Full opinion text
AMENDED MEMORANDUM OPINION AND ORDER KENNELLY, District Judge. Engate, Inc. holds the rights to several patents covering certain functions that can be used by court reporters and attorneys to enhance the utility of real-time transcription services. Engate sued several court reporting services, including the only two remaining defendants, Esquire Deposition Services, L.L.C., and Atkinson-Baker, Inc., alleging that they infringed the patents. The Court has construed several disputed elements of the patents, such as what “real time” means. Engate, Inc. v. Esquire Deposition Services, L.L.C., No. 01 C 6204, 2003 WL 223306 (N.D.Ill. Jan. 30, 2003) (defining “real time” to mean “as instantaneously as possible, limited by the ability of the reporter to transcribe text, the ability of the [computer-aided transcription] system to convert the transcribed text into readable text, and the ability of the software/hardware that is directly connected to the transcription means to display the converted text”). The defendants sought partial summary judgment on Engate’s claim of direct infringement, and the Court granted the motion, finding the defendants could not be held vicariously liable for any infringement by independent contractor court reporters who provide the bulk of the defendants’ deposition services. Engate, Inc. v. Esquire Deposition Services, L.L.C., 236 F.Supp.2d 912 (N.D.Ill.2002). The Court subsequently granted the defendants’ motion for summary judgment on Engate’s claim that the defendants’ employee court reporters infringed Engate’s patents, holding Engate had failed to offer any evidence that the employees “have actually performed the feature functionalities disclosed in Engate’s patents.” Engate, Inc. v. Esquire Deposition Services, L.L.C., No. 01 C 6204, 2003 WL 22117805, at *8 (N.D.Ill. Sept. 10, 2003). Most recently, the Court granted the defendants’ motion for summary judgment on Engate’s claim that the defendants induced court reporters and lawyers to directly infringe Engate’s patents. Engate, Inc. v. Esquire Deposition Services, L.L.C., 01 C 6204, 2004 WL 609800 (N.D.Ill. March 26, 2004). Although all of Engate’s claims against the defendants have been adjudicated, the case remains before the Court on two counterclaims filed by the defendants. The first counterclaim alleges that twenty-two of the twenty-six claims Engate contended the defendants had infringed are invalid because, among other reasons, they were in public use, on sale or described in a printed publication at least one year before Engate filed its patent applications. See 35 U.S.C. § 102(b). The second counterclaim — filed exclusively by Esquire — alleges in essence that Engate sued the defendants for infringement, knowing it could not prove its case, in hopes of forcing the defendants to sign licensing agreements with Engate to avoid costly litigation. Engate asks the Court to dismiss Esquire’s unfair competition claim. Esquire, in turn, has moved for summary judgment on its unfair competition claim and, with Atkinson-Baker, seeks summary judgment on the invalidity claim. For the reasons explained below, the Court grants in part and denies in part the defendants’ motion for summary judgment as to their counterclaim of invalidity. The Court grants Engate’s motion to dismiss Esquire’s unfair competition claim and denies Esquire’s motion for summary judgment on the same claim. Standard of Review As we have stated previously, summary judgment is appropriate in a patent case, as in any other case, “ ‘where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” C.R. Bard, Inc. v. Advanced Cardiovascular Systems, Inc., 911 F.2d 670, 672 (Fed.Cir.1990) (quoting Fed.R.Civ.P. 56(c)). In assessing a summary judgment motion, the Court’s “function is not to weigh the evidence but merely to determine if ‘there is a genuine issue for trial.’ ” Bennett v. Roberts, 295 F.3d 687, 694 (7th Cir.2002) (citation omitted). The Court evaluates admissible evidence in the record in the light most favorable to the nonmoving party. Chiuminatta Concrete Concepts, Inc. v. Cardinal Industries, Inc., 145 F.3d 1303, 1307 (Fed.Cir.1998). But “[t]he non-movant will successfully oppose summary judgment only when it presents ‘definite, competent evidence to rebut the motion.’ ” Vukadinovich v. Board of School Trustees of North Newton School Corp., 278 F.3d 693, 699 (7th Cir.2002) (citation omitted). The Court must keep in mind that “[t]he purpose of the summary process is to avoid a clearly unnecessary trial; it is not designed to substitute lawyers’ advocacy for evidence, or affidavits for examination before the fact-finder, when there is a genuine issue for trial.” Continental Can Co. USA v. Monsanto Co., 948 F.2d 1264, 1265 (Fed.Cir.1991) (citations omitted). Invalidity The Court must presume Engate’s patents are valid. 35 U.S.C. § 282. “The statutory presumption of validity under 35 U.S.C. § 282 puts the burden of proving invalidity on the party asserting it and the burden never shifts to the patentee.” Sinskey v. Pharmacia Ophthalmics, Inc., 982 F.2d 494, 498 (Fed.Cir.1992) (citing Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534 (Fed.Cir.1983)). The presumption of validity “can be overcome only through clear and convincing evidence.” Eli Lilly & Co. v. Barr Laboratories, Inc., 251 F.3d 955, 962 (Fed.Cir.2001) (citing U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1563 (Fed.Cir.1997)). “Thus, a moving party seeking to invalidate a patent at summary judgment must submit such clear and convincing evidence of invalidity so that no reasonable jury could find otherwise.” Id. The defendants argue that twenty-two claims in Engate’s patents are invalid because they were in public use, on sale or described in a printed publication at least one year before Engate filed its patent applications. The defendants’ argument is based on 35 U.S.C. § 102(b), which states that “[a] person shall be entitled to a patent unless — ... (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.” To demonstrate that Engate’s patent claims were anticipated, defendants cite several published articles describing the use of real-time transcription services in several U.S. courtrooms and the advent of closed captioning of television programming. Engate has two general responses to the defendants’ arguments. First, Engate argues that any uses of the patented technology prior to the relevant critical date were experimental and, therefore, do not invalidate the patents. Second, Engate argues that even if real-time transcription services available in courtrooms prior to the critical date were not experimental, the defendants have failed to prove that the technology in public use, on sale or described in printed publications had all of the features covered by Engate’s patents. We will evaluate each argument in turn and then examine the validity of each claim at issue. A. Experimental usage The Federal Circuit has explained that “[w]hether a patent is invalid due to public use under § 102(b) is a question of law based on underlying questions of fact.” Smithkline Beecham Corp. v. Apotex Corp., 365 F.3d 1306, 1316 (Fed.Cir.2004) (citing 3M Co. v. Chemque, Inc., 303 F.3d 1294, 1301 (Fed.Cir.2002)). “Public use includes ‘any use of [the claimed] invention by a person other than the inventor who is under no limitation, restriction or obligation of secrecy to the inventor.’ ” Netscape Communications Corp. v. Konrad, 295 F.3d 1315, 1320 (Fed.Cir.2002) (citing Petrolite Corp. v. Baker Hughes Inc., 96 F.3d 1423, 1425 (Fed.Cir.1996)). Public use does not include “[t]he use of an invention by the inventor himself, or of any other person under his direction, by way of experiment, and in order to bring the invention to perfection.” Elizabeth v. Pavement Company, 97 U.S. 126, 134, 7 Otto 126, 24 L.Ed. 1000 (1877) (citations omitted). This experimental use doctrine applies “ ‘[w]hen an evaluation period is reasonably needed to determine if the invention will serve its intended purpose.’ ” New Railhead Manufacturing, L.L.C. v. Vermeer Manufacturing Co., 298 F.3d 1290, 1297 (Fed.Cir.2002) (quoting Seal-Flex, Inc. v. Athletic Track & Court Construction, 98 F.3d 1318, 1324 (Fed.Cir.1996)). “Once an inventor realizes that the invention as later claimed indeed works for its intended purpose, further ‘experimentation’ may constitute a barring public use.” Id. (citing RCA Corp. v. Data Gen. Corp., 887 F.2d 1056, 1061 (Fed.Cir.1989)). And the invention need not “function perfectly in order to be reduced to practice or considered as on sale or in public use. All that is necessary is that the invention be commercially operable; it may have problems which are not due to fundamental defects.” Harrington Manufacturing Co., 815 F.2d at 1481 (internal quotation marks omitted; quoting In re Theis, 610 F.2d 786, 794 n. 11 (Cust. & Pat.App.1979)). The experimental use doctrine does not apply to “market testing where the inventor is attempting to gauge consumer demand for his claimed invention. The purpose of such activities is commercial exploitation and not experimentation.” In re Smith, 714 F.2d 1127, 1135 (Fed.Cir.1983) (citations omitted). The experimental use doctrine “does not shift the burden of proof from the accused infringer to the patentee. Rather, it operates to negate application of the public use bar.” SmithKline Beecham Corp., 365 F.3d at 1317 (citing EZ Dock, Inc. v. Schafer Systems, Inc., 276 F.3d 1347, 1351-52 (Fed.Cir.2002)). That means that “once the challenger of the patent has proven by clear and convincing evidence that the invention was in public use before the critical date, the burden of production shifts to the patentee to provide sufficient evidence to create a genuine issue of material fact that the use qualifies as experimental.” Id. The court must “look to the totality of the circumstances when evaluating whether there has been a public use within the meaning of section 102(b).” Netscape Communications Corp., 295 F.3d at 1320 (citing Sinskey, 982 F.2d at 498). And the court must do so while keeping in mind “the policies underlying the public use bar.” Id. (citing Tone Bros., Inc. v. Sysco Corp., 28 F.3d 1192, 1198 (Fed.Cir.1994)). “The circumstances may include: the nature of the activity that occurred in public; the public access to and knowledge of the public use; whether there was any confidentiality obligation imposed on persons who observed the use; whether persons other than the inventor performed the testing; the number of tests; the length of the test period in relation to tests of similar devices; and whether the inventor received payment for the testing.” Id. (citations omitted). Which factors are determinative varies on a ease-by-case basis. For example, “[a]lthough a written promise of confidentiality is a factor to be considered in appropriate circumstances, such as when persons other than the patentee conduct the experiments, the absence of such a promise does not make a use ‘public’ as a matter of law, or outweigh the undisputed fact that no information of a confidential nature was communicated to others.” Allied Colloids Inc. v. American Cyanamid Co., 64 F.3d 1570, 1576 (Fed.Cir.1995) (citations omitted). Similarly, “testing at the potential customer’s site does not raise a public use bar as a matter of law.” Id. Engate argues that the uses of real-time transcription services and related functions described in the newspaper and journal articles cited by the defendants were experimental. We will evaluate each claimed public use to determine whether the defendants have made a prima facie case that the pre-critical date uses were public uses and whether Engate has raised a genuine issue of fact that the uses were actually experimental. 1. Computer-integrated courtrooms in the United States In the mid-1980s, the courtrooms of federal district judges Prentice Marshall in Chicago and Roger Strand in Phoenix and a state court judge in Detroit began featuring real-time transcription services. The Courtroom of the Future, Time, Aug. 4, 1986, at 60 (hereinafter “Time”) (Defs.’ Ex. 3.6); Diane Knox, Phoenix’s Courtroom of the Future, The American Lawyer, May 1991, at 4 (Defs.’ Ex. 4.6). In these courtrooms, referred to as computer-integrated courtrooms or CICs, the stenographer’s keystrokes were translated real time into readable English transcripts that appeared on computers for the judge and parties. Time, supra. The National Court Reporters Association equipped the three courtrooms for computer-aided transcription (“CAT”) “to showcase court reporter technology.” Knox, supra, at 6. By 1990, court systems in Cook County, Illinois, El Paso, Texas, and St. Paul, Minnesota, had provided funding for CICs, as had the Columbus Bar Association and Ohio Shorthand Reporters Association. Martin H. Block, Computer-Integrated Courtrooms: Moving the judicial system into the twenty-first century, Trial, September 1990, at 52 (Defs.’ Ex. 8). And by 1991, local court reporter associations, bar associations and courts had funded ten state and federal computer-integrated courtrooms, with six others on the way. Knox, supra, at 6. The hardware and software in the three original CICs were repeatedly updated. Merilyn A. Sanchez, The Computer-Integrated Courtroom, Hearsay, October 1990, at 6 (Defs.’ Ex 23). As of 1991, some CICs relied on Stenograph software; others relied on Xscribe software. Jill Berman Levy, Written remarks for the Conference on Technologies in Court Reporting sponsored by the Institute for Court Management of the National Center for State Courts and the National Court Reporters Association 12-13 (Feb. 15, 1991) (Defs.’ Ex. 9). At the heart of a computer-integrated courtroom is a system known as CAT, or computer-aided transcription, which translates a court reporter’s phonetically based keystrokes into English. Since every court reporter has individual ways of stroking various words, the translation is based on a personal “dictionary” developed by each reporter based on his or her particular stroking patterns. Court reporters have used CAT technology to make preparation of transcripts easier since the late seventies. But the computer-integrated courtroom takes the technology one step further by using CAT to provide an on-screen display of the transcript of courtroom proceedings just three seconds after the words are taken down by the court reporter. Id. Computers for the judge and lawyers could be hooked up to the court reporter’s CAT system so that they received real-time transcripts of the proceedings. Block, supra, at 51. The Phoenix CIC used a local area network (“LAN”) to link the courtroom computers to a common file server. Roger G. Strand, The Courtroom of the Future, The Judges’ Journal, Spring 1989, at 10 (Defs.’ Ex. 12). The computers on the local network were “located on the judge’s bench, at each counsel’s table, and at the courtroom deputy clerk’s station, the court reporter’s position, the secretary’s desk, and each law clerk’s desk.” Id. at 10. Although the computers were all linked, “[t]he LAN file server provide[d] each party and the court with separate space in the data base and with separate security codes, in order to ensure that proper handling is accorded to these confidential and privileged litigation materials.” Id. at 11. CICs utilized litigation support software to enhance the utility of having real-time, electronic transcripts. For example, the litigation support software used in Judge Strand’s courtroom enabled the parties to search transcripts electronically, annotate the text and “ ‘issue-code’ their copies of the testimony as it happens, by assigning numbers to subjects of particular interest and marking the transcript electronically whenever the subject is mentioned.” Knox, supra, at 9. The software could search for particular words, such as “objection,” their synonyms or “pairs of words that appear near to one another (every time, for example, a client’s name is mentioned within ten words of the word cocaine).” Id.; see also, e.g., Ronald F. Madden, The Coming of the Electronic Courtroom, 5 Yearbook of Law Computers & Technology 9, 13 (1991) (Defs.’ Ex. 10) (explaining how a judge could search a completed transcript for all occurrences of the word “objection” within five lines of the words “sustained” or “overruled”). And “[a]ttorneys c[ould] also program the computer to automatically highlight certain words whenever they occur.” Knox, supra, at 9. The systems users could take notes during the trial that could be “printed out with the trial transcript, either interspersed with the text or indexed to the text and printed separately.” Id. Courtroom computers also had access to LEXIS; WESTLAW; the Federal Judicial Center’s docketing system CHASER; ASSYST, a program designed by the U.S. Sentencing Commission to aid in computing sentences under the Federal Sentencing Guidelines; and ABA/Net, which included an “electronic mail and PC-to-fax transmission capability” and enabled “multiple users to edit documents on-screen collectively.” Knox, supra, at 8; see also Strand, supra, at 47-48. Using these features in concert with real-time transcription, “[s]ome innovative users have found that it is even possible to telecommunicate back to the home office the realtime proceedings as they are occurring in the courtroom.” Madden, supra, at 14. The use of real-time transcription in these courtrooms plainly constituted a public use, not an experimental one. The CICs were sponsored by the National Court Reporters Association to display the new services court reporters were capable of providing. The judges and lawyers used the technology on a day-to-day basis to do their work; they were not testing the efficacy of the system for software developers. Furthermore, no promise of confidentiality was imposed on the users. Quite the contrary, articles about the CICs, featuring interviews with judges and lawyers who used the system, were published in well-known magazines with national circulation. Although Xscribe Corp. donated the real-time transcription software used in the Phoenix courtroom, the Knox article discusses prices for setting up CICs, making clear that Xscribe’s software was on sale. Knox, supra, at 6. When the cost of the technology is published, the court can infer that the seller wants to exploit the product commercially. See Harrington Manufacturing Co., 815 F.2d at 1481 (footnote omitted). Thus we conclude that the defendants have shown by clear and convincing evidence that the CICs in Chicago, Detroit and Phoenix were in public use, and Engate has failed to raise a genuine issue of fact that the CICs served a primarily experimental purpose. The use of functions that enhanced real-time transcription services in the CICs constituted public uses that occurred prior to the critical date of the patents at issue in this case. 2. Closed captioning of television programs The National Captioning Institute (“NCI”) began providing real-time captioning of television broadcasts in 1982. Laura Malt, Behind the screen: Getting captions on the air, Electronic Media, March 19, 1990, at 14 (Defs.’ Ex. 5.1); Marshall S. Jorpeland, Court Reporter Helps Make The Silent Screen Speak, NSR, April 1982, at 21 (Defs.’ Ex. 18). When real-time closed captioning was first offered, it took seven seconds for the text of spoken words to appear on the television screen. Malt, supra. By 1990, it took only four seconds for a transcription of the spoken words to appear on the screen. Id. Using a stenoptype machine, a real-time captioner “breaks” spoken words into phonetic strings. That information is sent electronically to a computer at NCI. The phonetic string is translated into words by computer and then the captioning information is sent back to the broadcast origin point where it merges with a regular broadcast signal and is transmitted. Decoder boxes, which cost about $200, “grab” the signal, translate the data into text and display the letters on the screen along with the picture. Jerry Wolffe, United Press International, Nov. 11. 1991 (Defs.’ Ex. 5.2). The text would appear on the bottom third of the television screen, scrolling three lines at a time. Malt, supra. Closed captioning used the same CAT technology used for real-time transcription in courtrooms. Madden, surpa, at 12; Donald R. Johnston, Computers: Shorthand For Change, Fulton County Daily Report, March 13, 1989 (Defs.’ Ex. 24). By 1991, NCI performed closed captioning for all prime-time network television broadcasts, cable and syndicated television shows, proceedings in the U.S. House of Representatives, and home videos. Wolffe, supra; Madden, supra, at 12; Karen Foerstel, House Debate Now Available Closed-Caption, Roll Call, Feb. 25, 1991 (Defs.’ Ex. 19). NCI elosed-eap-tioned live programing, such as Anita Hill and Clarence Thomas’ testimony during Justice Thomas’ Senate confirmation hearings, Wolffe, supra, as well as news updates about the Persian Gulf War. The Persian Gulf War: Answering the Call to Action, The Washington Post, Jan. 27, 1991, at A26 (Defs.’ Ex. 17). Engate has failed to raise a genuine issue of fact that any of these uses of closed captioning were merely experimental; the defendants have proven by clear and convincing evidence that the prevalence of closed captioning by the early 1990s constituted public use. B. Whether closed captioning and technology used in CICs anticipated En-gate’s patents Having found that closed captioning and the use of real-time court reporting and litigation support software in courtrooms as of the early 1990s were public rather than experimental uses, the Court must consider whether these public uses render Engate’s patents invalid. En-gate argues we cannot grant the defendants’ motion for summary judgment on invalidity because the defendants have not proven that the technology in public use, on sale or described in printed publications had all of the features covered by Engate’s patents. Engate is correct that a precritical date description of an invention in a printed publication invalidates a patent only if “the four corners of a single, prior art document describe every element of the claimed invention, either expressly or inherently, such that a person of ordinary skill in the art could practice the invention without undue experimentation.” Advanced Display Systems, Inc. v. Kent State University, 212 F.3d 1272, 1282 (Fed.Cir.2000) (citations omitted). Similarly, “ ‘[f]or a prior art reference to anticipate in terms of 35 U.S.C. § 102, every element of the claimed invention must be identically shown in a single reference.’ ” In re Bond, 910 F.2d 831, 832 (Fed.Cir.1990) (quoting Diversitech Corp. v. Century Steps, Inc., 850 F.2d 675, 677 (Fed.Cir.1988)); see also Apple Computer, Inc. v. Articulate Systems, Inc., 234 F.3d 14, 20 (Fed.Cir.2000) (citation omitted) (“Anticipation under 35 U.S.C. § 102 requires the disclosure of a single piece of prior art of each and every limitation of a claimed invention.”). However, this rule is not without some pliancy. The single prior art disclosure “need not be express, but may anticipate by inherency where it would be appreciated by one of ordinary skill in the art.” Glaxo Inc. v. Novopharm Ltd., 52 F.3d 1043, 1047 (Fed.Cir.1995) (citing Continental Can Co. USA, 948 F.2d at 1268). The Federal Circuit has explained that “ ‘[u]nder the principles of inherency, if the prior art necessarily functions in accordance with, or includes, the claimed limitations, it anticipates.’” In re Cruciferous Sprout Litigation, 301 F.3d 1343, 1349 (Fed.Cir.2002) (quoting MEHL/Biophile International Corp. v. Milgraum, 192 F.3d 1362, 1365 (Fed.Cir.1999)). “This modest flexibility in the rule that ‘anticipation’ requires that every element of the claims appear in a single reference accommodates situations where the common knowledge of technologists is not recorded in the reference; that is, where technological facts are known to those in the field of the invention, albeit not known to judges.” Continental Can Co. USA, 948 F.2d at 1269. “Whether a prior art reference anticipates a patent claim” and “[wjhether a claim limitation is inherent in a prior art reference” are questions of fact. Finnigan Corp. v. International Trade Commission, 180 F.3d 1354, 1362 (Fed.Cir.1999) (citations omitted). Engate argues that the articles cited by the defendants do not describe the technology used prior to the critical date with sufficient specificity to determine whether the pre-critical date technology had all the features disclosed in En-gate’s patents. Engate further argues that the declarations submitted by the defendants to supplement any vagaries in the articles do not satisfy the defendants’ burden of proof. Engate correctly states that “[t]he law has long looked with disfavor upon invalidating patents on the basis of mere testimonial evidence absent other evidence that corroborates that testimony.” Finnigan Corp., 180 F.3d at 1366. “Generally, oral testimony of prior public use must be corroborated in order to invalidate a patent.” Juicy Whip, Inc. v. Orange Bang, Inc., 292 F.3d 728, 737-38 (Fed.Cir.2002) (citing Finnigan Corp., 180 F.3d at 1366-68). “[TJhe need for corroboration exists regardless of whether the party testifying concerning the invalidating activity is interested in the outcome of the litigation (e.g., because that party is the accused infringer) or is uninterested but testifying on behalf of an interested party.” Finnigan Corp., 180 F.3d at 1367. That means that even testimony of precritical date public use by a disinterested witness must be corroborated. Id. at 1367-68 (discussing the facts in The Barbed-Wire Patent, 143 U.S. 275, 12 S.Ct. 443, 36 L.Ed. 154 (1892)). The Federal Circuit has explained that this is because “ ‘[wjitnesses whose memories are prodded by the eagerness of interested parties to elicit testimony favorable to themselves are not usually to be depended upon for accurate information,’ and therefore such testimony rarely satisfies the burden upon the interested party, usually the accused infringer, to prove invalidity by clear and convincing evidence.” Id. at 1366 (quoting Barbed-Wire Patent, 143 U.S. at 284, 12 S.Ct. 443). The defendants argue the corroboration requirement does not apply to disinterested non-parties. They rely on Thomson v. Quixote Corp., 166 F.3d 1172, 1176 (Fed.Cir.1999), in which the Federal Circuit “h[e]ld that corroboration is required only when the testifying inventor is asserting a claim of derivation or priority of his or her invention and is a named party, an employee of or assignor to a named party, or otherwise is in a position where he or she stands to directly and substantially gain by his or her invention being found to have priority over the patent claims at issue.” Although the Federal Circuit held in Fin-nigan, four and a half months after Thomson, that the corroboration requirement applies to disinterested non-parties, the defendants argue that the Court must follow Thomson because the Finnigan court merely distinguished Thomson but did not overrule it (and lacked the authority to do so). The defendants are correct that the Court cannot disregard Thomson, but because Finnigan has never been overruled, the Court cannot ignore that case either. Thus the Court is faced with an intra-circuit split. The Court questions whether Finni-gan ’s strong version of the corroboration requirement — born out of a nineteenth century dispute — should remain the standard for proving invalidity in the twenty-first century. The Court can think of few areas of law in which one witness’s testimony is always insufficient to meet the applicable burden of proof. Treason has a similarly strict corroboration requirement, see U.S. Const. art. III, § 3, and the federal perjury statute used to have a two-witness rule, see Hubbard v. United States, 514 U.S. 695, 709, 115 S.Ct. 1754, 131 L.Ed.2d 779 (1995), but aside from that, there is no area of federal law where a similar rule applies. It is not all that easy to understand why patent invalidity, of all things, should rank with treason in terms of the need for special corroboration. Nonetheless, the Court is not prepared to disregard Finnigan and several subsequent cases that have relied on Finnigan’s understanding of the corroboration requirement. The Court has found only one Federal Circuit case in which the court, relying on Thomson, did not require corroboration of a disinterested or nonparty witness. See Eisenberg v. Alimed, Inc., 243 F.3d 555 (Fed.Cir.2000) (unpublished). See also Ecolab, Inc. v. Gardner Mfg. Co., No. 98-2294, 2002 WL 31641260 (D.Minn. Nov. 20, 2002) (following Thomson in ruling on motion to reconsider opinion following Finni-gan ). In contrast, several published Federal Circuit cases relying on Finnigan have said testimony must be corroborated regardless of the witness’s level of interest in the litigation. See, e.g., TypeRight Keyboard Corp. v. Microsoft Corp., 374 F.3d 1151, 1159 (Fed.Cir.2004); Dow Chemical Co. v. Mee Indus., Inc., 341 F.3d 1370, 1378 (Fed.Cir.2003); Juicy Whip, Inc., 292 F.3d at 738; Texas Digital Systems, Inc. v. Telegenix, Inc., 308 F.3d 1193, 1217 (Fed.Cir.2002). We agree with Judge Sachs of the Western District of Missouri who, in deciding a summary judgment motion, said that even though Thomson has not been overruled, in light of all the “[sjubsequent decisions [that] have either returned to the rule as it was enunciated before Thomson, see Oney v. Ratliff, 182 F.3d 893, 896-97 (Fed.Cir.1999), or have distinguished Thomson under circumstances suggesting that its holding may not be viable, see Finnigan, 180 F.3d at 1367-68,” the Court’s “safe[st]” option is “to operate under the assumption that the corroboration requirement still exists.” K & K Jump Start/Chargers, Inc. v. Schumacher Electric Corp., 82 F.Supp.2d 1012, 1018 n. 7 (W.D.Mo.2000). One can only hope that the Federal Circuit will resolve the conflict created by its decisions on this issue. Although the Court will follow the strong version of the corroboration requirement, we do not agree with Engate’s overly narrow definition of what constitutes corroborating evidence. Engate contends that testimonial evidence from multiple witnesses alone is never sufficient to invalidate a patent — that is, that testimonial evidence can never be corroborated by testimonial evidence. This view is not wholly unsupported by case law. The Federal Circuit has explained that “the Supreme Court has defined the necessity of corroboration not with reference to the level of interest of the testifying witness, but rather because of doubt that testimonial evidence alone in the special context of proving patent invalidity can meet the clear and convincing evidentiary standard to invalidate a patent.” Finnigan Corp., 180 F.3d at 1368. But Engate’s reading of Federal Circuit precedent overstates the level of skepticism with which courts must regard testimonial evidence when considering the validity of a patent. The year before the Federal Circuit decided Finnigan, it implicitly accepted that testimonial evidence can satisfy the corroboration requirement under certain circumstances, Woodland Trust v. Flowertree Nursery, Inc., 148 F.3d 1368, 1371 (Fed.Cir.1998), and it has stated as recently as last month that the “oral testimony of a disinterested party can serve to satisfy the corroboration requirement.” TypeRight Keyboard Corp., 374 F.3d at 1159. See also Sandt Technology, Ltd. v. Resco Metal & Plastics Corp., 264 F.3d 1344, 1351 (Fed.Cir.2001) (citing Woodland Trust, 148 F.3d at 1371). When assessing whether testimonial evidence corroborates other testimonial evidence, the court should consider (1) the relationship between the corroborating witness and the alleged prior user, (2) the time period between the event and trial, (3) the interest of the corroborating witness in the subject matter in suit, (4) contradiction or impeachment of the witness’ testimony, (5) the extent and details of the corroborating testimony, (6) the witness’ familiarity with the subject matter of the patented invention and the prior use, (7) probability that a prior use could occur considering the state of the art at the time, (8) impact of the invention on the industry, and the commercial value of its practice. Woodland Trust, 148 F.3d at 1371 (quoting Price v. Symsek, 988 F.2d 1187, 1195 n. 3 (Fed.Cir.1993)). When the patentee comes forth with evidence challenging the credibility of the witnesses claiming prior use or invention, the trier of fact must implicitly make a credibility determination in finding that the testimony of one witnesses (or documents, for that matter) corroborates the testimony of the witness whose credibility has been challenged. This has serious implications for the party seeking to invalidate a patent on summary judgment. A judge cannot make credibility determinations when reviewing a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus if the patentee comes forward with evidence sufficient to call into question the credibility of an affiant or deponent whose testimony is relied upon by the movant, the court cannot grant summary judgment as to invalidity, even if the party seeking the declaration of invalidity has come forth with corroborating testimonial or documentary evidence. The patentee must do more than simply “assert[ ] that the movants [sic] witnesses are not to be believed.” TypeRight Keyboard Corp., 374 F.3d at 1158. “However, summary judgment is not appropriate where the opposing party offers specific facts that call into question the credibility of the movants [sic] witnesses.” Id. (citing Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 628-29, 64 S.Ct. 724, 88 L.Ed. 967 (1944)). Providing a basis to believe the witness has an interest in the outcome of the litigation may be sufficient to create a genuine issue of fact as to the witness’s credibility. With these standards in mind, the Court will evaluate each claim the defendants argue is invalid to determine whether they are entitled to summary judgment. 1. Claim 5 of U.S. Patent No. 5,740,24.5 Claim 5 of the ’245 patent covers a transcription network for use by attorneys examining witnesses, in which a CAT system translates the court reporter’s strokes in real time to words and numbers and sends the alphabetic and numeric transcript to computers loaded with software that determines whether the transcript contains words previously selected by the user and performs a pre-defined function once the words are located. The application for this patent was filed on November 15, 1994, but the critical date for this patent — and all the other patents at issue — is March 24, 1992, because Engate’s patents are accorded the filing date of its first patent application, which was filed on March 24, 1993. See 35 U.S.C. § 120. An element essential to this claim — and all other claims the defendants seek to invalidate — is a CAT system that converts a stenographer’s strokes into readable language in real time and transmits the transcript to computers used by attorneys. Articles describing these features in the early 1990s leave no doubt that this technology was available in courtrooms prior to March 24, 1992, the earliest critical date of any of Engate’s patents. As quoted above, Diane Knox described how a CAT system works in a 1991 issue of The American Lawyer. Knox, supra, at 6. The year before, Martin Block wrote in the periodical Trial that: The court reporter’s computer-aided transcription (CAT) system underlies and supports the CIC, integrating recent advances in computer technology. Ideally, computer terminals placed at the counsels’ tables and the judge’s bench can be tied into the court reporter’s CAT system. This allows judges, lawyers, and litigants to see English-language text of testimony on their computer monitors moments after it is given. Block, supra, at 51. Rather than repetitively recount that the CAT system that is the building block of all Engate’s claims was in public use prior to the earliest critical date of Engate’s patents, the Court adopts the above analysis as to these elements of Claim 5 of the ’245 patent and applies it to our analysis of the validity of Engate’s other patented claims. The remaining elements of Claim 5 were also in public use prior to the critical date. Knox explained that “[a]ttorneys c[ould] also program the computer to automatically highlight certain words whenever they occur — court reporter Sanchez, for example, highlights the word objection in Judge Strand’s file so he can easily find the questions or statements that prompt objections.” Knox, supra, at 9. Engate has failed to come forth with evidence raising a genuine issue of fact as to invalidity. The Court finds by clear and convincing evidence that each element of this claim was anticipated by the CICs in Chicago, Detroit and Phoenix. Engate argues that the articles cited by the defendants and relied upon by the Court do not anticipate the claim because no one article describes all the elements of the claim. If the Court were concluding that Claim 5 is invalid because it was anticipated by a printed publication, En-gate would be correct that the publication would have to include — either explicitly or inherently' — every element of the claim. However, the basis for our conclusion that Claim 5 is invalid is that the technology described in the claim was in public use prior to the critical date. The Court cites the articles as evidentiary support for what technology was in use in the CICs, not as an independent ground for finding the claim invalid. The Court can rely on several sources to describe all the technological elements available in the courtrooms that — when used together — constituted functionalities claimed in Engate’s patents. 2. Claim 7 of U.S. Patent No. 6,026,395 Claim 7 of the ’395 patent covers the capability to conduct natural language or Boolean logic searches on a real-time transcript while it is being generated. The application for this patent was filed on July 1, 1999. The defendants rely on two declarations to prove that searches could be conducted while the transcript was being generated and that they could use Boolean terms. Brent Sandstrom, who developed the Discovery and DiscoveryZX software, explained: Searching a real-time transcript was available in DiscoveryZX prior to March 24, 1992. This real-time feature was inherited from the non-real-time version of the software. In real-time application, the court reporter generated a transcript, which was immediately sent to the judge’s terminal and/or attorney’s terminal, typically a PC or laptop, where it was displayed. The transcript was indexed in real-time. In different configurations, the real time transcript might be indexed stored either on a dedicated real-time convert workstation or on an attorney station that was running the convert software.... This index was used for various purposes, including responding to search requests. In use, a judge or an attorney would input a search request including search terms and optionally including Boolean logic. The system would identify one or more portions of either the real-time transcript or an earlier transcript corresponding to the search request. The software would display, as a court reporter continued to generate the real-time transcript, at least a portion of the real-time transcript that was responsive to the search request. Sandstrom Decl. ¶ 12. Judge Strand’s court reporter, Merilyn Sanchez, also explained in her declaration that the technology in use prior to the critical date enabled Boolean logic searches of the real-time transcript. Prior to March 24, 1992, a search routine within the software could be initiated during a court proceeding, such that during the generation of the transcript, the user could search the transcript for a particular word or phrase. In real-time application, I generated a transcript which was immediately sent to the judge’s terminal and/or attorney’s terminal, typically a PC, where it was displayed and stored. (It also was stored by me on my CAT.) The judge or an attorney could input a search request including search terms and optionally including Boolean logic. Each user could independently search and identify one or more portions of the real-time transcript corresponding to the search request. The software would display (as I continued to generate- the real-time transcript) at least a portion of the real-time transcript that was responsive to the search request. Sanchez Decl. ¶ 9. Engate argues the Court must deny the defendants’ motion because two declarations are never sufficient to invalidate a patent. As we previously explained, this misstates the law. Applying the Woodland Trust factors, the Court must consider whether Sanchez’s declaration corroborates Sandstrom’s declaration. Sanchez, who served as Judge Strand’s court reporter from 1986 to 1992 and remains a court reporter for the U.S. District Court in Phoenix, has no interest in the outcome of this litigation other than the fact that the defendants sought her testimony. She also has no relationship with Sandstrom other than a few conversations they had in 1989 when the Phoenix CIC used Discov-eryZX. Sandstrom Decl. ¶3. Yet their descriptions of the technological capabilities of litigation-support software are reinforcing. Although Sanchez’s declaration recounts her activities more than ten years ago, she has an extensive familiarity with real-time court reporting and her declaration describes the capabilities of the Phoenix CIC with precision and detail. Furthermore, given the numerous technological capabilities of the Phoenix CIC, her testimony is consistent with the state of the art at the time. Therefore’,’ the Woodland Trust test indicates Sanchez’s declaration can be used as corroborative evidence. However, as the developer of software with capabilities patented by Engate, Sandstrom has the type of interest in these proceedings that has given rise to the Federal Circuit’s skepticism about testimonial -evidence. See Finnigan Corp., 180 F.3d at 1367. Under the Federal Circuit’s corroboration requirement, neither Sanchez nor Sandstrom’s declarations standing alone are sufficient to invalidate Engate’s claim. But to rely on Sand-strom’s declaration- — even if in concert with the declaration of Sanchez, who is a very compelling source — would require the Court implicitly to make a credibility determination about Sandstrom. This the Court cannot do on a motion for summary judgment. For now, the Court is restricted by the confínes of Fed.R.Civ.P. 56(c). The defendants argue that Sandstrom’s declaration is not the only evidence that corroborates Sanchez’s declaration. It is true that several articles explained that users could search transcripts for terms. See, e.g., Strand, supra, at 10-11; Knox, supra, at 9. But the articles do not explicitly state that users could search the real-time transcript. The defendants argue that is what the articles imply. Sanchez wrote in her 1990 article that litigation support software “enables the participants in the courtroom to electronically search the record for something that occurred five minutes or five days previously.” Sanchez, supra, at 7. And B.J. Shorak wrote in 1989 that litigation support software “allows attorneys to review prior testimony on their monitors during cross-examination without having to interrupt the proceedings to ask the reporter to search through pages of notes. Instead, at the touch of a button, the computer finds the testimony in question and flashes it onto the monitor.” B.J. Shorak, Computer Courtrooms: Views of the National Shorthand Reporters Association, the Advocate, October 1989, at 43 (Defs.’ Ex. 11). Perhaps it would be reasonable to infer that any software that vitiates the need to ask the court reporter to read back recent testimony must enable users to search the real-time transcript. But we cannot infer that the searching described in the articles used Boolean logic. The defendants argue that to anticipate, the articles need not mention Boolean searching, because the parties have agreed that Claim 7 is anticipated by any reference that allows for either natural language or Boolean searches. This is well and good, but there is nothing in the articles from which we can infer that the searches used natural language either; they just as easily could have involved simple scrolling back through the text until the user found what he or she was seeking. Because the articles fall short of describing every limitation of Claim 7, they neither corroborate all the portions of Sanchez’s declaration necessary to entitle the defendants to summary judgment invalidating the patent, nor do they constitute anticipating printed publications. The defendants argue that user manuals and promotional materials for the software programs DiscoveryZX and CaseView constitute printed publications that invalidate Claim 7. The 1989 user manual for Discov-eryZX version 3.0 explains how the user can search a document for a word, such as “insurance.” Defs.’ Ex. 4.1 at Introduction — 11. The defendants admit that version 3.0 alone did not have real-time capabilities, so the manual cannot anticipate Claim 7. But the defendants argue Discov-eryZX version 3.1 had real-time capabilities; the version 3.1 manual incorporates by reference all the functions, such as searching, described in the version 3.0 manual. The defendants’ argument is based on a passage in the version 3.1 manual, which states: “If you have never used DiscoveryZX before, we suggest you go through the main DiscoveryZX tutorial using the program’s demonstration transcripts. These instructions assume you are already comfortable with the Discover-yZX program.” Defs.’ Ex. 4.4 at 25. The Court does not believe this passage is sufficient for us to conclude that the version 3.1 manual describes all the limitations of Claim 7. The defendants make the alternative argument that the version 3.1 manual invalidates because it states that the transcript can be searched. Id. at 18. But the version 3.1 manual does not state that the user can conduct a natural language or Boolean search, so it does not describe all the limitations of Claim 7. Furthermore, Engate has raised a genuine issue as to whether the version 3.1 manual was actually published. The defendants argue that DiscoveryZX version 3.1 is invalidating prior art, because Sandstrom states that version 3.1 had all the capabilities of version 3.0, which we know from the manual allowed natural language searches. Sandstrom Decl. ¶ 8. But as we have already discussed, Sandstrom’s declaration is insufficient for purposes of summary judgment. The defendants’ argument regarding CaseView suffers from a similar infirmity. The defendants have provided the Court with a DVD containing a promotional video circulated by Stenograph, the makers of CaseView. In describing CaseView’s capabilities, the narrator states that an attorney can “search for a pertinent word or phrase or previously marked text” in a real-time transcript. Defs.’ Ex. 3.2. One could infer that a search for a pertinent word uses natural language. But for CaseView to anticipate Claim 7, it must have been in use or on sale prior to March 24, 1992. The last frame of the video says only that the video was copyrighted in 1992 but does not provide a more precise date. John Wenclawski, the president of Stenograph who provided the defendants with the video, states in a declaration that the video was in use prior to March 24, 1992. But we cannot rely on Wenclawski’s declaration to give the defendants summary judgment, because as the president of a company that markets a product that might be covered by Engate’s patents, he is an interested witness. For these reasons, the Court denies the defendants’ request for summary judgment on the invalidity of Claim 7 of the ’395 patent. 3. Claims k and 8 of U.S. Patent No. 5,88^,256 Claims 4 and 8 of the ’256 patent cover a computer interface that enables the user to annotate portions of the text with supplemental information related to the selected portion of the text as it is being delivered in realtime to the user’s computer from the CAT system. The application for Patent 5,884,256 was filed on April 9, 1998. The software available in Judge Strand’s CIC “permit[ted] the judge and the lawyers to insert notes of their own in the testimony as it unfolds and to program the computer to high-light any key words which they expect to figure in the trial.” Strand, supra, at 11. These notes could be interspersed through the testimony or indexed to the relevant portions of the text. Knox, supra, at 9. En-gate has failed to come forward with evidence creating a genuine issue of fact as to whether the software capabilities available in CICs anticipated their patent claims. Accordingly, the Court grants the defendants summary judgment as to the invalidity of Claims 4 and 8 of the ’256 patent. A Claim 10 of U.S. Patent No. 5,881,-256 Claim 10 of the ’256 patent claims “[t]he transcription network of claim 1 wherein the user interface of the attorney terminal enables a user to sequentially review the selected portions by skipping at least part of unselected portions of the delivered text.” Claim 10 of U.S. Patent No. 5,884,-256 (issued March 16, 1999). The defendants rely on two declarations for their assertion that software enabled users to skip over portions of unselected text prior to the critical date. Sandstrom’s declaration states that “[a]s a real-time transcript was received, the DiscoveryZX user interface allowed the user to search the transcript and select portions of the transcript. The selected portions might have supplemental information associated with them. The user could jump from one selected portion of the text to the next, skipping unselected portions.” Sandstrom Decl. ¶ 15. Sanchez similarly states that [p]rior to March 24, 1992, users could review selected portions of the real-time transcript by skipping at least part of unselected portions of the transcript. As a real-time transcript was received, the software in the workstations allowed the user to search the transcript and select portions of the transcript, and to either have or not have supplemental information associated with it. The user could jump from one selected portion of the text to the next, skipping unselected portions. Sanchez Decl. ¶ 11. The search function described by Sandstrom and Sanchez is on all fours with Claim 8 of Engate’s patent. But as we previously discussed, if we relied on Sandstrom’s declaration to corroborate Sanchez’s, we would have to make a determination of Sandstrom’s credibility, which we cannot do on summary judgment. But that does not end our inquiry. Sandstrom offered documentary evidence to substantiate his claims about the pre-critical date capabilities of the Discover-yZX software. Although we cannot rely on Sandstrom’s declaration even if it is corroborated, we can consider whether this documentary evidence alone meets the clear and convincing standard of proof to invalidate a patent. A “Quick Reference Card” for DiscoveryZX prepared by the Texas Court Reporters Association for a presentation about CICs on April 27, 1991 at the NCRA Midyear Seminar explains that the FI and F2 keys on the keyboard enable the user to “Go to Next Keyword” and “Go to Next Master Keyword.” Defs.’ Ex. 4.5. The Quick Reference Card was prepared for a session called “Realtime Spectacular, Part 3,” thus one can infer that the FI and F2 functions could be utilized on a realtime transcript. Id. En-gate argues that there is no evidence that the version of DiscoveryZX that had this capability had been installed in any CICs before the critical date. Although Engate is correct that no descriptions of the pre-critical date CICs specifically mentioned DiscoveryZX software with this feature, the reference card shows that the version of DiscoveryZX that had the function at issue was on sale prior to the critical date, which is a basis for invalidity under 35 U.S.C. § 102(b). The Court finds the Quick Reference Card provide clear and convincing evidence of invalidity that En-gate has failed to call into question. Accordingly, the Court grants the defendants’ motion for summary judgment as to Claim 10 of the ’256 patent. 5. Claim 15 of U.S. Patent No. 5,940,-800 Claim 15 of the ’800 patent describes a system that enables the user to create a list of issues and choose which issues she wants the system to identify in the transcript. The application for Patent 5,940,800 was filed on August 31, 1998. The technology available in CICs in the 1980s and early 1990s enabled users to create a list of issues that would be identified in the transcript as it was forwarded to the user’s computer from the CAT system. As we mentioned above, in the Chicago, Detroit and Phoenix CICs “attorneys c[ould] ‘issue-code’ their copies of the testimony as it happens, by assigning numbers to subjects of particular interest and marking the transcript electronically whenever the subject is mentioned.” Knox, supra, at 8-9. Engate has failed to create a genuine issue of fact about the issue-coding functionality available in the CICs. Accordingly, the Court holds that Claim 15 was anticipated by the CICs and is invalid under 35 U.S.C. § 102(b). 6. Claim 1 of U.S. Patent 5,869,704 Claim 1 of the ’704 patent covers the transmission of a real-time transcript from a CAT system to User l’s computer and User 2’s computer, which is networked to User l’s computer and, therefore, able to send messages associated to selected parts of the transcript to User l’s computer that can be displayed on that computer with the sections of the transcript associated to the message. The application for Patent 5,369,704 was filed on March 24, 1993. Articles discussing the technology in public use in CICs describe many of the elements comprising Claim 1. For example, the articles state that real-time transcripts could be sent to multiple computers linked to a CAT system in the CICs prior to the critical date. Knox, supra, at 4. The LAN network in the Phoenix CIC “electronically link[ed] a number of otherwise separate personal computer work stations together so they can communicate with each other and so they can share one central data base that is created and maintained on a specific item of computer hardware called a ‘file server.’” Strand, supra, at 10. Users on the network could definitely send messages to each other using electronic mail or ABA/Net. Madden, supra, at 14; Knox, supra, at 8. However, one element of Claim 1 is missing from the articles describing the CICs. No articles state — either explicitly or implicitly — that one user on the network could send a message associated to a selected portion of the transcript to a second user on the network and that the second user could see the portions of the transcript associated to the message. The defendants’ only evidence that portions of the real-time transcript could be linked to messages prior to the critical date is Sanchez’s declaration. Although the Court has absolutely no reason to doubt Sanchez’s veracity and credibility, as previously discussed, we cannot invalidate a patent based on uncorroborated testimonial evidence, even if the witness is not interested in the outcome of the case. Finnigan Corp., 180 F.3d at 1367. Accordingly, the Court must deny the defendants’ motion for summary judgment as to Claim 1 of Patent 5,269,704. 7. Claim 16 of U.S. Patent No. 5,369,-704 Claim 16 of the ’704 patent covers a network configuration in which the CAT system transmits real-time transcripts to several computers used by plaintiffs attorneys and several computers used by defense attorneys, but the communication link between the defense attorneys’ computers are isolated from the communication link between the plaintiff attorneys’ computer such that each side can send private messages to other members of her side. As we have previously explained, the CAT system utilized in the Phoenix CIC transmitted real-time transcripts to multiple computers within the courtroom that were linked together using a local area network. Strand, supra, at 10. The computers were “located on the judge’s bench, at each counsel’s table, and at the courtroom deputy clerk’s station, the court reporter’s position, the secretary’s desk, and each law clerk’s desk.” Id. To ensure that each party and the judge’s files remained confidential, each party and the court were provided with their own space on the database protected by security codes. Id. at 11. ABA/Net was available on the computers, which enabled users to email from their workstations. Id. at 47-48. The Court would have to take too large of an inferential step to conclude that these elements comprise the transcription and communication network described in Claim 16. Judge Strand explained that one computer terminal was provided for each party. Claim 16 envisions a set-up in which each party has at least two computer terminals that receive the real-time transcript from the CAT system. The defendants rely on an article and a declaration to argue that more than one computer could have been added to the network for each party. First, the defendants cite an article written by Judge Frank Andrews and published in September 1992 describing the technology available in a CIC in Dallas. The article explained that computers in the Dallas CIC are located at each counsel table, at the bench, and at the reporter’s workstation. Each computer is part of a local area network (LAN) that makes the court reporter’s trial transcript immediately available for review. (Though linked together through the LAN, each computer can function independently of the others. The LAN can be expanded to accommodate additional users as necessary.) Frank Andrews, Computer-Integrated Courtrooms: Enhancing Advocacy, Trial, September 1992, at 37-38. Engate correctly points out that the article was published after the critical date and gives no indication that the Dallas CIC was in use prior to the critical date. Therefore, we cannot say that the technology available in the Dallas CIC, as described by Judge Andrews, anticipated Claim 16 of Engate’s patent. The defendants’ only other support for their claim that multiple computers could be attached to the network for each party is the Sanchez declaration, which states: Prior to March 24, 1992, users could send messages to other users, which could include part of the real-time transcript. The Phoenix CIC utilized a No-vell local area network linking ten DOS 286 workstations. The work stations were located on the judge’s bench, at each counsel’s table, at the courtroom deputy clerk’s station, at my position, in the judge’s chambers, in my office, at the secretary’s desk, and at each law clerk’s desk. Those work stations also each had the capability to send and receive messages to and from any other work station. Those messages could include part of the transcript. The Judge and clerk could communicate via e-mail. This communication from the clerk to the judge was isolated from counsel. A single plaintiff attorney terminal was connected to the Novel[l] network. Because the CIC was configured with double cabling at each work station, a second terminal could have been provided to the plaintif