of a carrier wave always produces ari analog signal, at least the second stage of modulation comprises “am analog signal modulated onto a carrier wave.” If is quite likely that techniques very similar to that (sic) depicted in Fig. 1, below, are used at the DirecTV and EchoStar broadcast facilities since these are standard techniques employed for the transmission of digital data using radio frequency (RF) carrier waves within a satellite system. (Benoit, Exhibit 4, p. 120). QPSK is considered to be a digital modulation technique, because the resultant transmitted analog carrier wave carries digital data. However, the implementation of QPSK modulation for subsequent transmission via satellite requires a digital to analog (D/A) conversion of the baseband digital signal into an analog signal and one or more steps of modulation of the analog signal in order to place the signal at a carrier frequency that is within the frequency range of the satellite system.... Within the uplink facility, a baseband digital signal carrying digitally coded television information is converted into two analog signals, I and Q, using a D/A converter component.... In a first modulation stage, the analog I and Q signals are modulated onto an intermediate frequency carrier wave, (of the order of 70 MHz) using a QPSK modulation component. 'The resultant intermediate frequency signal (an analog signal) comprises an analog signal modulated onto a carrier wave as construed by the Court. In a second modulation stage, this intermediate frequency analog signal is modulated onto a carrier wave (of the order of 14 GHz) using an analog modulation technque (sic) (such as AM, FM, or PM), for transmission on the uplink to the orbiting satellite. This second modulation, stage is often called “upconversion” because the modulation process “shifts up” the analog signal to a range of frequencies that has been designated by the Federal Communications Commission for satellite transmissions..-... Note that some newer implementations of QPSK modulation may interchange the step of modulation with the step of D/A conversion. Dahlberg Declaration, at 25-27 (emphasis added). There are several problems with Dahl-berg’s opinion. First, she notes that “[i]t is quite likely that techniques ve'i'y similar to that (sic) depicted in Fig. 1, below, are used at the Direct TV and EchoStar broadcast facilities .... ” Id., at 25. This conclusion is supported by her reference to Exhibit A4, attached to her Declaration, which includes excerpts from, “Satellite Television Techniques of Analogue and Digital Television,” first published by H. Benoit in France in 1998. Dahlberg specifically references page 120 from Benoit which contains his discussion of a “Global view of the transmission/reception process” used by digital satellite television. Figure 5.38 is Benoit’s depiction of “The complete DVB transmission/reception chain.” Figure 1 referenced in Dahlberg’s Declaration, however, is not Benoit’s Figure 5.38. " Figure 1 is actually found at Exhibit A15 attached to the Declaration and is described by Dahlberg as an “extraction” from “The complete DVB transmission/reception chain,” ie., Figure 5.38. Setting aside the obvious problem of whether such an “extraction” constitutes admissible evidence (see, e.g., Digital Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335, 1339 n. 1. (Fed.Cir.1998)), Dahlberg’s version contains elements not present in the original drawing. Nor does it purport to describe the accused products although Dahlberg, without explanation, attributes its features to them. And, Dahlberg does not opine to a degree of scientific certainty that the same techniques are, in fact, used by the accused devices. Talley v. Danek Medical, Inc., 179 F.3d 154, 162 (4th Cir.1999) (“[T]he district court was well within its discretion to disregard this entirely speculative testimony in considering the motion for summary judgment. [A]n expert’s opinion should be excluded when it is based on assumptions which are speculative and are not supported by the record.” (citations omitted)). As a result, it is impossible to ascertain whether her opinion is based on “sufficient facts or data” or whether “the witness has applied the principles and methods reliably to the facts of the case.” Fed.R.Evid.R. 702; Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199-200 (4th Cir.2001). In short, her opinion that it is “quite likely” that “very similar” techniques are used in the Defendants’ products is an admission that she has not made a comparison of the accused products and shows that her opinion is based on mere speculation. “ ‘A reliable expert opinion must be based on scientific, technical or other specialized knowledge and not on belief or speculation, and inferences must be derived using scientific or other valid methods.’ ” Id. (quoting Oglesby v. General Motors Corp., 190 F.3d 244, 250 (4th Cir.1999)); Ashley Furniture Ind., Inc. v. Sangiacomo N.A., Ltd., 187 F.3d 363, 377 (4th Cir.1999). Moreover, Dahlberg’s declaration is inconsistent. Although she acknowledges that the QPSK system modulates digital data (see, e.g., Declaration, at 25), she opines that the digital data, prior to being uplinked to the satellite, is converted to an analog signal. However, she previously noted that “a QPSK modulated signal (carrying digital data) is carried by the uplink/downlink.” Dahlberg Declaration, at 21. And, attached to her declaration is an exhibit which refutes her explanation of modulation. “[Frequency shifting is accomplished through a process called modulation in which a high-frequency sine wave ‘carries’ the signal into the specified band. This sine wave is called the carrier.... [T]he frequency of the carrier wave can be varied, or modulated, in synchrony with the information-bearing signal.” Exhibit A16, Introduction to Telecommunication Electronics, attached to Super-Guide’s Opposition to Noninfringement of the ’578 Patent, at xv (emphasis in original, underlining added). Thus, modulation is the conversion of the base-band signal to a higher frequency by impressing the information in the baseband onto the radio frequency signal of a higher frequency. Contrary to Dahlberg’s inconsistent opinion, the transmission of digital data via satellite does not require the conversion of digital data into analog data prior to the uplink; it does, however, require the modulation of digital data onto an analog carrier wave. Exhibit 1, Direct Broadcast Satellite Communications, contained in EchoStar Defendants’ Exhibits in Support of Motions for Summary Judgment of Noninfringement of the ’578, ’211 and ’357 Patents, at 46-47 (“Modulation refers to the way that information is imparted to an (sic) RF [radio frequency] carrier.... With QPSK, the carrier [wave] can assume one of four possible phases .... ”); Exhibit A3, Data & Computer Communications, attached to Dahlberg Declaration, at 130-31 (“Data may be transmitted using a carrier signal by modulátion. Modulation is the process of encoding source data onto a carrier signal .... All modulation techniques involve operation on one or more of the three fundamental frequency-domain parameters: amplitude, frequency, and phase.... Some transmission media, such as ... unguided media, will only propagate analog signals.... [When this occurs, whatever method is used will] involve altering one or more characteristics of a earner frequency to represent binary data.”)-, Exhibit A4, Satellite Television: Techniques of Analogue and Digital Television, attached to Dahlberg Declaration, at 121 (In describing the “Composition of a digital TV Integrated Receiver/Decoder (IRD),” an expert whose publication was attached to Dahlberg’s declaration noted that, “[i]n 1998, however, the cost of a digital receiver was still substantially higher than the cost of its analogue counterpart.” If Dahl-berg’s position were correct, this distinction would not have been noted.); Codex Corp. v. Milgo Elec. Corp., 717 F.2d 622, 624-25 (1st Cir.1983) (“Modulation is the alteration of the sine wave in some manner so as to impart some information to it.... Phase modulation, or more specifically in this case differential phase modulation, is accomplished by sending out a signal pulse during a modulation period followed by another modulation period with a signal pulse of a different phase.”); British Telecomm. P.L.C. v. Prodigy Communications Corp., 189 F.Supp.2d 101, 123 (S.D.N.Y.2002) (“A ‘modulating signal’ according to the technical dictionary is a ‘signal which causes a variation of some characteristics of a carrier signal.’ To demodulate is ‘to recover the modulating wave from a modulated carrier.’ ”). Where an expert’s testimony is inherently conflicting, it fails to establish a factual dispute. Alpex Computer Corp. v. Nintendo Co. Ltd., 102 F.3d 1214, 1223 (Fed.Cir.19@96) (noting that the expert’s testimony actually acknowledged that the patented device and the accused device did not operate in the same manner); Cybor Corp. v. FAS Tech., Inc., 138 F.3d 1448, 1465 (Fed.Cir.1998) (“using Alpex’s expert testimony against Alpex, there were no factual dispute[s] between the parties”). In describing the same process of “uplinking” satellite transmissions, Gems-tar’s expert opined that “[i]t is important to recognize that signals transmitted by satellite are modulated in a different way from those broadcast terrestrially.” Weiss Supplemental Declaration, at 20. He further noted “there are two stages of processing; the first is source coding, which prepares the signal to fit within and to withstand the rigors of the transmission channel. The second is channel coding, which modulates the source-coded signal for actual transmission.... [I]t is my opinion that ... a signal transmitted digitally [is] fully equivalent to a signal transmitted in analog form ....” Id., at 17 (emphasis added). Unlike Dahlberg, Weiss makes no mention of a digital to analog conversion of digital data prior to modulation onto a carrier wave. Moreover, regardless of the modulation technique, the fact remains, and is agreed with by Gemstar, that the satellite television services at issue entail digital data. “[T]he packetized data streams for each of the 32 transponders are QPSK modulated, which is a digital modulation technique, onto 70 MHz carrier signals. At no time does the DBS System convert any digital data streams into analog signals.” Guzman Declaration, at 3. This opinion is not inconsistent with the modulation techniques described by every expert except Dahlberg and the Court finds her explanation of modulation as requiring a digital to analog conversion prior to transmission from the uplink center to the satellites is merely a “smokescreen.” As Gemstar aptly noted, the manner in which the television data is broadcast is simply not at issue. Although Dahlberg’s explanation was apparently an attempt to create an issue of fact, it does not create a genuine one. Cooper, supra; Talley, supra. Moreover, although the Defendants’ digital data contained within the downlink signal is modulated onto an analog wave for transmission, ie., an analog carrier wave, that signal is not literally “a regularly received television signal” as construed by the undersigned. SuperGuide, supra. (“The phrase ‘regularly received television signal’ means an analog signal modulated onto a earner wave and transmitted via terrestrial antennae or through a cable or satellite system. It does not include a digital television signal as understood in the state of the art in the mid-1990’s.”) (emphasis added). The digital data modulated onto a carrier wave for purposes of the Defendants’ IRD’s is not an analog signal but a digital signal both before and after modulation onto the carrier wave. [T]he packetized data streams for each of the 32 transponders are QPSK modulated, which is a digital modulation technique, onto 70 MHz carrier signals. At no time does the DBS system convert any digital data streams into analog signals. The data streams are transmitted (“uplinked”) to geo-synchronous satellites using large dish transmitters located at the head-end. This uplink process provides a continuous flow of data to the satellites. Each geo-syn-chronous satellite includes several transponders, and each transponder receives its own designated modulated carrier signal. Each transponder consists of a receiver/transmitter combination that receives a modulated carrier signal (transporting digital data streams) in the 17.3-17.8 GHz frequency band and shifts the carrier frequency to the 12.2-12.7 GHz frequency band (while leaving the digital data unchanged). The shifted signals are then transmitted to earth in the 12.2-12.7 GHz frequency band to a user’s satellite dish, typically an 18" dish. Guzman Declaration, at 3 (emphasis and footnotes added). “ ‘To establish literal infringement, every limitation set forth in a claim must be found in the accused product, exactly.’ ” Nilssen v. Motorola, Inc., 2002 WL 206007 *2 (N.D.Ill.2002) (quoting Southwall Tech., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed.Cir.1995)). “As a matter of law, an accused device cannot infringe if even a single limitation is not satisfied.” Id. (citing Digital Biometrics, 149 F.3d at 1349). Here, there is no literal infringement because at no point in the DBS system is an analog signal modulated onto an analog carrier wave. See, e.g., Digital Biomet rics, Inc., at 1348 (Noting that literal infringement could not be established because the data generated by the defendant’s product was analog whereas the plaintiffs invention generated digital data.). Likewise, there is no literal infringement because, as discussed more fully below, the IRD’s process digital data which is converted to an- analog signal only at the output to the television, whereas Reiter processed analog data after conversion of digital data within the mixer. See, e.g., Oak Tech, Inc. v. Int’l Trade Comm’n, 248 F.3d 1316, 1330-31 (Fed.Cir.2001) (Noting that literal infringement could not be shown where the error detection and correction processes were reversed in the accused device.). Defendants’ also claim summary judgment is appropriate because the IRD processing of digital data is not substantially equivalent to the Reiter ’578 invention. Relying on the “function-way-result” test, (see, Tektronix, Inc. v. United States, 195 Ct.Cl. 53, 445 F.2d 323, 329 (1971)), SuperGuide argues the Defendants’ “MPEG-modulated signals perform substantially the same fu/nction (conveying video and program guide information to the mixer circuitry), in substantially the same way (modulation of an analog signal on a carrier wave), to achieve substantially the same result (enabling a mixing operation).” SuperGuide’s Opposition to Noninfringement of the ’578 Patent, at 8 (footnote added). “[Ijnfringement under the doctrine of equivalents requires that the accused product contain each limitation of the claim or its equivalent.” Ecolab, Inc., 264 F.3d at 1370-71. “[Cjourts have [ ] recognized that to permit imitation of &- patented invention which does not copy every literal detail would be to convert the protection of the patent grant into a hollow and useless thing. Such a limitation would leave room for—indeed encourage—the unscrupulous copyist to make’ unimportant and insubstantial changes and substitutions in the patent which, though adding nothing, would be enough to take the copied matter outside the claim, and hence outside the reach of law.” Toro Co. v. White Consol. Indus., Inc., 266 F.3d 1367, 1370 (Fed.Cir.2001) (quoting Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 607, 70 S.Ct. 854, 94 L.Ed. 1097 (1950) (emphasis added)). SuperGuide argues that the use of an analog carrier wave to transmit digital-ized data is substantially the same as “modulation of an analog signal on a carrier wave.” However, as noted above, only digital signals are modulated onto carrier waves in the DBS system and the signals received by the IRD’s, although modulated onto carrier waves, contain digital, not analog, data. Indeed, Gemstar agrees that the method of broadcast is not at issue. “The touchstone for determining whether an element in an accused device is equivalent to a claimed limitation is the substan-tiality of their differences. In order to infringe under the doctrine of equivalents, the element must differ only insubstantially from the asserted claim limitation.” Digital Biometrics, 149 F.3d at 1349. However, “the range of equivalents cannot be divorced from the scope of the claims.” Vehicular Tech., 212 F.3d at 1382. The Defendants’ products are based on digital, as opposed to analog, methodology and the fact that both systems use a carrier wave to transmit data does not constitute infringement under the doctrine of equivalents. (ii). Analog versus digital domain. Gemstar acknowledges that the common use of a carrier wave for transmission is not at issue. Gemstar’s Notice of Adoption, at 7 (“[T]he way in which defendants’ television signals are broadcast is not at issue with respect to the ’578 patent.”). “The issue is a simple comparison for equivalency of the mixing of a microprocessor signal and a baseband video signal in either the analog domain, as required by the construed claims, or in the digital domain, as practiced by defendants.” Id., at 8. Defendants respond that there is a substantial difference between the digital and analog domains. [T]he MPEG decoder receives and decodes digital data packets and then combines digital video data with digital program guide data in a pixel by pixel manner. No analog signals are received by the MPEG decoder .... Thus, the MPEG decoder ... cannot mix any analog signals. Further, because the MPEG decoder ... only receives and processes digital data streams, the MPEG decoder does not convert any digital data streams ... into analog signals ...; i.e., the MPEG decoder does not include a digital to analog converter.... The MPEG decoder combines two digital signals using an arithmetic logic circuit to execute a formula that can determine pixel by pixel whether digital video, digital program guide, or both will be used, and if both, how much of each will be used. The MPEG decoder combines two digital bitmaps, and the result of its signal processing is a combined digital bitmap, not a mixed analog signal containing television programming and video information. Guzman Declaration, at 7-8 (footnote added). The signal sent from the MPEG decoder to the NTSC encoder is digital. Id., at 6. The NTSC encoder converts the digital signal into a baseband analog signal which is then sent to the output drivers. Id. Thus, Defendants argue that the “complex processing required when using the digital data streams received by the ... IRDs is substantially different from receiving and processing analog signals.” Id., at 9. SuperGuide and Gemstar respond that the accused devices, like Reiter, “mix” signals, albeit digital signals, and those signals are ultimately converted into analog signals which can be processed by the television. “Implicit in the Court’s construction of [Reiter’s] “mixer” is the addition of a digital-to-analog converter between the microcontroller and the true mixing function to allow mixing to take place exclusively in • the analog domain.” Weiss Supplemental Declaration, at 15. In' the Markman decision, the undersigned found: Figure 2 attached to the [Reiter ’578] patent shows that the 'microcontroller sends program data to the mixer while the RF section sends video data to the mixer. The function of the mixer is to ' combine the two into one signal which is then sent to the RF section which transmits the signal to the television set.... [T]he parties agreed the information generated by the microcontroller would be in digital format. And, it was agreed that the video data was in analog format. ... Thus, the- mixer converts the digital signal [from the microcontroller] into analog format ‘ and then mixes it with the video data. In other words, two analog signals are'mixed. SuperGuide, supra, at 502, 504 (footnote omitted). “The purpose of claims is not to explain the technology or how it works, but to state the legal boundaries of the patent grant.” S3, Inc. v. NVIDIA Corp., 259 F.3d 1364, 1369 (Fed.Cir.2001). In the Reiter invention, programming information is stored in RAM, retrieved by the microprocessor and transmitted as a digital signal to the mixer where it must be converted to analog format before “mixing” the program information with the video signal. In the Defendants’ systems, both video and program information is transmitted in digital format at the uplink center to the satellite: It is untouched at the satellite and sent via downlink to the IRD which decompresses, de-multiplexes and decrypts that data, still in digital format. “[T]he MPEG decoder decompresses the digital -data streams that were compressed at the head-end [or up-link center] and creates the pixels that comprise the picture. To the extent that an on-screen display (OSD) of program guide information is to be combined in some fashion with video data, the MPEG decoder performs a digital pixel by pixel combination of the video data from the video decoder with the OSD data from memory.” Guzman Declaration, at 6. This combined digital signal is converted to analog only when the information is output to the television. In other words, there is no digital to analog conversion of one signal followed by analog to analog mixing of signals within the IRD. K-2 Corp. v. Salomon S.A., 191 F.3d 1356, 1367-68 (Fed.Cir.1999) (There can be no substantial equivalence where the patent requires a function not performed by the accused device. Thus, an in-line skate with a removable screw at the heel cannot be the equivalent of an in-line skate with a permanently affixed heel.); Virden Declaration, at ¶ 9 (“The uplink signal received by a DBS Satellite transponder is a digitally modulated, time division multiplexed sequence of MPEG 2 encoded video data packets, audio packets and program data packets.”) (emphasis added). As recently noted by the Federal Circuit: [T]here are substantial differences between the binary mathematics performed by .the. accused devices and the mathematics in the claimed [Reiter IPG].... Second, ... the relevant circuitry in the devices is substantially different. The claimed [IPG] as properly construed requires two circuits: [digital to analog conversion] circuitry, followed by [mixing of two analog signals]. Although [the] accused device[s] contain[] these two circuits, [the IRD’s process solely digital signals and the combination of video and programming information] precedes, rather than follows, [a digital to analog conversion for output to the television].... The third substantial difference ... is that the data processed by the devices is different. Oak Tech, 248 F.3d at 1332. Thus, the IRD’s do not, contrary to Gemstar’s argument, perform substantially the same function in substantially the same way to obtain substantially the same result. “It is not appropriate in this case, where all of the claimed functions are performed in the accused devices by subsequently developed or improved means, to view each such change as if it were the only change from the disclosed embodiments of the invention. It is the entirety of the technology embodied in the accused devices that must be compared with the patent disclosure.” Texas Instruments, Inc. v. U.S. Int’l Trade Comm’n, 805 F.2d 1558, 1570 (Fed.Cir.1986). First, the signal sent via downlink contains all the information necessary for the programming guide’s creation whereas Reiter relied on the supply of that information from an external source, ie., the centralized computer. Id. (“But viewing all of the modifications in the accused devices, we conclude that they reflect more than mere substitution of an embellishment made possible by [improved] technology .... ” (internal citations omitted)). Second, the IRD’s function only in the digital realm whereas Reiter converts- the digital programming data into an analog signal which is then mixed with the analog video data, ie., Reiter functioned only in the analog realm. Oak Tech,, 248 F.3d at 1332 (“the data processed by the devices is different.”). Third, the digital data sent to the IRD’s must be demodulated, demul-tiplexed, and decoded before processing whereas Reiter required merely that the analog signal be stripped or demodulated off of the carrier wave. Indeed, Super-Guide’s expert noted that this process required forward error correction, something necessary only to the digital realm. Dahl-berg Declaration, at 33-34 (At page 34 of the Declaration, a comment is included which appears to have been from an earlier draft but which was riot omitted from the final one. The notation is, “quote the text that says FEC needed by digital.”). Fourth, the IRD’s do not contain a mixer component in which digital data is.converted followed by mixing of two analog signals. While the MPEG decoder combines data, it combines digital data, not analog data. Oak Tech, supra. There is no “mixing” of signals as claimed in the Reiter invention. “Infringement may not be found under the doctrine of equivalents if a limitation is missing, that is, not replaced with ah equivalent substi-tuent.” Zygo Corp. v. Wyko Corp., 79 F.3d 1563, 1568 (Fed.Cir.1996). Nor can the doctrine of equivalents be used to “ignore the actual language of the patent.” K-2 Corp., 191 F.3d at 1367. Assuming arguendo that the accused devices perform the same function and achieve the same result, it is beyond doubt that they do so in a substantially different way. Speedplay, Inc. v. Bebop, Inc., 211 F.3d 1245, 1258 (Fed.Cir.2000); Texas Instruments, 805 F.2d at 1571 (“Equivalence of the subsequently-developed devices is not established by showing only accomplishment of the same result.... [T]he total of the technological changes beyond what the inventors disclosed, transcends the equitable limits illustrated, for example, in ... Hughes Aircraft ..., and propels the accused devices beyond a just scope of the [Reiter ’578] claims.”). It [is] not disputed that there are substantial differences between [analog and .digital] technologies .... The differences in operation, structure, and capabilities of these systems are so extensive that ... no reasonable trier of fact could find only insubstantial differences, or substantially the same function, way, and result, between the [Reiter ’578] and the accused [digital] systems. Wang Labs., Inc. v. America Online, Inc., 197 F.3d 1377, 1386 (Fed.Cir.1999). (iii). The mixer component. In addition to the argument that the digital domain is the substantial equivalent of the analog domain, SuperGuide argues the accused devices have substitu-ents which are the substantial equivalent of Reiter’s mixer component. SuperGuide claims the MPEG decoder actually functions as a mixer; and moreover, because the NTSC encoder converts the digital signal containing the program and video information into analog format, a mixing process occurs. It is an accurate statement that “[i]f, in the context of the invention, the substituent substantially performs the same function to achieve the same result in the same way as the required limitation, that limitation is satisfied.” Zygo Corp., 79 F.3d at 1568. Thus, Super-Guide argues the accused devices have two substituents: the MPEG decoder and the NTSC encoder. Considering first the NTSC encoder, it is SuperGuide’s position that “D/A [digital to analog] conversion at the output rather than the input of the mixer circuitry is a mere reversal of parts that does not avoid infringement.” SuperGuide’s Opposition to Noninfringement of the ’578 Patent, at 11. “The critical point is not whether the combined signals are digital or analog; it is that the combined signal must emerge from the mixer as an NTSC compliant analog signal.” Id. This, however, is an oversimplification, of the differences inherent in the two technologies. See, Oak Tech., supra (The binary mathematics performed by the accused devices were substantially different from those used in the patented device; the circuitry of the two devices was substantially different; the accused devices actually contained additional, circuitry not found in the patented device; the data processed was different; and the processing occurred in a different order; thus, there was no substantial equivalence.). Likewise, while the declaration of Gemstar’s expert “purports to be an analysis of the structure of the specification and the accused device, it actually provides no more than an analysis of functional equivalency.” Alpex Computer Corp., 102 F.3d at 1222. Mr. Weiss declared: ‘ The mixing of a video baseband signal[ ] and a microprocessor signal containing program schedule information can be carried out either in the analog domain (both signals are analog) or in the digital domain (both signals are digital), and the functions performed are identical. Each input is multiplied by a value derived from a control signal (often called the “alpha” signal), and the products are then summed. The result is an image that contains the two images combined in a way controlled by the shape and amplitude of the alpha signal. Alternatively, mixing may occur by “interleaving” (alternating between) the two signals. It is well recognized in the art that such functions can be performed in both the analog and digital domains with essentially identical results. Any differences between analog and digital image processing of this sort are insubstantial. Weiss Supplemental Declaration, at 16. However, this approach has been repudiated by the Federal Circuit. Mr. Milner described the shift registers of the [accused device] as storing “just one little slice of an object” to be imaged; whereas he said the bit-map system “stores the whole screen.” He concluded that displaying a slice of an object is equivalent to displaying the “whole screen.” Specifically, Mr. Mil-ner testified that “the reason they are equivalent is by storing one line at a time and using it over and over and over again very quickly you can do the same thing.” Thus, Mr. Milner concluded that by repeating the [accused] process the entire screen will eventually be imaged as is done in the bit map system. This is a conclusion, however, of equiválency' of function — both systems store data and will eventually display an image on the whole' screen. Mr. Milner did not compare the structure of the [accused device] with the bit map structure disclosed in the specifiea- , tion.... Mr. Milner’s testimony that the claimed ánd accused devices were substantially the same in terms of function/way/result was merely conclusory Alpex Computer Corp., supra. The fatal flaw in plaintiffs analysis is that [SuperGuide] failed to show that the accused device is programmed to perform the same functions as [its] device, and that the way in which the accused device performs those functions is equivalent to [its] device. That is, ■plaintiff failed to identify the particular components within the accused device (including any algorithm used by its mi- ■ croprocessor) that allegedly perform the [conversion of digital data into analog data and the mixing of two analog signals] and [it] failed to show that those components (and/or that algorithm) perform those functions in substantially the same way as the [Reiter mixer] that the court has construed [is] the corresponding structure in plaintiffs invention. Jackson v. Casio PhoneMate, Inc., 166 F.Supp.2d 1237, 1249 (N.D.Ill.2001); accord, Zelinski v. Brunswick Corp., 185 F.3d 1311, 1317 (Fed.Cir.1999) (“conclu-sory expert declarations devoid of facts upon which the conclusions were reached fail to raise a genuine issue of material fact which would preclude summary judgment” (citations omitted». Moreover] digital to analog conversion occurs in the IRD’s after the combination of the video and programming information, as opposed to preceding the same, and only because traditional televisions, unlike digital and high definition televisions, cannot receive digital signals. Jackson, supra. “Equivalence of subsequently developed devices is not established by showing only accomplishment of the same result.” Pitney Bowes, Inc. v. Sudbury Sys., Inc., 128 F.Supp.2d 75, 83 (D.Conn.2000) (citing Zygo Corp., supra). Indeed, in the Reiter patent, the invention is limited by the language of the specification to the receipt in the RF section of “a regularly received television signal.” See, e.g., Reiter, Col. 3, 11. 45-47 (“The system ... is self-contained in a box ... which receives television signals at input . ■.. via antenna ... and/or cable.”); Col. 5,11. 49-52 (“The message might be accompanied by digital sound information which could be converted into analog signals in the RF section ... and which would be perceived as electronic music.”); Col. 7, II. 25-28 (“As is well known in the art, captioning information may be sent via subcarrier, as by during the blanking interval of the video signal of the television station.”). “Having disclosed without claiming the [digital captioning component], [Reiter] cannot now invoke the doctrine of equivalents to extend its ... limitation to encompass [digital technology].” Johnson & Johnston Assoc., Inc. v. R.E. Serv. Co., Inc., 285 F.3d 1046, 1055 (Fed.Cir.2002). The issue, then, is whether the IRD provides television programming and video information “in substantially the same way ” in order to provide interactive television programming guides. The position of SuperGuide and Gemstar overlooks the requirement of an “element by element” analysis: “because each limitation contained in a patent claim is material to defining the scope of the patented invention, a doctrine of equivalents analysis must be applied to the individual claim limitations, not to the' invention as a whole.” Ecolab, Inc., 264 F.3d at 1371 (citing Warner-Jenkinson Co., 520 U.S. at 40, 117 S.Ct. 1040). The IRD “must be shown to include an equivalent for each literally absent claim limitation.” Dawn Equip. Co. v. Kentucky Farms, Inc., 140 F.3d 1009, 1015 (Fed.Cir.1998). Here, the absent element is a mixer for (1) converting the digital program data into analog format and (2) mixing that signal from the microcontroller with a regularly received television signal, ie., an analog signal. SuperGuide claims the mixing occurs in the MPEG decoder when the digital programming information retrieved from RAM is combined with the digital video data sent from the transport IC. That combined signal is then sent to the NTSC encoder where a digital to analog conversion occurs. However, the MPEG decoders combine two digital signals using an arithmetic logic circuit to execute a formula which determines pixel-by-pixel whether digital video, digital OSD or both will be used. Rummer Declaration, at 8-9. Defendants note that the combination of two digital signals is not the substantial equivalent of a digital to analog conversion followed by the mixing of two analog signals. And, they note the Reiter mixer does both the conversion and the mixing whereas, in the accused IRD’s, the digital signals are first combined in the MPEG decoder and then convérted in the NTSC encoder. [T]he Hughes IRDs are not capable of processing analog television signals and do not include any electronics capable of receiving modulated or unmodulatéd analog signals containing television programming or video information.... [When the] power [is]' off to the'Hughes IRDs and when the Hughes IRDs are configured to pass through analog signals, the Hughes IRDs act as a wire and merely pass the received analog signal directly out to the television without any processing of the signal by the Hughes IRDs. In other words, analog television signals are never sent- to any circuitry within the Hughes IRDs because they are passed directly to a television without being processed. The MPEG decoder combines two digital signals using an arithmetic logic circuit to execute a formula that can determine pixel by pixel whether digital video, digital' program guide, ■ or both will be used, and if both, how much of each will be used. The MPEG decoder combines two digital bitmaps, and the result of its signal processing is a combined digital bitmap, not a mixed analog signal containing television programming and video information. [Hughes’ IRDs have] alternate ways to display program guide data [which] make the combination of program guide data with video data much-more complex than performing an analog to digital (AD) conversion on two analog signals and then combining the two digital signals. Guzman Declaration, at 7-8. Thus, the [Defendants’] systemfs] do not perform in substantially the same way [as the Reiter invention] because the inherent differences between analog signals and digital signals provide an inherently different product that results not from mere improvements to the plaintiffs system[ ], but from inherent changes in the type of signal that generates the [IRDs]. [In. the IRDs], the focus is on the type of signal that generates the [video and programming information] and the type of receiver necessary to process the signal, and both the signal and,the equipment that process the signal are inherently different and perform in substantially-different ways. Senior Tech., Inc. v. R.F. Tech., Inc., 58 F.Supp.2d 1076, 1091 (D.Neb.1999). “To be a ‘substantial equivalent,’ the element substituted in the accused device for the element set forth in the claim must not be such as would substantially change the way in which the function of the claimed invention is performed.” Perkin-Elmer Corp. v. Westinghouse Elec. Corp., 822 F.2d 1528, 1533 (Fed.Cir.1987). The claimed equivalents here are the MPEG decoder and the NTSC encoder. Their substitution would substantially change the manner in which the Reiter invention is performed. “The differences in operation, structure, and capabilities of these systems are so extensive that ... no reasonable trier of fact could find only insubstantial differences, or substantially the same function, way, and result .... ” Wang Labs., 197 F.3d at 1386. In other words, the IRD’s are “too different from the patented invention to support a verdict of infringement under the doctrine of equivalents [and] no reasonable jury could find otherwise.” Digital Biometrics, 149 F.3d at 1349; Zygo Corp., 79 F.3d at 1570 (“Because the [IRDs] ha[ve] no [mixer] or equivalent thereof, a limitation required by the claim is missing and there is no infringement.”); Wolverine World Wide, Inc. v. Nike, Inc., 38 F.3d 1192, 1199 (Fed.Cir.1994) (“[B]ased on the significantly different way in which the claimed and accused devices operate, ... no reasonable factfinder could find infringement under the doctrine of equivalents.”). Moreover, “if a court determines that a finding of infringement under the doctrine of equivalents would entirely vitiate a particular claim element, then the court should rule that there is no infringement under the doctrine of equivalents.” Bell Atlantic Network Serv., Inc. v. Covad Communications Group, 262 F.3d 1258, 1279-80 (Fed.Cir.2001) (citations omitted). SuperGuide and Gemstar’s theory would vitiate the limitation of mixing “a regularly received television signal” as construed to mean an analog television signal. It would also invalidate the function of the mixer, i.e., to mix the analog signal with the converted digital sign