Full opinion text
MEMORANDUM AND ORDER MCLAUGHLIN, District Judge. INTRODUCTION National Steel Car (“NSC”), a manufacturer of rail cars, is suing Canadian Pacific Railway (“CPR”), a Canadian railroad, and three affiliated companies for patent infringement. The accused product is a dropped deck center beam flat car that is used for hauling lumber. CPR has entered into a contract to purchase the accused rail cars from Greenbrier, one of NSC’s competitors, for use in the United States. NSC claims that the accused rail cars infringe its United States Patent Number 4,951,575 (“the ’575 Patent”). Before the Court is the plaintiffs motion for a preliminary injunction. The Court held an evidentiary hearing on December 11 and 12, 2002. CPR concedes that the asserted claim limitations of the ’575 Patent read on the accused rail cars. CPR argues that it is not guilty of infringement, however, because the accused rail cars will be only temporarily in the United States. The defendants also claim that the ’575 Patent is invalid because of anticipation and obviousness, and unenforceable because it was fraudulently revived. The Court finds that these defenses lack substantial merit and will grant the preliminary injunction. Pursuant to Federal Rule of Civil Procedure 52(a), the Court’s findings of fact and conclusions of law are set forth below. For ease of reference, certain findings of fact, including findings relevant to the Court’s invalidity analysis, are included under the appropriate headings in the Court’s Conclusions of Law and Additional Findings of Fact section. Any other conclusion of law that should be construed as a finding of fact is hereby adopted as such. FINDINGS OF FACT I. The Parties 1. The plaintiff, National Steel Car, Ltd. (“NSC”), is a Canadian corporation that has manufactured railroad cars since 1912. It is a private corporation that employs approximately 800 people. Examples of some of the cars that NSC builds are flat cars, boxcars in various configurations, cargo cars, coil steel ears, and hopper cars in a number of different configurations. Tr. I, at 109, 111; PL Mot. Ex. B, at ¶¶ 14,17. 2. NSC sells its rail cars in North America. NSC sells rail cars to class one railroads such as Union Pacific, Burlington Northern, Fort Worth, CSX, and Norfolk Southern. NSC also sells rail cars’ to a number of leasing companies such as TTX, GE Capital, GATX, CIT, and First Union. Additionally, NSC sells rail cars to Canadian railroads such as Canadian National Railway, CPR, and BC Rail. Tr. I, at 109-110. 3. Canadian Pacific Railway, Ltd., is a holding company. Canadian Pacific Railway Company conducts most of CPR’s business. 8942503 Canada is a wholly owned subsidiary of CPR. The Delaware and Hudson Railway Company is a railway in the United States owned by Canadian Pacific Railway. Unless otherwise noted, “Canadian Pacific Railway” or “CPR” refers to all of the defendants collectively. 4. CPR owns rail lines in Canada. It owns and operates trains that run on these railroads. It does not manufacture rail cars. It buys rail cars for its trains from rail car manufacturers. In the past, it has been a large customer of NSC’s. PI. Mot. Ex. B, ¶ 5. 5. The Greenbrier Companies (“Green-brier”) is a United States company that makes rail cars. Greenbrier produces rail cars at its Gunderson facility in Portland, Oregon and its TrentonWorks facility in Nova Scotia, Canada. Greenbrier is a competitor of NSC’s. PI. Mot. Ex. B, at ¶ 2; PI. Reply Ex. 16; PL Reply Ex. 42, at 2. II. Issuance / Reissuance of the ’575 Patent 6. On August 28, 1990, Danilo A. Dominguez and James F. Flores were issued United States Patent No. 4,951,575 (“the ’575 Patent”). This patent was for a depressed center beam flat car designed to haul large loads of lumber. PI. Mot. Ex. A. 7. After being issued the patent, Mr. Dominguez and Mr. Flores attempted to commercialize it by marketing it to some rail car manufacturing companies including Gunderson. Def. Opp. Ex. 9, at 164; Def. Opp. Ex. 10, at 62. 8. Mr. Flores stopped his attempts to commercialize the ’575 Patent between a year and a year and a half after the patent was issued. Mr. Dominguez ceased his attempts to commercialize the patent by 1993. Def. Opp. Ex. 10, at 189-90; Def. Opp. Ex. 10, at 63. 9. From 1992 to 2000, Mr. Dominguez ran a manufacturing facility in Texas. He was working six or seven days a week and up to sixteen hours a day dealing with customers, employees, and the government. Def. Opp. Ex. 9, at 128. 10. In 1994, Mr. Dominguez paid a fee to the Patent and Trademark Office as required by law to maintain the ’575 Patent. He knew that if he did not pay the fees, then the patent would expire. Def. Opp. Ex. 9, at 98-99,111-12. 11. Mr. Flores had given Mr. Dominguez the authority to make a decision on whether or not to pay the maintenance fees for the ’575 Patent. Mr. Flores believed that Mr. Dominguez was paying the required maintenance fees. Def. Opp. Ex. 10, at 75-76. 12. In letters dated August 19, 1997 and January 20, 1998, Mr. Dominguez’s attorney, Edward Gilhooly, sent letters to Mr. Dominguez reminding him that another maintenance fee was due in August 1998. Def. Opp. Ex. 18. 13. The ’575 Patent lapsed on August 28, 1998 after neither Mr. Dominguez nor Mr. Flores paid the maintenance fee that was due. The failure to pay the fee was unintentional. At the time the fee was due, Mr. Dominguez was busy'running his manufacturing facility in Texas. Mr. Dominguez forgot all about the ’575 Patent at the time the maintenance fee was due because of how busy he was running his manufacturing facility. Mr. Flores did not pay the maintenance fee that was due because he had given Mr. Dominguez the responsibility to pay the maintenance fee, and he assumed that Mr. Dominguez had paid the maintenance fee. Def. Opp. Ex. 9, at 128, 137, 147; Def. Opp. Ex. 10, at 75-76. 14. In early 2000, Neil Smith, an attorney for NSC, contacted Mr. Dominguez and Mr. Flores to inquire about the ’575 Patent. Mr. Smith negotiated with Mr. Dominguez and Mr. Flores to obtain the ’575 Patent for NSC. Pl. Reply Ex. 4, at 7-8,11,16. 15. During the negotiations with NSC for the sale of the ’575 Patent, Mr. Flores told Mr. Smith that he did not intend to let the ’575 Patent lapse. He thought that Mr. Dominguez had paid any maintenance fees that were required. He first learned that the maintenance fee had not been paid when Mr. Smith told him about it. Mr. Flores was surprised when Mr. Smith told him the maintenance fee had not been paid. Pl. Reply Ex. 4, at 11, 15; Pl. Reply Ex. 5, at 75,148,151. 16. Mr. Dominguez told Mr. Smith that he had not intended to let the patent lapse for failure to pay the maintenance fees. Pl. Reply Ex. 4, at 16; Def. Opp. Ex. 12, at 31-32. 17. On February 29, 2000, Mr. Smith sent a letter to Mr. Dominguez and Mr. Flores outlining the agreement for NSC to acquire the rights to the ’575 Patent. In Mr. Smith’s letter, he wrote “that [Mr. Dominguez and Mr. Flores] did not intend to let the ’575 Patent expire for failure to pay the maintenance fee”. Pl. Reply Ex. 29. 18. NSC bought the ’575 Patent in March of 2000 for [Redacted] with [Redacted] to each inventor. NSC promised another [Redacted] to each inventor if NSC was able to reinstate the ’575 Patent. Tr. I, at 112; Def. Opp. Ex. 16. 19. On March 31, 2000, George Lim-bach, Mr. Smith’s partner, filed with the Patent and Trademark Office (“the PTO”) a petition to revive the patent. This petition stated that “the delay in payment of the maintenance fee was unintentional.” Pl. Reply Ex. 30, at NSC 000262. 20. The PTO reinstated the ’575 Patent on May 1, 2000. Pl. Reply Ex. 30, at NSC000266. III. Dropped Deck Center Beam Flat Cars 21. At the time that the ’575 Patent was obtained, most lumber and construction material was transported in center beam or center partition rail cars. Materials transported on these cars was generally bundled in equal length pieces. A standard 100 ton center beam car could carry between 194,000 to 200,000 pounds. The weight of typical loads of lumber carried on fully loaded cars was approximately 170,000 pounds. The result was that the cars were carrying between 85% and 87.6% of the weight that the cars could. Pl. Mot. Ex. A, at 1. 22. The standard center beam cars in existence at the time of the ’575 Patent was invented had a center of gravity of ninety-six inches loaded and fifty-six inches empty. The high center of gravity presented certain problems with stability. Materials loaded onto the cars needed to be placed in such a way that the weight was evenly distributed on both sides of the center beam. Unbalanced loads had the potential to tip over the car. Pl. Mot. Ex. A., at 1. 23. The ’575 Patent refers to its car as a “depressed center beam flat car.” This is the same car as a “dropped deck center beam flat car.” See Pl. Mot. Ex. A. 24. A dropped deck center beam flat car has an intermediate section between the front and back wheels that is lower than the end sections. These types of cars can haul loads that might otherwise present clearance problems on a basic flat car. Additionally, for a given clearance, a depressed center car can haul a load of greater volume than a regular flat car. Before 1989, designers of these cars used a sloping design in the transition area between the two levels. Def. Opp. Ex. 1, ¶ 12; PI. Reply Ex. 1, ¶ 5. 25. 25. NSC has built a prototype of the car that is the commercial embodiment of the ’575 Patent. The prototype is the NSCX 2011. This car has been displayed and discussed in presentations including presentations done for CPR. The prototype is for the dropped deck center beam flat car offered by NSC to CPR. Tr. I, at 116-17; PI. H’rg Ex. 2; PI. Mot. Ex. B, at ¶¶ 3-4. 26. Greenbrier’s version of a dropped deck center beam flat car is the GBRX 20003. This is the dropped deck center beam rail car that Greenbrier sold to CPR. PI. Mot. Ex. B, at ¶ 12. IV. CPR’s Purchase of Dropped Deck Center Beam Cars 27. In 1999, CPR began a program of fleet renewal for its center beam flat cars. As part of a fleet renewal plan, CPR decided which part of its fleet to replace and what new cars to acquire. Tr. I, at 205. 28. As part of the fleet renewal for center beam cars, CPR discussed with its largest customers the customers’ needs. CPR’s two top customers, Canfor and Weyerhauser, told CPR that the two primary needs in new cars were: (1) to ensure that the product and the packaging around the product being shipped arrived at its destination in the same condition as it was when it left its origin and (2) to ensure that the cars allowed the people who loaded the cars to do their job safely. Canfor and Weyerhauser are two large lumber shippers. Tr. I, at 206. 29. By early 2000, rail car manufacturers had started making prototypes of dropped deck center beam cars to show to CPR. This allowed CPR to develop and refine its eventual request for quote regarding new rail cars. It also gave CPR the opportunity to ask the potential suppliers to make changes to their designs. Def. Opp. Ex. 6, at ¶¶ 6-10. 30. Four rail car manufacturers— Greenbrier, NSC, Trinity Rail Market Services, and Alstom Transport — each developed and built prototypes of dropped deck center beam cars. A fifth rail car manufacturer, Johnstown America Corporation, declined to build a prototype. It relied on a non-dropped deck center beam car that it had built with Burlington Northern Railway. Tr. I, at 208-09; Tr. II, at 9; Def. Opp. Ex. 6, at ¶¶ 6-10. 31. Trinity showed CPR its prototype for a depressed deck car in the summer of 2000. Greenbrier showed CPR its prototype later that year. NSC showed CPR its prototype sometime after Greenbrier. Alstom was the last company to show CPR its prototype. Tr. I, at 209; Tr. II, at 9; Def. Opp. Ex. 6, at ¶ 9. 32. On July 28, 2000, NSC sent letters to Thrall Car Manufacturing Company and Johnstown America Corporation. On August 7, 2000, NSC wrote to Gunderson. The letters were written by George Lim-bach, an attorney for NSC. These letters stated that NSC was “writing this letter enclosing a copy of the ’575 Patent to make certain [they were] aware of its existence and its ownership by National Steel Car, Inc.” Tr. I, at 113-15; PI. H’rg Ex. 1; PI. Reply Ex. 31; PI. Reply Ex. 7, at 36-37. 33. Near the beginning of 2001, Green-brier’s prototype made a trip to Hamilton, Ontario after being loaded with lumber in Edmonton, Alberta. This prototype, loaded with lumber, entered the United States sometime after the trip to Hamilton. Tr. I, at 210-11. 34. On April 3, 2001, Todd Pafford, a member of CPR’s marketing staff, sent CPR an email in response to a request from CPR’s purchasing department for budget pricing on three types of center beam cars including the dropped deck center beam car. In the email, Mr. Pafford wrote that NSC held the exclusive patent rights to the dropped deck center beam car. Tr. I, at 117-18; PI. Reply Ex. 45. 35. On December 13, 2001, NSC’s then-President, John S. Marinucci, sent á letter to William A. Furman, President of Greenbrier and L. Clark Wood, President of Manufacturing at Gunderson. NSC had learned that Gunderson was manufacturing a depressed center beam car, the GBRX 20003, that would be sold by Green-brier. In the letter, Mr. Marinucci stated “that Gunderson and Greenbrier might wish to obtain a license to manufacture, use, sell, and offer to sell depressed center beam flat cars under one or more of the claims of the ’575 Patent.” Def. Opp. Ex. 13; Def. Opp. Ex. 7, at 32-33; Tr. 115-16. 36. Mr. Wood replied to Mr. Marinuc-ei’s letter on December 20, 2001 saying that the patent had been examined and there was no need to obtain a license. Def. Opp. Ex. 13. 37. There were no internal discussions at NSC about licensing the ’575 Patent to Greenbrier nor was there any licensing discussions between NSC and Greenbrier. Tr. I, at 115-16; PI. Reply Ex. 7, at 36-38. 38. NSC has a policy not to license its patents. It uses its patents to market its products. NSC has never licensed any of its patents, including the ’575 Patent, to any other company or individual. Tr. I, at 116; PI. Reply Ex. 7, at 36-38. 39. On May 21, 2002, CPR issued a Request for Quote (“RFQ”) for an order of 875 depressed center beam flat cars. PI. Mot. Ex. B, at ¶ 6. Greenbrier, NSC, and Trinity, submitted bids. Tr. I, at 208, 212, 220; PI. Mot. Ex. B, at ¶ 7; Def. Opp. Ex. 6, at ¶¶ 12,14; PL Reply Ex. 36. 40. On May 23, 2002, NSC made a presentation to CPR regarding its NSCX 2011 depressed center beam flat car, the physical embodiment of the ’575 Patent. During this presentation, NSC showed CPR a copy of the ’575 Patent. NSC had informed CPR of the ’575 Patent in prior meetings. NSC told CPR of NSC’s patent rights and informed CPR that it intended to protect those rights. Tr. I, at 117-22; PI H’rg Ex. 3, at NSC000428-NSC000429; PI. Mot. Ex. B, at ¶¶ 9-10. 41. Greenbrier, Trinity, and NSC submitted their first bids on the RFQ by June 12, 2002. These three suppliers made presentations to CPR on June 17 and 18, 2002. Then, each company submitted a second bid to CPR by June 26, 2002. Next, each company submitted a third bid to NSC before July 8, 2002. Def. Opp. Ex. 6, at ¶¶ 15-16. [Redacted] 43. On July 8, 2002, Hugh Nicholson, NSC’s Managing Director of Marketing and Sales, sent CPR a letter in response to questions CPR had raised in a July 4, 2002 conference call. In this letter, NSC offered to indemnify CPR in any patent infringement suit related to dropped deck center beam cars if CPR awarded the contract to build dropped deck center beam cars to NSC. NSC also informed CPR that NSC held the ’575 Patent, and it was prepared to protect its interest in the ’575 Patent with whatever legal means necessary. Tr. I, at 121; PI. H’rg Ex. 4, at 2. 44. By July 10, 2002, three rounds of bidding were completed with respect to CPR’s Request for Quote. [Redacted] 45. The third round was the last round of bidding in which NSC was allowed to participate. Taking into account an estimate of cost component savings, CPR calculated the total net cost of each car after the third round bid as [Redacted] if [Redacted] Greenbrier manufactured the cars and [Redacted] if NSC manufactured the cars. [Redacted] Tr. I, at 226-27; PI. Reply Ex. 36. 46. CPR’s Request for Quote requested information other than the price of the car. It requested a warranty that was broader than the warranty asked for by CPR in prior deals. NSC offered CPR a warranty that was broader than NSC’s standard warranty but not as broad the one requested by CPR. Tr. I, 122-23; PI. Reply Ex. 7, at 170-71, 183; PI. Reply Ex. 8, at 129. 47. Another factor in the RFQ was the weight of the rail cars. The maximum weight specified in the RFQ was 64,000 pounds. NSC’s offered car was 65,700 pounds. NSC’s engineers believed that CPR’s targeted weight was not realistic and would compromise the integrity of the design. NSC never stated that it did not have the ability to provide a car to the weight specification that CPR desired. CPR informed NSC of the problems with the weight of the car that NSC submitted in the third round of bidding when CPR told NSC that it was not receiving the bid. Tr. I, at 123-25, 218, 224; PI. Reply Ex. 7, at 183; PI. Reply Ex. 8, at 152; PI. Reply Ex. 37, at NSC000290. 48. NSC was excluded from the fourth round of bidding which was also the last round of bidding. NSC could not submit a revised bid without an express date set by CPR. There was no date or opportunity given to NSC by CPR to allow NSC to revise its third round bid. PI. Reply Ex. 8, at 131, 220-21. 49. On July 29, 2002, CPR informed NSC that its bid had not been accepted. CPR awarded the contract to Greenbrier and is buying Greenbrier’s GBRX 20003. After losing the bid, an NSC executive met with a CPR executive to inform CPR that NSC believed Greenbrier’s flat car infringed the ’575 Patent. Tr. I, at 223; PI. Mot. Ex. B, at ¶¶ 11-13. 50. In CPR’s final rankings, Greenbrier won the bid, Trinity was second, and NSC was third. Tr. I, at 223. 51. In September 2002, CPR and Greenbrier entered into a purchase agreement. The contract for the purchase of the dropped deck center, beam flat cars is between TrentonWorks and 3942503 Canada. The Greenbrier Companies guaranteed the performance of the obligations TrentonWorks has under the contract. CPR guaranteed the performance of the obligations that 3942503 Canada has under the contract. (For convenience, the Court refers to Greenbrier and CPR in discussing the contract instead of TrentonWorks and 3942503 Canada.) PI. Reply. Ex. 16, at CP003435, CP003445-CP003446. 52. Under this agreement, Greenbrier agreed to construct depressed center beam rail cars and CPR agreed to purchase 525 of these rail cars from Greenbrier. The rail cars being purchased are the GBRX 20003. The cars are being manufactured in Canada at Greenbrier’s TrentonWorks facility. Tr. I, at 229; PL Reply Ex. 16, at CP003435-CP003436; PI. Mot. Ex. B, at ¶11. 53. The rail cars subject to the agreement between Greenbrier and CPR are seventy-three foot bulkhead flat cars with center partitions and depressed center lading decks. The cars weigh 64,000 pounds unloaded and are designed for a gross load of 286,000 pounds. PI. Reply Ex. 16, at CP003435, CP003450, CP003451. 54. [Redacted] V. Greenbrier’s Indemnification of CPR 55. [Redacted] 56. [Redacted] 57. [Redacted] 58. [Redacted] 59. [Redacted] VI. CPR’s Use of Dropped Deck Center Beam Cars 60. CPR currently has a fleet of seventy-three foot center beam flat cars. There are 2,900 of these cars in the fleet. Approximately, 2,300 of these cars are leased by CPR to other companies. Approximately, 600 of the cars are owned by companies who ship goods with CPR. Tr. I, at 230; Tr. II, at 10. 61. CPR owns some rail lines in the United States, but it does not own rail lines serving all destinations in the United States. To serve certain United States destinations, CPR partners with railway companies in the United States. CPR’s cars are switched to United States railroads at interchange points. An example of an interchange point is Chicago, IL. Tr. II, at 5-6; PI. Reply Ex. 2, at 50-51, 53-54, 96-97, 228-230; PI. Reply Ex. 9. 62. When the cars reach interchanges, the cars may end up on different trains headed to different destinations. When the cars reach an interchange point, the cars are handed over to another railroad company, and the cars are connected to locomotives owned by other companies. Tr. II, at 13-21; PI. H’rg Ex. 6. 63. When the interchange point is in the United States, the locomotive that pulls the cars after the cars leave the interchange point are owned by United States companies. The CPR locomotive does not continue past the interchange point when CPR does not own the track leaving the interchange point Tr. II, at 13-21; PI. H’rg Ex. 6. 64. CPR intends to use the GBRX 20003 cars that it is buying from Greenbrier in exactly the same way as it uses its current fleet of lumber carrying cars. Center beam cars are rarely used to ship anything other than lumber. Tr. I, at 231-32; Tr. II, at 35; PI. Reply Ex. 2, at 245. 65. In 2001 and the first six months of this year, CPR’s current fleet of lumber carrying cars delivered Canadian lumber to the United States and returned empty to Canada 99.2% of the time. Tr. I, at 234-37; Def. Hr’g Ex. PX 33; Def. Hr’g Ex. PX 34. 66. On the basis of miles, a center beam car in CPR’s fleet spends 43% of its time in Canada and 57% of its time in the United States. Tr. I, at 250. 67. On the basis of days, a center beam car in CPR’s fleet spends 44% of its time in Canada and 56% of its time in the United States. Tr. I, at 250. 68. CPR identified two reasons why the use statistics for the dropped deck center beam cars may be different than the use statistics for the current center beam cars. First, the current cars are all leased, and the lease agreements generally require the lessors to perform maintenance on the cars. Should CPR own the new cars, it will want to perform maintenance in its system. Second, depending on demand, the cars may have some down time where the cars will be stored in Canada. Currently, demand has met or exceeded supply resulting in no storage. If there is a point where supply exceeds demand, then there will be a need for storage. Tr. I, at 251-52; Tr. II, at 36. 69. [Redacted] percent of CPR’s lumber shipping involves either a trip between a Canadian and United States destination or between two United States destinations. [Redacted] 70. [Redacted] 71. The [Redacted] dropped deck center beam cars are [Redacted] more than the [Redacted] cars of any type that CPR needs to make its deliveries of lumber between Canadian destinations. CPR will not receive at least [Redacted] of the dropped deck center beam cars until [Redacted] Tr. II, at 44; PI. Reply Ex. 16, at CP003470. 72. [Redacted] 73. CPR’s contracts with Canfor and Weyerhauser call for CPR to purchase dropped deck center beam flat cars and not standard center beam flat cars. Tr. II, at 11. 74. [Redacted] 75. Canfor and Weyerhaeuser intend to purchase additional dropped deck center beam cars from Greenbrier for use by CPR to serve the lumber shippers’ customers. PI. Reply Ex. 2, at 246; PI. Reply Ex. 14 at CP002015; PL reply Ex. 42, at 2. 76. Exported Canadian lumber supplies 30% of the need for lumber in the United States. There is not a need for American lumber to be shipped into Canada. Tr. I, at 230-31. 77. When the center beam ears are used to ship lumber, the cars are on trains with other cars shipping other commodities. Generally, there is one car or a few cars carrying lumber on a train. The lumber cars are on trains with other cars that all are going to different destinations. Tr. II, at 13-21; PI. H’rg Ex. 6. 78. Rail car owners are entitled to a depreciation allowance under United States tax laws. The depreciation is allowed at certain rates called MACRS. The depreciation benefits are available if the cars are used predominantly inside of the United States. Tr. II, at 30-31; 26 U.S.C. § 168(g); PI. Reply Ex. 3, at 203-04. 79. CPR pays taxes in the United States. It earns revenue in the United States. It also owns railways in the United States. Tr. II, at 30; PI. Reply Ex. 2, at 155-56, 370-71; PI. Reply Ex. 9. 80. [Redacted] 81. [Redacted] 82. Greenbrier has offered for sale and sold the GBRX 20003 cars to Weyerhau-ser, Canfor, and TTX. Weyerhauser is a United States company. TTX is a large leasing company based in Chicago, Illinois. PI. Reply Ex. 3, at 159; PL Reply Ex. 13, at GB006804, GB000139. VII. Ownership of Dropped Deck Center Beam Cars 83. CPR does not own any of the standard seventy-three foot center beam cars that it currently uses. All of these cars are leased. Tr. I, at 230. 84. No decision has been made about the ownership structure of the dropped deck center beam flat cars. There are three options for CPR in terms of ownership of the dropped deck center beam flat cars: (1) CPR could own the cars outright; (2) CPR could have a capital lease where the lessor puts up the amount to buy the car initially and then CPR repays both the principal and interest; or (3) CPR could have a longer term operating lease. Tr. II, at 37-39. VIII. CPR’s Receipt of the Accused Rail Cars 85. The delivery schedule for the rail cars as provided in the agreement required Greenbrier to deliver: [Redacted] 86. The cumulative number of cars that 3942503 Canada would have received under this contract by the week of: [Redacted] IX. Impact on NSC of Not Receiving the CPR Contract 87. There are three major manufacturers of rail cars in North America: Trinity-Thrall Industries; The Greenbrier Companies; and NSC. Pl. Mot. Ex. B, at ¶ 14. 88. In the past few years, there has been high demand for rail cars. In these years, total sales for rail car manufacturers ranged from 60,000 to 80,000 rail cars per year. Pl. Mot. Ex. B, at ¶ 15. 89. Recent orders for rail cars have been lower. Industry analysts have fore-casted that about 21,000 railroad cars will be sold in 2002 and 33,000 cars in 2003. Pl. Mot. Ex. B, at ¶ 16. 90. NSC does not make certain types of rail cars. Because of this, it is only able to compete for 11,000 of the rail cars to be sold in 2002 and 16,000 of the rail cars to be sold in 2003. Pl. Mot. Ex. B, at ¶ 17. 91. The market share for Trinity-Thrall Industries is a majority of the market. Pl. Mot. Ex. B, at ¶ 14. 92. NSC’s market share for the year 2002 is 12%, and NSC built [Redacted] rail ears in 2002. It projected that it would have a market share of 20% for 2002. NSC has also projected a 20% market share for 2003. Tr. I, at 128-129; Pl. Reply Ex. 7, at 84; Pl. Reply Ex. 40, at NSC004779. 93. Greenbrier has a 38% market share for the year 2002. Greenbrier also has a 5,000 plus backlog of cars. In a press release dated October 28, 2002, Greenbrier attributed part of its success to receiving orders from CPR and Canfor for GBRX 20003 cars. Pl. Reply Ex. 42, at 2. 94. Greenbrier’s October 28, 2002 press release states that the GBRX 20003 is the first commercially available center partition car to have a depressed floor. Green-brier also mentioned in the press release that it was the first company to receive orders for this type of rail car and that its design is superior to other alternatives available in the market. Pl. Reply Ex. 42, at 2. 95. NSC factored being awarded the bid from CPR for the dropped deck center beam flat cars into its market forecast. Tr. I, at 126. 96. NSC was attempting to be the first to market with the dropped deck center beam flat car. Being the first to market would give NSC product recognition, product innovation, and association with the dropped deck center beam flat car. Tr. 1, at 126-27. 97. NSC has received orders for other cars since losing the bid for the dropped deck center beam cars. The orders have been for box cars and well cars. None of the orders are for dropped deck center beam flat cars. Tr. I, at 127-28, 132. 98. The largest order that NSC has received since losing the NSC bid was for 500 cars. Tr. I, at 128. 99. Rail car manufacturers use the term “backlog” as a measure of financial health and future stability of the company. Backlog is the orders that a company has pending less the cars that are shipped. As cars are shipped, the backlog decreases. As orders are received, backlog increases. NSC’s current backlog is 1,640 cars. Tr. I, at 129. 100. At the time the bid was awarded, NSC had a backlog of 642 cars. Using that number, the bid would have increased NSC’s backlog by 140%. From NSC’s current backlog, the bid would increase NSC’s backlog by approximately 50%. Tr. I, at 130. 101. NSC’s current lines include a line building eighty-nine foot flat cars, a line building [Redacted] well car units, and a line building approximately [Redacted] box cars. NSC has also received an additional order from TTX for 500 intermodal double stacked cars. Tr. I, at 157-59, 162; PL Hr’g Ex. 5. 102. The number of employees needed by NSC varies from week to week depending on what rail car orders are being filled and how many rail cars are being produced in a given week for that order. PI. H’rg Ex. 5; PI. Reply Ex. 40. 103. NSC has prepared projections on September 17, 2002 and October 24, 2002 of its weekly labor requirements for the time period from the week of November 8, 2002 to June 9, 2003. This is the time period in which NSC would have been building dropped deck center beam cars if it had received CPR’s order for these cars. Tr. I, at 130-33; PI. H’rg Ex. 5; PI. Reply Ex. 40. 104. The September 17, 2002 projection included the labor requirements for a line building [Redacted] Tr. I, at 130-33; PI. Reply Ex. 40. 105. The October 24, 2002 projection reflects the labor requirements included in the September 17, 2002 projection. It also includes the labor requirements for an order of [Redacted] that was not reflected in the September 17, 2002 projection. Tr. I, at 130-33; PL H’rg Ex. 5; Pl. Reply Ex. 40. 106. The October 24, 2002 projection also includes the labor it would have required if it had received CPR’s order for dropped deck center beam cars. NSC calculated the number of employees needed for CPR’s order based on the order being for 875 dropped deck center beam flat cars. The projection does not include the labor requirements for the order NSC received from TTX for 500 intermodal double stacked cars. Tr. I, at 130-33, 157-59; Pl. H’rg Ex. 5; Pl. Reply Ex. 40. 107. Using the October 24, 2002 projection, the weekly labor requirement for NSC’s other three lines building rail cars ranges anywhere between [Redacted] employees during the time that NSC would have built the dropped deck center beam cars. The exact number of employees needed depends on how many of the lines would be operating in a given week and how many rail cars each line was to produce in a given week. Tr. I, at 130-33; Pl. H’rg Ex. 5. 108. The weekly labor requirement for NSC’s dropped deck center beam line would have ranged anywhere between [Redacted] employees depending on how many dropped deck center beam cars were to be produced in a given week. Tr. I, at 130-33; PL H’rg Ex. 5. 109. The different lines building rail cars at NSC share certain services. If NSC was building dropped deck center beam cars, the projections for how many total employees it would need to build all of its rail car lines would take into account that some employees were performing services shared by all of NSC’s rail car lines. Tr. I, at 131-32. 110. Using the October 24, 2002 projection, the difference in NSC’s weekly labor requirements during the time it would have built the dropped deck center beam cars ranges from [Redacted] employees. Tr. I, at 130-133; Pl. Hr’g Ex. 5. X. ’575 Patent A. Overview 111. The ’575 Patent is for a railway flat car that has a depressed load carrying portion to reduce the center of gravity of the car. The flat car has a side sill assembly with an upper end section that has floor portions and a lower intermediate section for supporting the depressed load carrying portion. The depressed portion has an overall width that is less than the upper floor portions. The car also has an intermediate longitudinal center sill merging with the end draft sills. These end draft sills have a larger width than the center sill. Pl. Mot. Ex. A. 112. The preferred embodiment is for a depressed center beam flat car supported by a pair of truck assemblies and with a center beam assembly. The center beam assembly extends along the car’s longitudinal centerline above a longitudinally extending center sill having an upper surface. There is a bulkhead assembly mounted on each end of the car above the draft sill assembly. Pl. Mot. Ex. A, at 3, 5. 113. The depressed floor section in the preferred embodiment may be approximately 75% of the between bulkhead length of the car. The depressed floor section lowers the center of gravity of the car, and this improves stability. Pl. Mot. Ex. A, at 4. 114. The depressed floor section comprises a plurality of floor sheets. These sheets are supported by a plurality of spaced cross bearer assemblies. The floor sheets carry a plurality of upper tapered pieces on which the commodity to be transported may be arranged. Pl. Mot. Ex. A, at 4. 115. The depressed floor section’s reduced overall width as compared to the width of the upper floor sheets allows commodities of standard width to be carried on the depressed floor and comply with regulations requiring clearance. The reduced width is due to the reduced horizontal width of the center sill as compared to the draft sills. Pl. Mot. Ex. A, at 4-5. 116. There is a side sill transition assembly in the preferred embodiment that includes a welded vertical side sill tie plate having an affixed triangular shaped transition tie plate gusset disposed under the upper side sill sections. Pl. Mot. Ex. A, at 4. 117. The side sill transition assembly maintains the structural integrity between upper side sill end sections and the depressed side sill sections. Pl. Mot. Ex. A, at 4. 118. End sections of the side sill assemblies are oriented on an axis vertically above the longitudinal axis of the intermediate side sill section. The longitudinal axis of the intermediate side sill section is laterally spaced inward toward center sill by a distance less than the axis of end side sill sections. Pl. Mot. Ex. A, at 4. B. Claims 119. NSC asserts that the GBRX 20003 infringes, both literally and under the doctrine of equivalents, claims 1, 2, 3, 5, 6, 7, 8, 9, 20, 21, 22, and 23 of the ’575 Patent (the “asserted claims”). The asserted claims read as follows: 1. A flat car supported on end truck assemblies comprising: a body formed by a longitudinally extending center sill, a draft sill attached to each end of said center sill, and a pair of bulkheads mounted at each end, side sill means disposed on opposite sides of said center sill on said body, a vertical center beam assembly extending upward from said center sill, said vertical center beam assembly including an upper center sill extending parallel above said center sill between said bulkheads, said upper center sill being supported by a plurality of columns carried by at least said center sill, and floor means being arranged between said opposite side sill means, said floor means having end floor sections lying in a first generally horizontal plane and an intermediate depressed floor section disposed in a second generally horizontal plane lying below said first horizontal plane, said side sill means includes a pair of side sill assemblies disposed on opposite sides of said center sill, each of said side sill assemblies includes a pair of upper end sections extending along an upper axis for respectively supporting said end floor sections and an intermediate section extending along a lower axis disposed below said first axis for supporting said intermediate depressed floor section. 2. A flat car supported on end truck assemblies comprising: a body formed by a longitudinally extending center sill, a draft sill attached to each end of said center sill, and a pair of bulkheads mounted at each end, side sill means disposed on opposite sides of said center sill on said body, a vertical center beam assembly extending upward from said center sill, said vertical center beam assembly including an upper center sill extending parallel above said center sill between said bulkheads, said upper center sill being supported by a plurality of columns carried at least 'said center sill, and floor means being arranged between said opposite side sill means, said floor means having end floor sections lying in a first generally horizontal plane and an intermediate depressed floor disposed in a second generally horizontal plane lying below said first horizontal plane, a plurality of cross bearer members extending between said side sill means on said opposite sides of said center beam, said cross bearer members acting to support said intermediate depressed floor section, and said plurality of cross bearer members are supported beneath said center sill. 3. The flat car according to claim 1 wherein said lower axis extends parallel to said center sill, said end section of said side sill assemblies respectively being disposed along said upper axis in parallel relationship to said lower axis. 5. The flat car according to claim 1 wherein said side sill means includes side sill transition means for joining said end sections of each of said side sill assemblies to said intermediate section. 6. The flat car according to claim 5 wherein said side sill means includes side sill transition means for joining said end sections of each of said side sill assemblies to said intermediate section. 7. The flat car according to claim 6 wherein said pair of vertical members comprise a pair of vertical plates having a surface affixed to said end sill sections and a surface affixed to said intermediate section. 8. The flat car according to claim 1 further comprising a plurality of cross bearer members extending between said side sill means on said opposite sides of said center beam, said cross bearer members acting to support said intermediate depressed floor section. 9. The flat car according to claim 8 wherein said plurality of cross bearer members are supported beneath said center sill. 20. A flat car supported on truck assemblies and having vertical column assemblies comprising: a body formed by a longitudinally extending center sill, a draft sill mounted at each end of said center sill, and a pair of bulkheads disposed above said draft sills, a pair of upper floor sections being respectively carried on said body adjacent said bulkheads and having upper surfaces lying in a first plane, an intermediate floor section carried by said body and extending between said pair of upper floor sections, said intermediate floor section forming an upper surface lying in a plane disposed below said first plane, said upper floor sections are symmetrically arranged adjacent said center sill, and said ‘intermediate floor’ section is disposed below said center sill. 21. The flat car according to claim 20 further comprising a plurality of cross members carried by said center sill, a pair of side sill assemblies attached to said cross members on opposite sides of said center sill. 22. The flat car according to claim 20 wherein said intermediate floor section is carried by said cross members. 23. The flat car according to claim 1 wherein said upper end sections have a U-shaped cross sectional configuration. Pl. Mot. Ex. A, at 5-6, 8. C. Prosecution History 120.On June 9, 1989, while the prosecution of the ’575 Patent was ongoing, Mr. Dominguez and Mr. Flores cited prior art in an Information Disclosure Statement they submitted to the PTO. With this statement, the inventors submitted a copy of the patents they cited in the Information Disclosure Statement. These patents were: (1) United States Patent Number 3,713,400 issued on January 30, 1973 (“Teoli ’400 Patent”); (2) United States Patent Number 3,814,028 issued on June 4, 1974 (“Adler ’028 Patent”); (3) United States Patent Number 3,841,236 issued on October 15, 1974 (“Hammonds ’236 Patent”); (4) United States Patent Number 4,024,821 issued on May 24, 1977 (“Yang ’821 Patent”); (5) United States Patent Number 4,079,676 issued on March 21, 1978 (“Miller ’676 Patent”); (6) United States Patent Number 4,236,459 issued on December 2, 1980 (“Teoli ’459 Patent”); (7) United States Patent Number 4,254,714 issued on March 10, 1981 (“Heap ’714 Patent”) (8) United States Patent Number 4,331,083 issued on May 25, 1982 (“Landregan ’083 Patent”); (9) United States Patent Number 4,361,097 issued on November 30, 1982 (“Jones ’097 Patent”); and (10) United States Patent Number 4,408,542 issued on October 11, 1983 (“Heap ’542 Patent”); Pl. H’rg Ex. 7, at NSC000223-NSC000225; Pl. Reply Ex. 20, at NSC000223-NSC000225. 121. The Information Disclosure Statement also includes what Mr. Dominguez and Mr. Flores believed to be the teachings of the referenced patents. Pl. Reply Ex. 20, at NSC000223-NSC000225. 122. Two of the patent references cited in the Information Disclosure Statement were for flat cars. Other types of cars in the patent references cited in the Information Disclosure Statement were for a specialized boxcar, a mine car, and gondola cars. Tr. II, at 244-45. 123. The Adler ’028 Patent was in front of the Patent Examiner. This car had a dropped center section and offset side sills. Tr. II, at 292-93; Pl. Mot. Ex. A. 124. The Adler ’028 Patent refers to the Udstad patent: “Prior art railway vehicles which have included a depressed floor are illustrated by the U.S. Pat. No. 2,996,020 to S.F. Udstad which provides a vehicle with a depressed floor extending between the spaced trucks and extending on each side of a through center sill, the vehicle intended for the transport of automobiles vertically positioned in the car and attached to the pivotable side wall panels.” Pl. Reply Ex. IT, at 1. 125. The initial patent application filed by Mr. Dominguez was for a railway flat car with a depressed load carrying portion to reduce the center of gravity of the car. The car included a side sill assembly having and upper end section with floor portions and a lower intermediate section to support the depressed load carrying portion. The depressed portion had an overall width less than the upper floor portions. The car also had an intermediate longitudinal center sill that merges with end draft sills having a larger width than the center sill. Pl. H’rg Ex. 6, at NSC000188. 126. On December 13, 1989, Mr. Dominguez’s initial patent application was rejected. The reasons given by the examiner were that claims 23, 24, and 25 of Mr. Dominguez’s initial patent application were clearly anticipated by the Baker ’887 Patent and claims 1-8 and 15-17 of the initial patent application were rejected as being obvious from the Landregan ’083 Patent in light of the Baker ’887 Patent. Pl. H’rg Ex. 6, at NSC000228-NSC000229. 127. The Landregan ’083 Patent did not include a vertical center beam extending longitudinally the length of the car. The Baker ’887 Patent disclosed a center beam railroad freight car. Pl. H’rg Ex. 6, at NSC000229. 128. The Patent Examiner concluded that in light of the teachings of the Baker ’887 Patent, it would have been obvious to a person of ordinary skill in the art to have put a vertical center beam that extended longitudinally the length of the car in the Landregan ’083 Patent. Inserting this center beam would provide greater stability during loading and unloading and during transport of the load. Pl. H’rg Ex. 6, at NSC000229. 129. On March 13, 1990, Mr. Dominguez submitted an amended application for a patent for his rail car in response to the December 13, 1989 rejection. Pl. H’rg Ex. 6, at NSC000236. 130. In the remarks accompanying the amended application, Mr. Dominguez explained that the amended claim 1 was for a depressed floor section supported by intermediate side sill sections that extend along an axis below the upper sections. Pl. H’rg Ex. 6, at NSC000243. 131. Mr. Dominguez explained that the structure in the Landregan ’083 Patent was not practical in the type of center beam car that was the subject of Mr. Dominguez’s application because it could not provide the high strength characteristics possible in Mr. Dominguez’s claimed invention. Pl. H’rg Ex. 6, at NSC000243. 132. The claimed invention used a continuous center sill and offset sections of side sills. The Landregan ’083 Patent used a center sill dropped downward at its depressed center floor section and a continuous side sill. Pl. H’rg Ex. 6, at NSC000243. 133. Mr. Dominguez further explained that the depressed center sill section of the Landregan ’083 Patent would not be satisfactory with a center beam because modifications would have to be made to the Landregan ’083 Patent to provide adequate support for columns in which high strength was needed. Pl. H’rg Ex. 6, at NSC000243. 134. Additionally, columns in the Lan-dregan ’083 Patent would have to be lengthened to apply the teachings of a center column car like that in the claimed invention. Pl. H’rg Ex. 6, at NSC000243. 135. Mr. Dominguez explained that the Baker ’887 Patent did not cure the shortcomings of the Landregan ’083 Patent. The Baker ’887 Patent showed a center beam car having a continuous center beam without a depressed floor section. The side sills in the Baker ’887 Patent are continuous along a common axis. Pl. H’rg Ex. 6, at NSC000244. 136. In his remarks in the amended application, Mr. Dominguez stated that neither the Landregan ’083 Patent nor the Baker ’887 Patent make a suggestion of teaching how a continuous center sill could be combined with the car covered in the Landregan ’083 Patent to produce the results of Mr. Dominguez’s invention. Pl. H’rg Ex. 6, at NSC000244. 137. The amended application for a patent was allowed by the Patent Examiner on April 10, 1990. Pl. H’rg Ex. 6, at NSC000249. 138. The ’575 Patent was issued on August 28,1990. Pl. Mot. Ex. A. 139. In issuing the ’575 Patent, the Patent Examiner cited to the following patents: (1) United States Patent Number 3,713,400 issued in January 1973 (“Teoli ’400 Patent”); (2) United States Patent Number 3,814,028 issued in June 1974 (“Adler ’028 Patent”); (3) United States Patent Number 3,841,236 issued in October 1974 (“Hammonds ’236 Patent”); (4) United States Patent Number 4,024,821 issued in May 1977 (“Yang ’821 Patent”); (5) United' States Patent Number 4,079,676 issued in March 1978 (“Miller ’676 Patent”); (6) United States Patent Number 4,236,459 issued in December 1980 (“Teoli ’459 Patent”); (7) United States Patent Number 4,254,714 issued in March 1981 (“Heap ’714 Patent”); (8) United States Patent Number 4,331,083 issued in May 1982 (“Lan-dregan ’083 Patent”); (9) United States Patent Number 4,361,097 issued in November 1982 (“Jones ’097 Patent”); (10) United States Patent 1 Number 4,408,542 issued in October 1983 (“Heap ’542 Patent”); (11) United States Patent Number 4,543,887 issued in October 1985 (Baker ’887 Patent”); (12) United States Patent Number 4,681,041 issued in July 1987 (“Harris ’041 Patent”); and (13) United States Patent Number 4,753,175 issued in June 1988 (“Harris T75 Patent”). Pl. Mot. Ex. A. 140. The PTO examiner did not cite the Udstad ’020 Patent, the Wagner ’031 Patent, or the Miller ’399 Patent when issuing the ’575 Patent. Pl. Mot. Ex. A. 141. The Teoli ’400 Patent, the Adler ’028 Patent, the Hammonds ’236 Patent, the Yang ’831 Patent, the Miller ’676 Patent, the Teoli ’459 Patent, the Heap ’714 Patent, the Landregan ’083 Patent, the Jones ’097 Patent, and the Heap ’542 Patent were cited in both the Information Disclosure Statement provided by Mr. Dominguez and Mr. Flores and by the Patent Examiner in issuing the ’575 Patent. Pl. Mot. Ex. A; Pl. Reply Ex. 20, at NSC000223-NSC000225. 142. The Jones ’097 Patent and the Landregan ’083 Patent, which were cited by the Examiner in issuing the ’575 Patent, also cite the Miller ’399 Patent. Pl. H’rg Ex. 7, at NSC000124, NSC000137. XI. Udstad ’020 Patent 143. United States Patent Number 2,996,020 (the “Udstad ’020 Patent”) was issued to Sigvald F. Udstad on August 15, 1961, and was assigned to ACF Industries, Incorporated. Pl. Reply Ex. ID, at 1. 144. The patent was for a railway car that would transport automobile bodies or other large or heavy equipment. The railway car was a center sill carrying car that had a roof directly supported by the center sill. Additionally, the extreme side of the underframe carries the weight of the lading. Means are provided for transmitting the weight of the lading to the center sill to relieve the underframe sides and to dissipate the torsion loads in the car frame through the center sill without overstrain-ing the car. Pl. Reply Ex. ID, at 1. 145. Additional features of the Ud-stad ’020 Patent include longitudinal axes that are vertically oriented to utilize as much space as possible, roof and side wall protection against weather in a system allowing for easy access of the materials on board, a longitudinally disposed centrally positioned center sill girder structure, and cross ties connected at their ends by the side sills. The center sill girder structure extends upwardly to support the car roof and removable lading bearing side wall sections are provided. In the preferred embodiment of the invention, the center sill girder and low lying side sills transmit the lading load from the sides of the car to the center sill structure. This construction also alleviates longitudinal torsion loads in the underframe by directing the loads to the center sill structure. Pl. Reply Ex. ID, at 1. 146. None of the claims of the Ud-stad ’020 Patent use the terms: (1) flat car, (2) bulkhead, (3) center beam, (4) floor, or (5) side sill transition means. Pl. Reply Ex. ID, at 5-8. XII. Other Patents and Drawings Following are findings of fact with respect to certain patents and drawings: (1) cited in the ’575 Patent; (2) cited in the Information Disclosure Statement that accompanied the application for the ’575 Patent; or (3) relied upon by the parties. A. Wagner ’031 Patent 147. United States Patent Number 3,734,031 (the “Wagner ’031 Patent”) was issued to Ross W. Wagner on May 22, 1973, and was assigned to the Thrall Car Manufacturing Company. Pl. Reply Ex. in. 148. This patent was for a center beam railroad car. The patent covered a car with a lightweight center sill and side sills, crossbearers supporting the floor, and a vertical center beam joined at its bottom to the center sill and extending longitudinally the length of the car between the bulkheads at each end of the car. Pl. Reply Ex. 1H. 149. In this car, the center beam has a top structure for aiding in transferring compressive forces between the bulkheads. The center beam’s top structure also has a wide, mostly horizontal metal plate chord joined centrally to it and extending for the length of the top of the center beam. Pl. Reply Ex. 1H. 150. There is also a horizontal structural stiffening member joined to each edge of the wide chord and extending the length of the center beam. The stiffening members project upwardly to define opposing walls of a trough having the wide chord as a the bottom. The wide chord and stiffening members resist compressive and lateral forces applied to them. Pl. Reply Ex. 1H. B. Adler ’028 Patent 151. United States Patent Number 3,814,028 (the “Adler ’028 Patent”) was issued to Franklin P. Adler on June 4, 1974, and was assigned to Pullman Transport Leasing Company. Pl. Reply Ex. IT. 152. The patent was for a freight car with depressed center section. The patent covered a freight car having end doors that was adopted to carry large, bulky commodities. The car has a depressed center section extending between the spaced trucks. This permits the stacking of large commodities which would ordinarily not be permissible because of restrictive car height limitations. The freight car also includes a trolley mounted car that permits rapid loading and unloading of cargo. Pl. Reply Ex. IT. 153. The Adler ’028 Patent is assigned to the same company, Pullman, as the Miller ’399 Patent. The two patents are both from the mid-1970s. Pl. Reply Ex. IT; Pl. Reply Ex. IV. 154. In addition to other elements, the Adler ’028 Patent discloses end truck assemblies, end walls, a center sill, upper floor sections, an intermediate depressed floor section, a transition section, multiple cross bearers, and side sills. These elements are in the Miller ’399 Patent. Pl. Reply Ex. 1, at ¶ 55; Pl. Reply Ex. IT; Pl. Reply Ex. IV. C. Miller ’399 Patent 155. United States Patent Number 3,964,399 (the “Miller ’399 Patent”) was issued on June 22, 1976 to Roy W. Miller, and was assigned to Pullman Incorporated. Pl. Reply Ex. IV. 156. This patent was for a railway gondola car. The car included a depressed floor section. There were underframe cross members placed below the center sill. These cross members extended completely across the width of the car. The opposite ends of the gondola car are provided with elevated floors. The car includes a simplified and reinforced construction for minimizing structural damage to the car during operation. Pl. Reply Ex. IV. D. Yang ’821 Patent 157. United States Patent Number 4,024,821 (the “Yang ’821 Patent”) was issued on May 24, 1977 to Tunghan Yang, and was assigned to Pullman Incorporated. Pl. Reply Ex. 1R. 158. This patent was for “unit train coal car tension strips to prevent car body from twist.” Pl. Reply Ex. 1R. 159. The patent covers a gondola type railway car that includes a pair of laterally crossed elongated braces. The braces couple the corner caps to the car floor. The braces extend downwardly and longitudinally inward and substantially across the car. The braces restrain lateral and longitudinal deflection of the car walls and thereby substantially reduce fatigue and fracture of the corner caps and walls. The braces effectively oppose the loads imposed upon the walls. The braces also do not obstruct the functionality of the car and do not materially encroach upon the usable space. Pl. Reply Ex. 1R. 160. The Yang ’821 Patent is held by the same company, Pullman, as the Miller ’399 Patent. The Yang ’821 Patent was filed after the ’399 Patent. Pl. Reply Ex. 1R; Pl. Reply Ex. IV. 161. In addition to other elements, the Yang ’821 Patent discloses end truck assemblies, end walls, a center sill, upper floor sections, an intermediate depressed floor section, a transition section, multiple cross bearers, and side sills. These same elements are in the Miller ’399 Patent. Pl. Reply Ex. 1, at ¶ 54; Pl. Reply Ex. 1R; Pl. Reply Ex. IV. E.Miller ’676 Patent 162. United States Patent Number 4,079,676 (the “Miller ’696 Patent”) was issued to Roy W. Miller on March 21,1978, and was assigned to Pullman Incorporated. Pl. Reply Ex. IP. 163. The patent was for a freight car body reinforcement. This car is a high volume railway gondola car suited for high speed rail operations. It includes a pair of rigid elongated tension and compression braces at each end of the car. These braces couple the corner caps of the car walls to the minimum vertical flexure portions of the car floor located immediately above the car center bearing assemblies. Pl. Reply Ex. IP. 164. The Miller ’676 Patent was invented by Roy Miller who also invented the Miller ’399 Patent. Both patents are assigned to the same company- — Pullman. The Miller ’676 Patent was filed a year later than the ’399 Patent. The Miller ’676 Patent cites the Miller ’399 Patent. Pl. Reply Ex. IP; Pl. Reply Ex. IV. 165. In addition to other elements, the Miller ’676 Patent discloses end truck assemblies, end walls, a center sill, upper floor sections, an intermediate depressed floor section, a transition section, multiple cross bearers, and side sills. These elements are also disclosed in the Miller ’399 Patent. Pl. Reply Ex. 1, at ¶¶ 52-53; Pl. Reply Ex. IP; Pl. Reply Ex. IV. F. Baker ’887 Patent 166. United States Patent Number 4, 543, 887 (the “Baker ’887 Patent”) was issued to William R. Baker on October 1, 1985, and was assigned to Thrall Manufacturing Company. Pl. Reply Ex. IK. 167. This patent was for a center beam railroad freight car. This car included a body supported at each end by wheel containing trucks and a center beam extending longitudinally the length of the car between bulkheads at each end of the car. Pl. Reply Ex. IK. 168. The center beam had a center sill, a top sill parallel to and spaced above the center sill, and a plurality of vertical spaced apart columns rigidly connected at their lower ends to the center sill and at their upper ends to the top sill. Pl. Reply Ex. IK. 169. At each end of the car, there is a vertical plate extending from the center sill to the top sill and from the bulkhead at that end inwardly along the center sill. The vertical plate is joined to the center sill, top sill, and bulkhead, and a plurality of the columns. Pl. Reply Ex. IK. 170. The Baker ’887 Patent is assigned to the same company, Thrall, as the Wagner ’031 Patent. Both patents disclose the same features of a center beam flat car. The Baker ’887 Patent was filed thirteen years after the Wagner ’031 Patent. The Baker ’887 Patent discloses a later generation of the same center flat beam car contained in the Wagner ’031 Patent. Pl. Reply Ex. 1, at ¶¶ 44^-45; Pl. Reply Ex. 1H; Pl. Reply Ex. IK. 171. In addition to other elements, the Baker ’887 Patent discloses end truck assemblies, bulkheads, a center sill, U-shaped side sills, a center beam, a floor, and multiple cross bearers. These elements are also disclosed in the Wagner ’031 Patent. Pl. Reply Ex. 1, at ¶¶ 44-45; Pl. Reply Ex. 1H; Pl. Reply Ex. IK. G. Harris ’Obi Patent 172. United States Patent Number 4,681,041 (the “Harris ’041 Patent”) was issued to William Harris on July 21, 1987, and was assigned to Thrall Car Manufacturing Company. Pl. Reply Ex. 1M. 173. The invention that was the subject of the patent a lightweight center beam railroad car. This car had a body supported at each end by wheel-containing trucks. Pl. Reply Ex. 1M. 174. There is also a vertical center beam extending the length of the car between bulkheads at each end of the car. The center beam has a center sill, a top sill parallel to and spaced above the center sill, and a plurality of vertical spaced apart columns. Pl. Reply Ex. 1M. 175. The columns are connected at their lower ends to the center sill, at their upper ends to the top sill, and from the respective bulkhead at that end inwardly along the center sill. PL Reply Ex. 1M. 176. There are vertical plates in the car that are joined to the top sill, center sill, bulkhead, and a plurality of the columns. The opposed facing ends of the vertical plates are spaced from each other at a distance of at least 60% of the length of the car between the bulkheads. Between the facing end of each vertical plate and the car length center, there is at least one bracing bar extending diagonally downwardly toward the car length center, from the top sill to the center sill. PI. Reply Ex. 1M. 177. When the car is subjected to impact loads the bars on one side of the car center are placed in tension and the bars on other side of the car center are placed in compression. PI. Reply Ex. 1M. 178. The Harris ’041 Patent discloses a later generation of the same center flat beam car contained in the Wagner ’031 Patent. PI. Reply Ex. 1, at ¶¶ 46; PI. Reply Ex. 1M. 179. In addition to other elements, the Harris ’041 Patent discloses end truck assemblies, bulkheads, a center sill, U-shaped side sills, a center beam, a floor, and multiple cross bearers. These elements are also disclosed in the Wagner ’031 Patent. PI. Reply Ex. 1, at ¶¶ 46; PI. Reply Ex. 1M. H