Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING THE PARTIES’ PRE-TRIAL MOTIONS BENNETT, Chief Judge. TABLE OF CONTENTS A plethora of pre-trial motions confronts the court in this patent infringement action. Although the motions are cast in terms of the admissibility of evidence, several of them are in reality motions for determination, as a matter of law, of key issues in the litigation. Consequently, this ruling on “pre-trial” matters addresses issues as involved and contentious as any summary judgment ruling and has at least as much likelihood as any summary judgment ruling to be outcome determinative on some claims and issues. I. INTRODUCTION This patent infringement action between plaintiff Engineered Products Company (EPC) and defendant Donaldson Company (Donaldson) arises from Donaldson’s creation and sale of two air filter indicator devices: the Air Alert, sold from 1997 to 1999, and the Next Generation Air Alert (NG Air Alert), sold from 1999 through the present. EPC contends that Donaldson’s devices infringe EPC’s U.S. Patent Number 4,445,456 (the ’456 patent), issued on May 1, 1984, and expired in 2001, for a mechanical air filter restriction indicator with a lock-up feature. Because the court has already described the procedural and factual context to this litigation in some detail in prior published rulings, see Engineered Prods. Co. v. Donaldson Co., Inc., 165 F.Supp.2d 836 (N.D.Iowa 2001) (EPC I) (decision by former District Judge, now Circuit Judge, Michael Melloy, following a “Markman hearing”); Engineered, Prods. Co. v. Donaldson Co., Inc., 225 F.Supp.2d 1069 (N.D Jowa 2002) (EPC II) (ruling by the undersigned on the defendant’s motion for summary judgment on defense of invalidity for obviousness-type double patenting); Engineered Prods. Co. v. Donaldson Co., Inc., 290 F.Supp.2d 974 (N.D.Iowa 2003) (EPC III) (ruling by United States Magistrate Judge Paul A. Zoss on the parties’ cross-motions regarding plaintiffs counsel’s alleged conflict of interest and appearance of impropriety), the court will not reiterate all of that background information here. However, the court finds that it would be helpful to an understanding of the various discussions of the claimed invention in the ’456 patent to include Figures 3 and 4 from the ’456 patent, which show the claimed air filter indicating device in infold and outfold positions. The court also finds it helpful to reiterate that the present dispute was prompted, at least in part, by a decision of General Motors (GM) in the mid-1990s to add a progressive air filter restriction indicator to its light truck platform, the GMT-800 platform. This platform includes large passenger vehicles, such as SUV's, and hence, was expected to see enormous growth. EPC and Donaldson, the only domestic manufacturers of progressive air filter restriction indicators, competed for the contract to provide the required indicators. Donaldson eventually updated its product, at considerable expense, to produce the Donaldson Air Alert. Based on that upgraded design, Donaldson was awarded the GMT-800 contract. The Air Alert was manufactured and sold from 1997 to 1999, at which time it was replaced by the NG Air Alert. However, on November 20, 1998, EPC filed the present lawsuit alleging that the Air Alert and NG Air Alert infringe EPC’s ’456 patent. Trial in this matter is set to begin on April 26, 2004, and will likely last the better part of three weeks. A total of seventeen pretrial motions are now before the court, some involving overlapping issues, filed over a period of several months. The approach of trial previously scheduled for February 2, 2004, prompted the filing of the first wave of pre-trial motions. When the trial was continued to April 26, 2004, the court established a briefing schedule on several of those motions to be completed by the end of March. However, a second wave of pre-trial motions was filed on March 26, 2004, one month before the rescheduled trial date. Finally, with the replies to the second wave of motions on March 31, 2004, came a final salvo, yet another motion to exclude expert testimony. The motions fall into the following broad categories: (1) motions relating to EPC’s case-in-chief (infringement under the doctrine of equivalents, willful infringement); (2) motions relating to Donaldson’s defenses (obviousness-type double patenting, patent misuse, separate patentability); (3) motions relating to experts (qualification, reliability, untimely disclosure); (4) waiver of privilege as to communications to or from EPC’s prior patent counsel; (5) admissibility of a videotape on practices and procedures of the Patent and Trademark Office (PTO); and (6) the release of summary judgment exhibits for use at trial. The parties did not request oral arguments on any of the pending motions. Therefore, these matters are now fully submitted. The court deems it most productive to address, in turn, the issues raised by the motions, rather than to address the motions, in turn, in the order in which they were filed. The court will provide further pertinent factual background on these issues, where necessary, in its legal analysis, below. II. MOTIONS RELATED TO EPC’S CASE-IN-CHIEF The motions that the court will address first relate to EPC’s case-in-chief. These motions involve the admissibility of evidence of “equivalents” of EPC’s patent claims and the admissibility of evidence of willful infringement. A. Admissibility Of Evidence Of Equivalents 1. The pending motions One of several contentious issues in this case is the admissibility of evidence of infringement under the “doctrine of equivalents.” On January 9, 2004, EPC filed its Motion In Limine To Allow Evidence On Doctrine Of Equivalents (docket no. 251). Much later, on March 1, 2004, Donaldson filed its own Motion In Limine To Exclude Evidence Relating To The Doctrine Of Equivalents And Motion To Modify Claim Construction (docket no. 292). Donaldson resisted EPC’s motion on March 2, 2004 (docket no. 295), and expressly relied on that resistance in support of its own motion. EPC resisted Donaldson’s motion on March 24, 2004 (docket no. 314). Finally, Donaldson filed a reply in further support of its motion on March 31, 2004 (docket no. 328). 2. Arguments of the parties EPC asserts that it intends to prove “literal” infringement of the ’456 patent, at least in the first instance, but that, in the alternative, it may also attempt to prove infringement under the “doctrine of equivalents.” EPC points out that this court ruled, in EPC I, that EPC has generated genuine issues of material fact on the issue of infringement under the doctrine of equivalents. However, EPC also acknowledges that subsequent rulings by the Supreme Court and the Circuit Court of Appeals for the Federal Circuit require some “revisitation” of the issue of “equivalents” infringement prior to trial. Therefore, EPC states that its motion is intended to avoid any dispute at trial concerning recent case law on the doctrine of prosecution history estoppel. Even in light of this more recent case law, EPC argues that prosecution history estoppel does not apply in this case to bar or limit the “equivalents” upon which it may rely, because no narrowing amendments were made to any relevant claim elements of the ’456 patent for a substantial reason related to patenta-bility. More specifically, EPC contends that, under Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 535 U.S. 722, 122 S.Ct. 1831, 152 L.Ed.2d 944 (2002), the reach of prosecution history estoppel depends upon the subject matter surrendered by a narrowing amendment, not merely on “cosmetic” amendments. EPC argues, further, that upon remand in the Festo case, Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. Ltd., 344 F.3d 1359 (Fed.Cir.2003), Cert. denied, 72 U.S.L.W. 3513, — U.S. -, 124 S.Ct. 2018, 2019, 158 L.Ed.2d 492 (2004), the Federal Circuit Court of Appeals “elucidated” the applicable analysis, explaining that no presumption of estoppel arises, unless there is a narrowing amendment made for a substantial reason related to patentability. That decision also holds that a patentee may then rebut a presumption of “total surrender” of equivalents to narrowed claims, if the equivalent in question was unforeseeable at the time of the application, the rationale underlying the amendment bears merely a tangential relation to the equivalent in question, or if the patentee could not have been reasonably expected to describe the insubstantial substitute in question. While EPC acknowledges that there were amendments to the claims of the ’456 patent, EPC argues that there is no identifiable “narrowing amendment” made for a “substantial reason related to patentability” to two elements, the “elongated locking member” and the “in-terengageable notches.” Rather, EPC asserts that any amendments were made for “cosmetic” reasons or to encompass a competitor’s infringing device. Thus, EPC argues, the Festo inquiry ends, and there is no estoppel. However, even if the relevant amendments could be deemed to be “narrowing,” EPC argues that it can easily rebut the presumption that prosecution history estoppel applies, because the rationale for the underlying amendments bore only a tangential relation to the equivalent in question in Donaldson’s accused infringing device, the NG Air Alert. EPC also asserts that Donaldson’s argument for reconsideration or clarification of the court’s construction of the “means for selectively disengaging” element on the basis of Festo is without merit. EPC points out that the court has already rejected one request by Donaldson to reconsider the pertinent construction and that Donaldson has not pointed to any new facts, circumstances, or intervening case law that requires a second reconsideration. Specifically, EPC argues that the Festo decisions do not change the law of claim construction, and Donaldson has not pointed to anything else requiring a different construction. EPC contends that Donaldson’s mistaken reliance on Festo arises from confusion of the doctrine of equivalents infringement with literal infringement of a means-plus-function claim, where the latter reaches a product that performs the identical function recited in the claim using the identical or equivalent structure as disclosed in the specification for performing that function. EPC also contends that it clarified the language of the specification, at the request of the examiner, without adding any new matter, so that the clarification has no effect on the court’s construction. In short, EPC contends that the court’s prior construction is complete and correct. Donaldson takes a different view on both the applicability of prosecution history estoppel in this case and the need to reconsider construction of the means-plus-function claim. Donaldson contends that EPC improperly focuses on just five words in the language of the “locking means” claim of the ’456 patent. However, Donaldson contends that if the claim is examined in its entirety, it is clear that the inventor dramatically narrowed the claim during prosecution of the patent application, as to both the “elongated locking member” limitation and the “interengaga-ble notches” limitation, to the point where the claim reaches no more than the specific structure and structural relationship described and claimed in the final application. Consequently, Donaldson argues, EPC cannot assert infringement under the doctrine of equivalents in this case. ' As to the “disengagement means” limitation, Donaldson argues that prosecution history estoppel limits the scope of the literal infringement analysis in this case, barring application of the claim to an accused device in a manner that is inconsistent with the inventor’s concessions to the patent office. Moreover, Donaldson argues that the Festo decisions require reconsideration of the court’s claim construction of the “disengagement means” in the ’456 patent, because positions taken before the PTO also bar inconsistent positions on claim construction. Here, Donaldson argues that the court’s claim construction of the “disengagement means” limitation is broad enough to include the original claims that the inventor abandoned during prosecution of the patent. Therefore, Donaldson contends that the court’s claim construction is clearly erroneous and must be modified. Details of both parties’ arguments are best addressed in the court’s legal analysis, below. 3. Legal analysis a. The Festo decisions At the center of the parties’ arguments concerning claim construction and applicability of the doctrine of equivalents are the decisions of the Supreme Court and the Federal Circuit Court of Appeals in the Festo case. Therefore, the court begins its analysis of the doctrine of equivalents and claim construction- issues with an examination of the Festo decisions. The court will then turn to the question of the impact of those decisions on the present litigation. i. The Supreme Court’s decision. This court recently summarized the Supreme Court’s decision in the Festo case as follows: In Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 535 U.S. 722, 122 S.Ct. 1831, 152 L.Ed.2d 944 (2002), the Supreme Court was required “to address once again the relation between two patent law concepts, the doctrine of equivalents and the rule of prosecution history estoppel.” Festo, 535 U.S. at 726, 122 S.Ct. 1831. The Court explained the context of, and issues in, its ruling more specifically, as follows: In the decision now under review the Court of Appeals for the Federal Circuit held that by narrowing a claim to obtain a patent, the patentee surrenders all equivalents to the amended claim element. Petitioner asserts this holding departs from past precedent in two respects. First, it applies estoppel to every amendment made to satisfy the requirements of the Patent Act and not just to amendments made to avoid pre-emption by an earlier invention, ie., the prior art. Second, it holds that when estoppel arises, it bars suit against every equivalent to the amended claim element. The Court of Appeals acknowledged that this holding departed from its own cases, which applied a flexible bar when considering what claims of equivalence were estopped by the prosecution history. Petitioner argues that by replacing the flexible bar with a complete bar the Court of Appeals cast doubt on many existing patents that were amended during the application process when the law, as it then stood, did not apply so rigorous a standard. We granted certiorari to consider these questions. Festo, 535 U.S. at 726-28, 122 S.Ct. 1831. Thus, it is clear that the Supreme Court’s focus in Festo was on the nature of amendments to a patent application that will give rise to prosecution history estoppel when a patentholder asserts infringement under the doctrine of equivalents. More specifically, the Court explained that the role of prosecution history es-toppel is to prevent an inventor from using the doctrine of equivalents to “recapture in an infringement action the very subject matter surrendered as a condition of receiving a patent.” Id. at 734, 122 S.Ct. 1831. With that role in mind, the Court turned to consideration of the question of what kinds of amendments may give rise to estoppel. The Court rejected the petitioner’s argument “that estoppel should arise when amendments are intended to narrow the subject matter of the patented invention, for instance, amendments to avoid prior art, but not when the amendments are made to comply with requirements concerning the form of the patent application.” Id. at 735, 122 S.Ct. 1831. Although the Court acknowledged that “[o]ur ‘prior cases have consistently applied prosecution history estoppel only where claims have been amended for a limited set of reasons,’ such as ‘to avoid the prior art, or otherwise to address a specific concern — such as obviousness — that arguably would have rendered the claimed subject matter unpatentable,’ ” the Court had “not purported] to define that term or to catalog every reason that might raise an estoppel.” Id. (quoting Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 30-32, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997)). “Indeed,” the Court explained, “we stated that even if the amendment’s purpose were unrelated to patentability, the court might consider whether it was the kind of reason that nonetheless might require resort to the estoppel doctrine.” Id. (again citing Warner-Jenkinson, 520 U.S. at 40-41, 117 S.Ct. 1040). Therefore, the Court “agree[d] with the Court of Appeals that a narrowing amendment made to satisfy any requirement of the Patent Act may give rise to an estop-pel,” including, by way of express example, any requirement of 35 U.S.C. § 112. Id. at 736, 122 S.Ct. 1831 (emphasis added). As to § 112 requirements, the Court distinguished between “truly cosmetic” amendments under that provision, which did not narrow the scope of the patent or raise an estoppel, and “a § 112 amendment [that] is necessary and narrows the patent’s scope — even if only for the purpose of better description,” to which estoppel “may apply.” Id. at 736-37, 122 S.Ct. 1831. Dethmers Mfg. Co. v. Automatic Equip. Mfg. Co., 299 F.Supp.2d 903, 916-17 (N.D.Iowa 2004) (footnotes omitted). On remand, the Federal Circuit Court of Appeals explained the Supreme Court’s analytical procedure for determining when prosecution history estoppel bars consideration of “equivalents,” as follows: First, the Court agreed with our holding that “a narrowing amendment made to satisfy any requirement of the Patent Act may give rise to an estoppel.” Festo VIII, 535 U.S. at 736, 122 S.Ct 1831. Second, however, the Court disagreed with our adoption of a complete bar to the doctrine of equivalents when prosecution history estoppel arises. Id at 737, 122 S.Ct. 1831. The Court instead established a presumption that a narrowing amendment made for a reason of patentability surrenders the entire territory between the original claim limitation and the amended claim limitation, and explained that a patentee may overcome that presumption by showing that “at the time of the amendment one skilled in the art could not reasonably be expected to have drafted a claim that would have literally encompassed the alleged equivalent.” Id at 741, 122 S.Ct. 1831. Specifically, the Court enumerated the three ways in which the patentee may overcome the presumption — i.e., by demonstrating [1] that “the equivalent [would] have been unforeseeable at the time of the [amendment],” [2] that “the rationale underlying the amendment [bore] no more than a tangential relation to the equivalent in question,” or [3] that “there [was] some other reason suggesting that the patentee could not reasonably be expected to have described the insubstantial substitute in question.” Id at 740-41, 535 U.S. 722, 122 S.Ct. 1831, 152 L.Ed.2d 944. Festo v. Shoketsu Kinzoku Kogyo Kabushiki, 344 F.3d 1359, 1365 (Fed.Cir.2003) (footnote omitted), cert. denied 72 U.S.L.W. 3513, — U.S. -, 124 S.Ct. 2018, 2019, 158 L.Ed.2d 492 (2004). ii. The decision on remand. On remand, the Federal Circuit Court of Appeals explained that the Supreme Court “observfed] that the narrowing amendments at issue in this case were made for reasons of patentability,” and therefore remanded the case to the lower courts “to determine in the first instance whether Festo can demonstrate that those narrowing amendments did not surrender the particular equivalents in question.” Festo, 344 F.3d at 1365. In the process of making that determination, the Federal Circuit Court of Appeals first reinstated a number of its holdings from its prior en banc decision, which had been vacated, but left undisturbed, by the Supreme Court. See id at 1366-67. First, the court “recognize[d] that the [Supreme] Court expressly endorsed our holding that a narrowing amendment made to comply with any provision of the Patent Act, including § 112, may invoke an estoppel.” Id. at 1366 (citing Festo, 535 U.S. at 736, 122 S.Ct. 1831). Second, the court reinstated its holding “that a ‘voluntary’ amendment may give rise to prosecution history estoppel.” Id Third, the court “elarif[ied] that the Supreme Court’s Warner-Jenkinson presumption, which treats a narrowing amendment as having been made for a ‘substantial reason related to patentability’ when the record does not reveal the reason for the amendment, 520 U.S. at 33, 117 S.Ct. 1040, remains intact after the Court’s Festo decision, although the consequences of failing to overcome that presumption have been altered,” Id Specifically, [T]he Wamer-Jenkinson and Festo presumptions operate together in the following manner: The first question in a prosecution history estoppel inquiry is whether an amendment filed in the Patent and Trademark Office (“PTO”) has narrowed the literal scope of .a claim. Pioneer Magnetics, Inc. v. Micro Linear Corp., 330 F.3d 1352, 1356 (Fed.Cir.2003). If the amendment was not narrowing, then prosecution history estop-pel does not apply. But if the accused infringer establishes that the amendment was a narrowing one, then the second question is whether the reason for that amendment was a substantial one relating to patentability. See id. When the prosecution history record reveals no reason for the narrowing amendment, Wamer-Jenkinson presumes that the patentee had a substantial reason relating to patentability; consequently, the patentee must show that the reason for the amendment was not one relating to patentability if it is to rebut that presumption. See id. (citing Warner-Jenkinson, 520 U.S. at 33, 117 S.Ct. 1040, 137 L.Ed.2d 146). In this regard, we reinstate our earlier holding that a patentee’s rebuttal of the Warner-Jenkinson presumption is restricted to the evidence in the prosecution history record. Festo VI, 234 F.3d at 586 & n. 6; see also Pioneer Magnetics, 330 F.3d at 1356 (stating that only the prosecution history record may be considered in determining whether a patentee has overcome the Wamer-Jenkinson presumption, so as not to undermine the public notice function served by that record). If the patentee successfully establishes that the amendment was not for a reason of patentability, then prosecution history estoppel does not apply. If, however, the court determines that a narrowing amendment has been made for a substantial reason relating to patentability — whether based on a reason reflected in the prosecution history record or on the patentee’s failure to overcome the Wamer-Jenkinson presumption — then the third question in a prosecution history estoppel analysis addresses the scope of the subject matter surrendered by the narrowing amendment. See Pioneer Magnetics, 330 F.3d at 1357. At that point Festo VIII imposes the presumption that the patentee has surrendered all territory between the original claim limitation and the amended claim limitation. See Festo VIII, 535 U.S. at 740, 122 S.Ct. 1831. The patentee may rebut that presumption of total surrender by demonstrating that it did not surrender the particular equivalent in question according to the criteria discussed below. Finally, if the patentee fails to rebut the Festo presumption, then prosecution history estoppel bars the patentee from relying on the doctrine of equivalents for the accused element. If the paten-tee successfully rebuts the presumption, then prosecution history estoppel does not apply and the question whether the accused element is in fact equivalent to the limitation at issue is reached on the merits. Festo, 344 F.3d at 1366-67. Turning to questions before the court on remand, the Federal Circuit Court of Appeals first concluded that “rebuttal of the presumption of surrender is a question of law to be determined by the court, not a jury.” Id. at 1367. That being so, “[questions relating to the application and scope of prosecution history estoppel thus fall within the exclusive province of the court. Accordingly, the determinations concerning whether the presumption of surrender has arisen and whether it has been rebutted are questions of law for the court, not a jury, to decide.” Id. at 1368. The last issue addressed by the Federal Circuit Court of Appeals in Festo that is of interest here is that court’s determination of the factors pertinent to the criteria set forth by the Supreme Court as rebutting the presumption of surrender. See id. at 1368-70. The three rebuttal criteria, again, are “[1] that ‘the equivalent [would] have been unforeseeable at the time of the [amendment],’ [2] that ‘the rationale underlying the amendment [bore] no more than a tangential relation to the equivalent in question,’ or [3] that ‘there [was] some other reason suggesting that the patentee could not reasonably be expected to have described the insubstantial substitute in question.’ ” Id. at 1365 (quoting Festo, 535 U.S. at 740-41, 122 S.Ct. 1831). The court concluded that it could not “anticipate all of the circumstances in which a patentee might rebut the presumption of surrender,” but nevertheless “provide[d] ... general guidance ... regarding the application of the three rebuttal criteria.” Id. at 1368-69. This court will return to the “guidance” provided by the Federal Circuit Court of Appeals on rebutting the presumption of “total surrender,” if necessary, below. b. The “elongated locking member” and “interengagable notches” limitations This court will first apply the Festo analysis to determine whether or not prosecution history estoppel bars assertion of any specific “equivalents” to the “elongated locking member” and “interengagable notches” limitations. The parties disagree vehemently on the outcome of this analysis. i. Ibas there a “narrowing” amendment? The first step of the Festo analysis, again, is whether there was “a narrowing amendment.” Festo, 344 F.3d at 1366 (“The first question in a prosecution history estoppel inquiry is whether an amendment filed in the Patent and Trademark Office (‘PTO’) has narrowed the literal scope of a claim.”). The parties disagree about whether there was such an amendment to eithér the “elongated locking member” limitation or the “interengagable notches” limitation of the ’456 patent. To decide who is right, the court must resort to the prosecution history of the ’456 patent. A general timeline of the prosecution history of the ’456 patent appears in EPC II, 225 F.Supp.2d at 1078-79. The parties focus their present discussion on certain details of that history. Both parties begin their arguments with the original June 19, 1978, patent application. That application claimed, in Claim 1, “[a]n air filter restriction indicating device for internal combustion engines and the like equipped with an air filter comprising,” inter alia, “means for progressively maintaining said indicator at the position it attains as the pressure in said negative zone decreases regardless of changes thereafter to higher pressures in said negative zone.” See Affidavit of Craig J. Ler-vick In Support Of Plaintiffs Motion In Limine To Allow Evidence On Doctrine Of Equivalents (Lervick Affidavit), Exhibit A-1, p. 14. Claim 11 of that application included “an elongated latch element,” which EPC contends is merely different language disclosing the “elongated locking member” now in dispute. Id. at 19-20. EPC acknowledges that Claim 1 of the application was rejected as anticipated by one existing patent (Smith), and the remaining claims, including Claim 11, were rejected as obvious in light of that patent combined with three other existing patents (Nelson, Rodgers, and Schmidt). The claims of the application were then canceled. An amended application, filed November 5, 1979, and consisting of Claims 19 through 24, attempted to overcome the examiner’s objections. Independent Claim 19 recited, inter alia, “lock-up and guiding means for guiding ... [and] progressively locking the indicating member in various positions.” Lervick Affidavit, Exhibit A-4, pp. 5-6. The limitations at issue appeared in dependent Claim 21, which disclosed “an elongated locking member,” and Claim 22, which disclosed “interengagable notches.” Id. at pp. 6-7. The inventor received a Notice of Allowance for these claims in December 1979. Notwithstanding the allowance of the application, the inventor filed a continuation on March 18, 1980, and then amended the claims in October 1980, to attempt to make the invention read on the Donaldson Informer indicator. See EPC I, 165 F.Supp.2d at 855 (noting that, in 1980, “EPC requested the [PTO] to amend EPC’s pending patent claim to specifically cover the Donaldson Informer indicator.”). That amended application retained the previously allowed claims (Claims 19 through 24) with newly amended Claims 25 through 30 drafted to read on the Informer. Claim 25 .included “an elongated locking member,” id. at Exhibit A-5, pp. 8-9, while Claim 26 disclosed a device “wherein notches ... are adapted to engage the cylindrical rod so as to progressively lock and maintain the indicating member in the last position which it attains....” Id. at p. 9. Claims 19 through 30 of this second amended application were rejected on February 17, 1981, however, as obvious in light of two additional prior art references (Witchell and Leinfelt), although the examiner stated, “Claims 22-24 and Claim 29/26 if combined with Claim 30, allowable if amended as indicated” to overcome indefiniteness. See id. at Exhibit A-6. Thereafter, EPC filed a continuation and amendment, which was again rejected, and a final amendment, dated September 29, 1983, which attempted to restate allowable claims. This amendment was allowed on November 17, 1983, and issued as the ’456 patent on May 1,1984. Claim 1 of the ’456 patent discloses, inter alia, “an elongated locking member,” and “interen-gagable notches.” Lervick Affidavit, Exhibit A, col. 7. Thus, the terms “elongated locking member” and “interengagable notches” appeared with only slight variations throughout the prosecution of the ’456 patent, as EPC contends. However, the context of these terms changed, and Donaldson argues that their scope was significantly narrowed as a consequence. To facilitate comparison of the context of these terms, the pertinent limitations from each stage of the prosecution history are presented side-by-side in the following chart, with key terms in bold, and new or different language in each successive amendment underlined: From the side-by-side statements, it is immediately apparent that the “elongated locking member” was narrowed in the course of prosecution history estoppel, as the structure constituting that “member” was claimed with ever increasing specificity. In the original application, the “elongated latch element” was merely “positioned axially and internally of said guide member,” and the manner in which it locked up the indicator was merely “by cooperating” with the guide member. See Lervick Affidavit, Exhibit A-l, pp. 19-20. In Claim 21 of the first amended application, however, in addition to the arguably superficial change of wording from “elongated latch element” to “elongated locking member,” the “elongated locking member” is claimed to have “first and second ends”; the “first end” is specified to be “supported by the second end of the housing”; and the “second end” is specified to be “extending into the recess in the cylindrical rod.” Lervick Affidavit, Exhibit A-4, p. 6. Furthermore, the manner in which the “elongated locking member” is claimed to lock up the indicator is “by interengagement between the other end of the locking member and the cylindrical rod,” although it isn’t clear which end, first or second, is the “other end” of the locking member. Id. In the second amendment, the “elongated locking member” is again specified in Claim 25 to have a “first end” and a “second end,” and while the position of the “first end” has not changed, i.e., it is still “supported by the second end of the housing,” the “second end” is no longer claimed as “extending into the recess in the cylindrical rod,” but is instead claimed as “extending into the open end of the cylindrical rod and cooperating with the cylindrical rod.” Lervick Affidavit, Exhibit A-5, p. 9 (emphasis added). The ’456 patent limitation for the “elongated locking member” discloses, still more narrowly, that it is the “locking member,” not just its “first end,” that is “supported by the second end of the housing,” and adds that this is “so as to permit movement of the first end of the locking member between a first position and a second position,” which is a wholly new specification for the structure of the locking member. Lervick Affidavit, Exhibit A, col, 7. In addition, the “first end” is specified to be “disposed, when the first end of the locking member is in its first position, adjacent to the open end of the tubular member,” id., which is certainly much narrower than merely positioning the entire “elongated latch element” “axially and internally of said guide member,” as in the original application. See id., Exhibit A-l, pp. 19-20. Also, the “second end” is not described as “adjacent to the open end of the cylindrical rod,” as in the second amendment, see id., Exhibit A-5, pp. 8-9, but more narrowly specified to be “projecting from the second chamber through the opening in the second end of the housing.” Id. Exhibit A, col. 7. The court finds a similar narrowing of the “interengagable notches” limitation in the course of prosecution. Indeed, the only limitation in the original application that is comparable to the “interengagable notches” — if there is one at all' — is “cooperation]” between the “elongated latch element” and the “guide member.” See Lervick Affidavit, Exhibit A-l, p. 20. Claim 22 of the first amendment claims what appear to be the former “cooperating” means much more narrowly, in the form of a more specific structure comprising “interengagable notches on the second end of the locking member and in the recess in the cylindrical rod.” Lervick Affidavit, Exhibit A-4, p. 7 (Claim 22). In Claim 26 of the second amendment, the “notches” are specified to be present only on the “second end of the locking member,” and instead of “interengaging” notches in the cylindrical rod, the “notches” on the second end of the locking member “are adapted to engage the cylindrical rod.” Id., Exhibit A-5, p. 9. While this amendment might arguably be a “broadening” of the limitation, rather than a “narrowing,” as compared to the first amendment, it is still a narrowing as compared to the original application. Finally, in the ’456 patent, the “interengagable notches” are on the “first end of the locking member and the open end of the tubular member,” and they are adapted to engage “when the first end of the locking member is in its first position,” which is wholly new and narrower than prior disclosures, see id., Exhibit A, col. 7, even if the court assumes that the remainder of the specification, which specifies the movement and locking of the diaphragm, is analogous to the prior specification. Compare id., Exhibit A-5, pp. 8-9 (second amendment) (the engagement of the “notches” is “to progressively lock and maintain the indicating member in the last position which it attains as the diaphragm member is moved from its infold position to its outfold position”), with id., Exhibit A, col. 7 (’456 patent) (the “interengagable notches” “permi[t] the diaphragm to move from its infold position to its outfold position but preven[t] the diaphragm from returning to its infold position”). EPC contends, however, that it is improper for the court to look beyond the words “elongated locking member” and “interengagable notches” to determine whether there has been a “narrowing” of the limitation in the course of prosecution, citing Ericsson, Inc. v. Harris Corp., 352 F.3d 1369, 1372-75 (Fed.Cir.2003). EPC argues that Ericsson requires the court to focus only on the “disputed elements,” not on narrowing of surrounding language. EPC contends that the “disputed elements” are only the “elongated locking member” and the “interengagable notches,” which are present in every statement of the claims. This court has a very different reading of Ericsson. In Ericsson, the court considered a claim that required that “ ‘the speech signal amplifiers, which require power, only supply power to the telephone set when the receiver is off its cradle and a call can be made.’ ” Ericsson, 352 F.3d at 1374 (quoting the patent with emphasis added by the court). The court concluded that the “only supply power” limitation “refers only to power supplied by the speech signal amplifiers.” Id. The court also concluded that a reasonable jury could have concluded that power supplied by certain transistors was not power supplied by the speech signal amplifiers, because those transistors were not part of the speech signal amplifiers, but part of the control circuitry. Id. at 1374-75. The limitation that “the speech signal amplifiers ... only supply power to the telephone set” when the receiver is off-hook was never amended, although other elements were amended, and consequently, the unamended limitation was not subject to Festo. Id. at 1375. In other words, the specification of structure relating to the “only supply power” limitation was never amended. In the course of the prosecution of the ’456 patent, on the other hand, it is precisely the specification of the structure of the “elongated locking member” and the “interengagable notches” that was repeatedly amended in narrower and narrower terms. Thus, it is Ericsson, not Festo, that does not apply here. Therefore, contrary to EPC’s contentions, and consistent with Donaldson’s, the court concludes that the “elongated locking member” and the “interengable notches” limitations were both narrowed in the course of prosecution of the ’456 patent. ii. Were the narrowing amendments for purposes of patentability? As the Federal Circuit Court of Appeals explained on remand in Festo, “[I]if the accused infringer establishes that the amendment was a narrowing one, then the second question is whether the reason for that amendment was a substantial one relating to patentability.” Festo, 344 F.3d at 1366. As that court also explained, “When the prosecution history record reveals no reason for the narrowing amendment, Warner-Jenkinson presumes that the pat-entee had a substantial reason relating to patentability; consequently, the patentee must show that the reason for the amendment was not one relating to patentability if it is to rebut that presumption.” Id. at 1366-67. EPC argues that the amendments, even if narrowing, were not for reasons of patentability, because the pertinent claims of the first amendment were allowed, and EPC canceled those claims and filed a new application to attempt to make the patent read on the Donaldson Informer, not to avoid prior art. The court disagrees. The prosecution history recounted above shows that the claims of the original application were rejected as either anticipated by or obvious in light of prior art. Even if the claims of the first amended application were allowable, the inventor canceled those claims, choosing to file a continuation and second amendment in an attempt to make the patent read on the Donaldson Informer. See Festo, 344 F.3d at 1366 (holding, inter alia, “that a ‘voluntary’ amendment may give rise to prosecution history estop-pel”). The second amendment was also rejected in light of prior art, and two other amendments were filed, before the ’456 patent issued. Thus, the record shows that the narrowing amendments to the pertinent limitations were for reasons related to patentability, and prosecution history estoppel applies. At the very least, EPC has failed to overcome the Warner-Jenkinson presumption that the reason for the amendments was patentability, if the record could be deemed to be silent on the reason, which the court finds that it is not. Id. at 1366-67 (“Wfiien the prosecution history record reveals no reason for the narrowing amendment, Warner-Jenkinson presumes that the patentee had a substantial reason relating to patent-ability.”)- iii. Can EPC overcome the presumption of “total surrender”? As the Federal Circuit Court of Appeals explained on remand in Festo, “If ... the court determines that a narrowing amendment has been made for a substantial reason relating to patentability — whether based on a reason reflected in the prosecution history record or on the patentee’s failure to overcome the Warner-Jenkinson presumption — then the third question in a prosecution history estoppel analysis addresses the scope of the subject matter surrendered by the narrowing amendment.” Id. at 1367. Consequently, EPC must overcome the presumption imposed by the Supreme Court’s decision in Festo that EPC “has surrendered all territory between the original claim limitation and the amended claim limitation.” See id. (citing Festo, 535 U.S. at 740, 122 S.Ct. 1831). Although there are three criteria under which EPC can rebut the presumption of “total surrender” of “equivalents,” EPC relies on only the second, “that ‘the rationale underlying the amendment [bore] no more than a tangential relation to the equivalent in question.’ ” Id. at 1365 (quoting Festo, 535 U.S. at 740-41, 122 S.Ct. 1831). As to that criterion, the Federal Circuit Court of Appeals explained, [TJhis criterion asks whether the reason for the narrowing amendment was peripheral, or not directly relevant, to the alleged equivalent. See The American Heritage College Dictionary 1385 (3d ed.1997) (defining “tangential” as “[mjerely touching or slightly connected” or “[o]nly superficially relevant; divergent”); 2 The New Shorter Oxford English Dictionary 3215-16 (1993) (defining “tangential” as “merely touching] a subject or matter; peripheral”). Although we cannot anticipate the instances of mere tangentialness that may arise, we can say that an amendment made to avoid prior art that contains the equivalent in question is not tangential; it is central to allowance of the claim. See Pioneer Magnetics, 330 F.3d at 1357. Moreover, much like the inquiry into whether a patentee can rebut the Warner-Jenkinson presumption that a narrowing amendment was made for a reason of patentability, the inquiry into whether a patentee can rebut the Festo presumption under the “tangential” criterion focuses on the patentee’s objectively apparent reason for the narrowing amendment. As we have held in the Warner-Jenkinson context, that reason should be discernible from the prosecution history record, if the public notice function of a patent and its prosecution history is to have significance. See id. at 1356 (“Only the public record of the patent prosecution, the prosecution history, can be a basis for [the reason for the amendment to the claim]. Otherwise, the public notice function of the patent record would be undermined.”); Festo VI, 234 F.3d at 586 (“In order to give due deference to public notice considerations under the Wamer-Jenkinson framework, a patent holder seeking to establish the reason for an amendment must base his arguments solely upon the public record of the patent’s prosecution, i.e., the patent’s prosecution history. To hold otherwise — that is, to allow a patent holder to rely on evidence not in the public record to establish a reason for an amendment— would undermine the public notice function of the patent record.”). Moreover, whether an amendment was merely tangential to an alleged equivalent necessarily requires focus on the context in which the amendment was made; hence the resort to the prosecution histo'ry. Thus, whether the patentee has established a merely tangential reason for a narrowing amendment is for the court to determine from the prosecution history record without the introduction of additional evidence, except, when necessary, testimony from those skilled in the art as to the interpretation of that record. Festo, 344 F.3d at 1369-70 (emphasis added). The court notes that, under the “tangential” criterion, the issue is whether the reasons for amendments to the patent were “ ‘tangential ... to the equivalent in question. ’ ” Festo, 344 F.3d at 1365 (quoting Festo, 535 U.S. at 740-41, 122 S.Ct. 1831) (emphasis added). Thus, this court believes that it must first identify that “equivalent.” The “equivalent,” obviously, is the NG Air Alert, but more specifically, it is the lock-up means in the NG Air Alert. EPC points to a drawing of what EPC describes as an “elongated locking member” from Donaldson’s expert’s report as representing the locking member of the NG Air Alert. Donaldson does not dispute this identification of the “equivalent,” and indeed, includes in its own appendix in support of its motion to exclude evidence on the doctrine of equivalents, albeit without explanation of the reason for its inclusion, a copy of the “Krisko” patent, U.S. Patent No. 6,604,486 Bl, originally filed August 15, 2000, and issued August 12, 2003, which is assigned to Donaldson. See Declaration of Christopher J. Sorensen (Sorensen Declaration) (docket no. 295), Exhibit I. That patent includes what appears to be the same “locking member” cited by EPC. Indeed, in separate submissions, Donaldson expressly identifies the Krisko patent as relating to the NG Air Alert. See Donaldson’s Resistance To EPC’s Motion In Limine To Preclude Donaldson From Presenting Any Theory Of Non-Infringement Based On Separate Patentability (docket no. 334). Therefore, the court finds that the Krisko patent is a fair representation of the NG Air Alert, and thus of the “equivalent in question,” at least for present purposes. Figures 6A, 6B, and 6D from that patent show the indicator in “reset position,” “first intermediate position,” and “full warning'change filter position,” and Figure 2A shows the locking member itself: See id. at 3, 8-9, JO. Having identified the “equivalent,” the court next turns to the question of “whether the reason for the narrowing amendment was peripheral, or not directly relevant, to the alleged equivalent.” Festo, 344 F.3d at 1369. EPC argues that the rationale for the amendments to the ’456 patent demonstrates that the amendments were completely unrelated to the corresponding potentially equivalent elements in the NG Air Alert. The rationale that EPC points to is the following from the September 29,1983, amendment: Another important practical advantage provided by applicant’s device, as now claimed, is the compactness of the device as compared to the prior art devices. In truck and vehicle cabs, space is a premium. The operation of applicant’s device does not effect [sic] or change its overal [sic] dimensions. During operation, nothing progressively protrudes or extends out of the device which could be bent or stuck. Lervick Affidavit, Exhibit A-7, p. 17. EPC points out that the primary prior art reference cited by the examiner (the Smith patent) had a protruding indicator and that the ’456 eliminates this problem with the combination of the “elongated locking member” and the “interengagable notches.” EPC contends that, in contrast, Donaldson’s NG Air Alert uses elongated locking fingers, which are interengagable with progressive notches on the surrounding tubular member, which likewise result in a device without a protruding indicator, but which isn’t directly related to the prior art that the ’456 patent was attempting to overcome. Donaldson contends that EPC is ignoring the prior art references cited by the examiner that disclosed various kinds of elongated lock-up means, disposed “axially and internally,” for progressive indicators. The examiner rejected the application for the ’456 patent, Donaldson contends, because a combination of these prior art references required only mechanical skill rather than an inventive concept. In overcoming these prior art references by specifying ever narrower structures as constituting the “elongated locking member” and “interengagable notches,” Donaldson argues that EPC necessarily gave up any “equivalent” that, like the NG Air Alert, was comprised of a lock-up means disposed “axially and internally.” While the “rationale” for amendments cited by EPC may be sufficient to explain in what way the asserted invention in the ’456 patent avoids prior art with protruding indicators, like Smith, it says nothing about the rationale for amendments to the specific lock-up means for non-protruding indicators. The court finds from the prosecution history, see Festo, 344 F.3d at 1369 (the “reason [for the amendment] should be discernible from the prosecution history record”), that the examiner frequently pointed out that the lock-up means in the application was anticipated by, or obvious over, the prior art, as was the combination of such a lock-up means with a progressive indicator. For example, the examiner rejected the second amendment, in pertinent part — that is, as to application Claims 25 and 26 — as follows: Claims 19-21, 25-27, 29/25 and 30 are rejected under 35 USC 103 as unpatentable over Lee et al in view of Witchell and Leinfelt and/or Smith (of record). It would be obvious to one skilled in the art, in view of the showings by Smith and Leinfelt (col. 2, lines 45-66) of known means to progressively lock an indicator means in various positions to indicate differential pressure changes, as a diaphragm means and/or a bellow means moves, to replace the notches locking means 59’, 54, 49 (Figs.4-5) in Lee et al with known progressively locking means for the known indicating purpose, and to do so would involve only mechanical skill rather than an inventive concept. Lervick Affidavit, Exhibit A-6, p. 4. This rejection says nothing whatever about the protruding indicator, and instead addresses anticipation of the locking means disclosed in the second amendment. Therefore, from “the context in which the [subsequent] amendment was made,” and “focus[ing] on the patentee’s objectively apparent reason for the narrowing amendment,” Festo, 344 F.3d at 1369, the court concludes that the locking means, not the protruding indicator, was the central concern of the amendments to the pertinent limitations. Thus, the question becomes whether or not the amendment to avoid prior art was nevertheless for a reason “tangential” to the equivalent in question. See id. In Festo, the Federal Circuit Court of Appeals explained that, if the “amendment [was] made to avoid prior art that contains the equivalent in question,” it is not “tangential” to the equivalent in question. See id. It is not immediately apparent what the Federal Circuit Court of Appeals meant by “prior art that contains the equivalent in question.” On the other hand, the decision on which the Festo court relied for this proposition, Pioneer Magnetics, Inc. v. Micro Linear Corp., 330 F.3d 1352 (Fed.Cir.2003), provides some clarification. In Pioneer Magnetics, the court considered whether the presumption of surrender of the equivalent in question had been rebutted, where the application was amended, in pertinent part, to claim “a switching analog multiplier circuit” to avoid the so-called “Carpenter reference.” Pioneer Magnetics, 330 F.3d at 1355. The equivalent in question was a “non-switching multiplier circuit.” Id. The court noted that “the Carpenter reference dis-closefd] a non-switching multiplier circuit,” so that “a non-switching circuit was known in the art” at the time of the amendment Id. at 1357. The court concluded that “[t]he amendment was clearly not tangential to the equivalent in question; the amendment was made to avoid the very prior art that contained the equivalent.” Id. To put it another way, in Pioneer Magnetics, the prior art literally contained the precise element that the amendment was made to avoid. That is not the ease here. The locking means in the NG Air Alert may be equivalent to the locking means in the prior art that the amendments to the ’456 patent were intended to avoid, but none of the prior art references cited by the examiner disclosed literally a locking means comprised of the precise structure found in the NG Air Alert. More specifically, several of the prior art references cited by the examiner disclosed an “elongated locking member” comprised of a single member with one or more notches designed to engage and lock the diaphragm in position. See, e.g., Lervick Affidavit, Exhibit E (U.S. Patent No. 1,546,409 (Schmidt)), p. 1; id., Exhibit F (U.S. Patent No. 3,068,831 (Witchell)), p. 1; id., Exhibit G (U.S. Patent No. 4,100,878 (Leinfelt)), p. 1; Soren-sen Declaration, Exhibit C (U.S. Patent No. 3,066,527 (Stein)); id., Exhibit D (U.S. Patent No. 3,443,365 (Lee)); id., Exhibit H (U.S. Patent No. 3,465,707 (Kashiwaba)). However, none of the prior art references disclosed literally an elongated locking member comprised of a “hub” 52 from which several “retaining legs” 58 extend on each of which is a “resilient finger or retaining prong” 46 that engages “shoulders” (i.e., “notches”) 88, 90, 92 in the wall of the “bore” 82 to progressively lock the indicator in place. See Krisko patent, Figs. 6A, 6B, 6D, & 2A, supra; Sorensen Declaration, Exhibit I, cols. 4-5 (detailed description of Krisko patent). Thus, unlike the situation in Pioneer Magnetics, the amendments were not made to avoid prior art “containing” the equivalent in question. Under all of the circumstances revealed by the prosecution history, including the lack of any citation to prior art disclosing literally the structure of the NG Air Alert’s locking member, the court concludes that, “ ‘at the time of the amendment one skilled in the art could not reasonably be expected to have drafted a claim that would have literally encompassed the alleged equivalent.’ ” Festo, 344 F.3d at 1365 (quoting Festo, 535 U.S. at 741, 122 S.Ct. 1831, for this requirement to overcome the presumption of “total surrender” of equivalents). Rather, the amendments to the locking means limitations of the ’456 patent were made for reasons “tangential” to the equivalent in question. Id. at 1365 (quoting Festo, 535 U.S. at 740-41, 122 S.Ct. 1831, which identifies this as one of three criterion for overcoming the presumption). Therefore, EPC is not barred from attempting to prove that the NG Air Alert infringes the locking means limitations of the ’456 patent under the doctrine of equivalents. c. The “disengagement means” limitation Donaldson also argues that the Festo analysis impacts both the construction of the “disengagement means” limitation and EPC’s ability to assert infringement of that limitation under either literal or doctrine of equivalents infringement theories. The court turns next to consideration of these arguments. i. Arguments of the parties. Donaldson argues that Festo requires exclusion of any equivalents in the construction of the “disengagement means,” because this limitation was also narrowed during prosecution for reasons related to patentability. Therefore, Donaldson argues that EPC should be precluded from offering evidence on “equivalents” of the “disengagement means,” to prove either literal infringement or infringement under the doctrine of equivalents of this means-plus-function limitation. Furthermore, Donaldson argues that the court’s prior construction of this means-plus-function limitation is so broad that it allows EPC to recapture the broad scope of the limitation that was abandoned during prosecution of the ’456 patent. Donaldson argues that the court’s construction reads out of the law the requirement that a means-plus-function claim that is narrowed by the description of the specific structure and structural relationship be limited to the specific structure and structural relationship so described. Therefore, Donaldson contends that the court’s construction cannot stand. EPC argues that reconsideration of the court’s claim construction is not appropriate, because one motion to reconsider that construction has already been denied, and neither the law applicable to claim construction nor the facts have changed in the interim. EPC argues that the Festo decisions have no bearing whatsoever upon claim construction and the court’s original construction is well-reasoned and correct. Moreover, EPC argues that there was no narrowing of the “disengagement means” limitation for purposes of patentability, and even if there was, the amendments bore no more than a tangential relationship to the equivalent disengagement means in the NG Air Alert. In reply, Donaldson argues that the Fes-to decisions do, indeed, clarify the rules of claim construction, and thus, compel reconsideration of the court’s construction of the “disengagement means” limitation. Moreover, Donaldson reiterates that, under the Festo analysis, neither the court’s construction of the limitation, nor consideration of any infringement under the doctrine of equivalents is permissible. ii. The prior rulings. In his March 27, 2001, ruling on cross-motions for summary judgment in this case, after a “Mark-man hearing,” Judge Melloy construed the means-plus-function element of Claim 1 of the ’456 patent, which claims “ ‘means for selectively disengaging the interengagable notches so as to permit the diaphragm to return to its infold position when the vacuum in the first chamber is relatively low.’ ” See EPC I, 165 F.Supp.2d at 878 (quoting the ’456 patent, col. 7, lines 52-55). Judge Melloy noted that his task was to “determine the claimed function and identify the structure or structures which perform that function,” because “[t]he claim’s scope is limited to that structure and its equivalents.” Id. After reviewing the arguments of the parties, the language of the claim and the specification, as well as the applicable standards articulated by the Federal Circuit Court of Appeals for construing a means-plus-function claim, Judge Melloy explained his construction of what he called the “reset means” claim as follows: [T]he court agrees with EPC that the structure for selectively disengaging the interengagable notches cannot be limited to that which performs a “pivoting function.” The claim recites disengagement of interengagable notches on the locking and tubular members and the meaning of those components — locking member, tubular member, and interen-gagable notches — -has already been construed. It follows that the Court cannot construe the “selectively disengaging” function in a manner that would indirectly narrow those previously defined terms. As this Court reads Donaldson’s proposed interpretation, it would do just that by effectively limiting “locking member” and “notches” to a version which utilizes a pivoting movement in disengaging the notches on the locking and tubular members, as in the preferred embodiment. That embodiment, however, is merely one proposed actualization of the invention, and in another embodiment the locking member and in-terengagable notches could look quite different but still fall within the scope of the claim. The Court will not limit the legitimate breadth of that difference by requiring one particular disengagement method where the specification describes structure that can fully perform the function in a less restricted manner. Here, the Court agrees with EPC that that structure is the button which receives and transfers forces which overcome the reset button spring and move the locking member away from its engaged position so that the coiled compression spring can then push the diaphragm back to its infold position. EPC I, 165 F.Supp.2d at 880 (emphasis added). Donaldson moved the court to reconsider this construction of the “disengaging means” claim, arguing that Judge Melloy had improperly interpreted and applied recent Federal Circuit case law, thereby construing the “reset means” too broadly. See Opinion and Order, June 11, 2001 (docket no. 128), at 2. Judge Melloy denied Donaldson’s motion on June 11, 2001. Id. Judge Melloy concluded tha