Full opinion text
MEMORANDUM AND OPINION ROSENTHAL, District Judge. This patent infringement suit involves roadside safety devices designed to absorb the forces generated when vehicles collide with guardrails and other objects along highways and roads to reduce injury and damage. Kothmann Enterprises, Inc. (“KEI”) alleges that two devices manufactured and sold by Trinity Industries, Inc. (“Trinity”)' — 'the Mobile Protection System (“MPS-350”) and the Attenuating Crash Cushion (“TRACC”) — infringe certain claims of United States Patent No. 6,022,-003 (the ’003 Patent) and United States Patent No. 6,505,820 (the ’820 Patent). Trinity has denied infringement and asserted that the patents are invalid and unenforceable. The parties have filed motions seeking summary judgment as to KEI’s ownership, Trinity’s alleged infringement, and the validity of the patents. The parties had also filed motions seeking summary disposition of Trinity’s affirmative defenses of inequitable conduct and laches. This court denied summary judgment but bifurcated the case, holding a bench trial on the equitable defenses in May 2005. Based on a careful review of the pleadings, the motions and responses, the parties’ submissions, the parties’ arguments, and the applicable law, this court enters the following rulings on the pending motions for summary judgment on ownership, infringement, and validity. The results of those rulings are set out below. • KEI owns both the ’003 Patent and the ’820 Patent. KEI’s motion for summary judgment as to ownership is granted. • The MPS-350 and TRACC do not infringe the asserted claims of the ’003 Patent. Trinity’s motion for summary judgment as to noninfringement is granted. • The MPS-350 and TRACC do not literally infringe the asserted claims of the ’820 Patent, and prosecution history estoppel bars KEI from asserting infringement under the doctrine of equivalents. KEI’s motion for summary judgment on infringement of the asserted claims of the ’820 Patent is denied; Trinity’s motion for summary judgment of noninfringement is granted. • The asserted claims of the ’003 Patent and the ’820 Patent are not invalid for lack of a written description or as anticipated by prior art. Trinity’s motion for summary judgment on invalidity is denied. A separate order will issue setting out findings and conclusions on the equitable defenses presented in the bench trial. The reasons for these rulings are set out in detail below. 1. Background The asserted claims of the ’003 Patent and the ’820 Patent describe roadside safety devices that absorb impact energy from a crashing vehicle while minimizing intrusion into the vehicle’s passenger compartment. The application for what issued as the ’003 Patent was filed on November 7, 1994; the patent issued on February 8, 2000. On August 8, 2001, Kothmann and Kothmann, Inc. (“KKI”), KEI’s predecessor, filed this suit, alleging that it owned the ’003 Patent and that Trinity’s MPS-350 and TRACC devices infringed claims 6, 8, and 12. (Docket Entry No. 1 ¶¶ 6, 9). The divisional application for what issued as the ’820 Patent was filed on October 1, 1999. That patent issued on January 14, 2003, subject to a terminal disclaimer. On that same date, KEI filed its first amended complaint in this lawsuit, asserting that Trinity’s MPS-350 and the TRACC infringed claims 6, 8, and 12 of the ’003 Patent and that the TRACC infringed claims 3, 4, 11, and 14 of the ’820 Patent. In April 2002, this court held a four-day evidentiary hearing on KKI’s motion for a preliminary injunction. The parties presented evidence on infringement, validity, and enforceability. In September 2002, shortly before this court issued its ruling, KEI filed U.S. Patent Application No. 10/236,755 (“the ’755 Application”) as a continuation of the ’003 and ’820 Patents. In September 2002, this court denied the motion for a preliminary injunction. In detailed findings and conclusions, this court explained that KKI had not met its burden of showing a reasonable likelihood of success on the merits of its claim that the TRACC and MPS 350 infringed the asserted claims of the ’003 Patent. (Docket Entry No. 62). In September 2003, after an evidentiary hearing, this court issued a Markman order construing the disputed terms of the ’003 Patent and the ’820 Patent. (Docket Entry No. 90). Within a few weeks, a continuation application and amendment in the ’755 Application were filed, adding language to address — and change — an aspect of the Markman ruling unfavorable to ZEI’s infringement allegations in this suit. In 2004, the patent examiner issued a notice of allowance of the pending claims in the ’755 Application. The ’755 Application was pending in May 2005 when this court held a bench trial on Trinity’s affirmative defenses of inequitable conduct, laches, and equitable estoppel. (Docket Entry Nos. 229 — 31). A. The Accused Devices: the MPS-350 and the TRACC Trinity’s Highway Safety Products Division manufactures and sells over 10,000 products, including the MPS-350 and the TRACC. The MPS-350 is a “truck-mounted attenuator,” an energy-absorbing device attached to the rear of a road work truck or utility vehicle. The device is designed to provide a controlled stop for a vehicle that impacts the work vehicle. The TRACC is a “crash cushion” that attaches to the end of a guardrail, bridge pier, or other longitudinal roadside barrier, to absorb the impact of a vehicle striking the end of the barrier. Both devices are patented: the MPS-350 by United States Patent No. 5,947,452 (the “MPS 350 Patent”) and the TRACC by United States Patent No. 6,293,727 (the “TRACC Patent”). Trinity manufactures and sells the MPS-350 and the TRACC through a license agreement with the patent owner. James Albritton is the inventor of both devices and testified as an expert witness for Trinity in this litigation. Albritton began developing the .MPS-350 in April 1995; Trinity has been selling it since September 1996. In 1997, Albritton gave a presentation on the design and operation of the MPS-350 at a meeting of the Transportation Research Board in Washington, D.C. Dr. Dean Sicking, one of the inventors of the ’003 and ’820 Patents, attended the meeting. (Docket Entry No. 42, Preliminary Injunc. Hearing Tr., vol. II, p. 15). Albritton began developing the TRACC in the summer of 1996 and completed the design in July 1998. Trinity began selling the TRACC in February 1999. The TRACC is designed to be attached to the end of a guardrail, bridge pier, or other longitudinal barrier to absorb the impact of a vehicle that hits the end of the barrier. The end of the TRACC that faces the road — the impact head — is covered with a plastic nose and reflectors. When a vehicle hits the impact head, it pushes a sled located on the base of the structure, through the center of a set of longitudinally-aligned side panels. The panels run parallel to one another with a hollow space or channel between them. The sections of the side panels are designed so that the end of each section fits inside the next consecutive section. When a vehicle hits the impact head, the sled moves and pushes the end of the first section, making the sections stack into each other or “telescope” until the vehicle stops or reaches the last section. As the sections telescope, cutting occurs along the base of the structure. Two square hollow beams run parallel to one another for the length of the system. These beams are located under, and in the direction of, the side panels. The inside wall of each beam has an one-inch gap, or channel, running longitudinally approximately half-way up the height of the beam. This wall is called the “backup plate,” or flange plate. Vertical metal plates called “rip plates” are bolted to the backup plates, over the one-inch channels. A “cutter plate” is mounted on the bottom of the sled and extends across the two beams. The cutter plate is a one-half inch thick metal plate with rounded edges. The cutter plate is rectangular, with two v-shaped angles cut into the leading edge. The plate is positioned so that as the sled pushes the cutter plate along the beams, the outer leg of the “v” on each side of the cutter plate contacts the rip plate at a forty-five degree angle. As the cutter plate passes between the beams and through the rip plates, the contacting edges of the cutter plate cut into the rip plates, pushing or stretching the metal around the edges of the backup plates and into the hollow beams. The MPS 350, the “truck-mounted attenuator,” is approximately fourteen feet long. It consists of a cutter plate, beams containing a channel, and rip plates. Like the TRACC, the MPS 350 uses two modes of energy absorption, the telescoping of the side panels and the cutting of the rip plates. Like the TRACC’s cutter plate, the MPS 350’s cutter plate is positioned so that the contacting edges of the plate strike the rip plates at a forty-five degree angle. The rip plates are bolted to the backup plates. Unlike the TRACC, in which the cutter plate is pushed along the beams, in the MPS 350, the beams are pushed into a mounted cutter plate. A bracket mounts the MPS 350 cutter plate under the rear of the truck. If a vehicle strikes the rear of the work truck, the bracket rotates from a forty-five degree angle to the roadway to a ninety degree angle to the roadway, positioning the cutter plate parallel to the roadway and aligned with the beams and rip plates. This pivoting action allows the system to be raised and lowered for transport. (Docket Entry No. 47, pp. 196 — 98). II. The ’003 Patent and the ’820 Patent The ’003 Patent and the ’820 Patent share inventors — Dr. Dean Sicking and Brian Pfeiffer — and specifications. The “Background of the Invention” section in both patents describes the claimed technology, as follows: This invention relates to guardrails intended to be positioned along a highway to reduce injury to the driver and passenger of vehicles that may accidentally tend to leave the highway. In one class of guardrail system, each guardrail system includes an elongated barrier and at least one energy-absorbing terminal. The elongated barrier extends parallel to the roadway along the side of the roadway and ends in a terminal. The terminal cooperates with one or more components of the barrier to absorb energy when a vehicle hits the terminal itself. The terminal is constructed to stop the vehicle without subjecting the occupant to excessive forces and to avoid impaling the passenger compartment of the vehicle or redirecting the vehicle in a dangerous direction or permitting the vehicle to continue in a dangerous direction at a dangerous speed when the vehicle hits the terminal itself. The barrier is designed to redirect the vehicle in a safer direction and impede its progress when the vehicle hits the barrier itself. The terminals and barrier of the energy-absorbing guardrail are designed so that: (1) when the vehicle hits the barrier itself, the barrier is anchored by a cable or similar component with tensile strength to support the vehicle from moving excessively in a direction perpendicular to the roadway; and (2) when the vehicle hits the terminal, the cable or other support member is released to avoid pulling the barrier out of its alignment with the terminal which would prevent movement of the terminal and barrier together to absorb energy. (Docket Entry No. 65, Ex. 1, ’003 Patent, col. 1, 11. 1 — 30; Docket Entry No. 65, Ex. 5, ’820 Patent, col. 1, 11. 10 — 39). The Summary of the Invention states in relevant part as follows: It is an object of the invention to provide a novel guardrail system. It is a further object of the invention to provide a novel energy-absorbing terminal for guardrail systems. It is a still further object of the invention to provide a method and apparatus for absorbing the energy of a vehicle that collides with a guardrail system. It is a still further object of the invention to provide a method and apparatus for restraining and redirecting vehicles that collide with guardrail systems. It is a still further object of the invention to provide a method and apparatus for making and using an energy-absorbing guardrail terminal that can be inexpensively adapted for different types of guardrails. It is a still further object of the invention to provide a method of making guardrails adapted for a particular highway and a guardrail which can be inexpensively adapted for the different highways. It is a still further object of the invention to provide a method an energy-absorbing guardrail terminal useful with beams of reinforced plastic in a guardrail. In accordance with the above and further objects of the invention, a guardrail system includes a guardrail and guardrail terminal arranged so that the terminal cooperates with the guardrail to absorb energy if a vehicle hits the terminal and releases the guardrail upon impact of the vehicle with the terminal but anchors the guardrail if the guardrail is impacted by the vehicle instead of the terminal. The terminal assembly includes an impact head and a cutting section. When the impact head is hit by a vehicle, it moves the cutting section in a manner to cut the beam of the guardrail and activates an anchor release to release the anchor from the guardrail itself. In the preferred embodiment, the guardrail is released from a cable by breaking the first post which has the cable bolted to it at one end. The other end of the cable is mounted to the guardrail. The post breaks at the cable connection, releasing the cable. The cutting section includes a tube having one or more cutting members within it and a deflection plate. The cutting member or members are designed to aid the deflection plate in the absorption of energy. (Id., ’003 Patent, col.2, 11. 1—46; ’820 Patent, col. 2, 11.12—55). The shared specification of the ’003 and ’820 Patents describes one embodiment of the invention directed to the end of a guardrail, and an alternative embodiment that is attached to a “concrete structure” “such as an overpass or the like.” Figures 3 and 4 in both the ’003 and the ’820 Patents show the guardrail embodiment from the side, with a vehicle positioned to hit the terminal end. The guardrail is mounted to a series of posts, preferably made of wood, parallel to the roadway. (Docket Entry No. 65, Ex. 1, ’003 Patent, col. 4, 11. 14 18, col. 5, 11. 24 — 37; Docket Entry No. 65, Ex. 5, ’820 Patent, col. 4, 11. 20 — 4, col. 5, 11. 32 — 4). The vehicle hits the impact head (30), pushing the cutting section (36) forward, Cutters are positioned inside the cutting section to cut along the guardrail (16) as the cutting section moves forward, absorbjng the energy of impact and slowing the vehjcie Figure 3 and 4 are set out below: Figure 14 is a vertical view of an embodiment attached to a concrete structure. B. The Asserted ’820 Patent Claims As noted, the ’820 Patent was filed as a divisional application of the ’003 Patent on October 1, 1999 and issued on January 14, 2003. Independent claim 3 of the ’820 Patent reads as follows: An energy-absorption system for positioning along a roadway to absorb the energy of an errant vehicle, the energy-absorption system comprising: an impact head; an angled cutter; and an elongated cuttable member horizontally mounted between two parallel guardrails; wherein the energy absorption system is positionable along a roadway to cooperate with the upstream portion of a roadside hazard; and wherein the impact head is in operational connection with the cutter and the cuttable member such that the impact of an errant vehicle with the impact head will cause the cutter to cut at least a portion of the cuttable member to absorb the impact energy of the errant vehicle. (Docket Entry No. 65, Ex. 5, ’820 Patent, col. 9, 11. 27 — 42). Dependent claim 4 states that “[t]he energy-absorption system of claim 3 wherein each of the two parallel guardrails is constructed of overlapping guardrail sections.” (Id. at col. 9, 11. 43 — 45). Dependent claim 11 states that “the energy-absorption system of claim 3 wherein the angled cutter comprises a cutter that is positioned such that at least one edge of the cutter approaches the cuttable member at an acute angle.” (Id. at col. 10, 11.1 — 4). Independent claim 14 requires: An energy-absorption system for positioning along a roadway to absorb the energy of an errant vehicle, the energy-absorption system comprising: an impact head; an angled cutter; two parallel guardrails, each of which is constructed of overlapping guardrail sections; and an elongated cuttable member mounted horizontally between the two parallel guardrails; wherein the energy absorption system is positionable along a roadway to cooperate with the upstream portion of a roadside hazard; and wherein the impact head is in operational connection with the cutter and the cuttable member such that the impact of an errant vehicle with the impact head will cause the cutter to cut at least a portion of the cuttable member to absorb the impact energy of the errant vehicle. (Id. at col. 10,11.11 — 28). Following the Markman hearing, this court construed the disputed terms of the ’820 Patent, as follows: An “angled cutter” is an angled structure that cuts, wherein “angled” means that at least one edge of the angled structure is oriented other than perpendicular to the material to be cut. The limitation “an elongated cuttable member horizontally mounted between two parallel guardrails” means that the “elongated cuttable member” must be horizontally mounted in the space that separates two parallel guardrails. (Docket Entry No. 90, pp. 51 — 58). C. The Prosecution History of the ’003 and ’820 Patents Brian Pfeifer and Dean Sicking are the named inventors on the application for the ’003 Patent. Sicking, a professor at the University of Nebraska (“UNL”), has been granted twenty-one patents for roadside safety devices. He owns a company, Roads Systems, Inc., that sells and manufacturers such devices. Shortly after the application for the ’003 Patent was filed, Sicking and Pfeifer assigned all rights in the invention to the UNL Board of Regents. (Docket Entry No. 135, Ex. 2). Before the ’003 Patent issued, UNL granted a license in the claimed invention to Interstate Steel Corporation (“ISC”), a company owned by Kaddo Kothmann. Kothmann was the sole officer, director, and shareholder of KEI’s predecessor, Kothmann & Kothmann, Inc. (“KKI”). Kothmann is also the president of ISC and is now the president and secretary of KEI. Sicking is a licensee of the ’003 Patent and testified as an expert for KEI in this litigation. The original application for the ’003 Patent, filed on November 7, 1994, disclosed two “means” of cutting a “guardrail” and consisted of sixteen claims, including claims for a guardrail system, a guardrail terminal, and a method of manufacturing a guardrail terminal. (Docket Entry No. 145, Ex. 1). The ’003 Patent application was prosecuted by Vick Carney, a patent attorney who worked for UNL. In January 1995, the patent examiner issued a restriction requirement. The applicants elected to pursue only the claims directed to a guardrail system. (Docket Entry No. 141, Ex. B). In May 1996, Sicking filed an express foreign counterpart application of the ’003 Patent, Publication No. WO 96/13972, with the World Intellectual Property Organization. The patent examiner rejected the claims in the ’003 Patent Application as anticipated by U.S. Patent No. 4,655,434 issued to Bronstad (the “Bronstad ’434 Patent”), and as obvious. The obviousness determination was based on the Bronstad reference; a patent issued to Sicking (U.S. Patent No. 5,078,366, the “Sicking ’366 Patent”); a patent issued to Gertz (U.S. Patent No. 5,022,782); and another patent issued to Gertz (U.S. Patent No. 5,403,113). The patent examiner found that the Sicking ’366 Patent disclosed all the limitations in the pending claims except a cutting means and that the Bronstad ’434 Patent made the cutting means obvious. The Bronstad ’434 Patent disclosed a guardrail system in which bolts progressively cut or shred metal tabs separating slots in the guardrail as the impact head is pushed by an impacting vehicle. The system consists of a set of horizontally overlapping guardrail sections with a series of closely-spaced slots. The guardrail segments are attached by bolts extending through the slots. “Preferably the openings are slots elongated in the horizontal direction and the rails are staged to allow the upstream rails to telescope over the downstream rails.” When a vehicle impacts the nose of the terminal, the bolts are forced to move from one slot to the next and “shred out the rail material between the spaced openings to absorb the kinetic energy of the impacting vehicle.” (Docket Entry No. 146, Ex. 5). In February 1997, the applicants filed an amendment in the ’003 Application to replace the claim term “guardrail” with the term “cutable member” and replace the term “guardrail system” with “energy-absorption system.” In response to the patent examiner’s anticipation rejection based on the Bronstad ’434 Patent, the applicants argued that the amended claim recites cutting means positioned to cut the cutable member. Bronstad discloses bolts in slots which are intended to split portions between a line of holes. Applicant does not believe, based on applicants (sic) testing, that these bolts will cut the guardrail but instead the guardrail fails by buckling.... Cutting means is not, using ordinary language of this art, readable on Bronstad’s bolts which are at best holding means which force compression and bending of the guardrail or fracturing of parts of it. The patent examiner rejected the amended terms as anticipated by the Bronstad ’434 Patent. The examiner concluded that Bronstad disclosed “an energy absorbing system ... including cutting means, splice bolts ... positioned to cut the cutable member as the cutable member and cutting section are moved with respect to each other by the impact head.” The applicants appealed to the PTO Board of Appeals, urging that the Bronstad ’434 Patent used bolts “to deform the metal,” while the dual-plate cutter or the wedge-shaped cutter disclosed in the ’003 Patent Application “cut” or “sheared” the metal. The PTO Board of Patent Appeals reversed the examiner’s rejection. The Board’s opinion stated in part as follows: We agree with the applicants that the claimed “cutting means” is not readable on the bolts.... In that regard, the claimed “cutting means” must be given its broadest reasonable interpretation consistent with the specification, and must be read in light of the specification as it would be interpreted by one of ordinary skill in the art....In this case, the specification discloses (1) the cutters are wedge shaped, and (2) the cutters slice the rail [ ] with a “shearing” action. In our view, an artisan would readily recognize the basic difference between cutting as disclosed in this application and the shredding disclosed by Bronstad.... [T]he claimed “cutting means” is not readable on the bolts [ ] of Bronstad since the bolts [] will shred out rail material, not “cut” the rail material. (Docket Entry No. 160, Ex. 9). The claims in the ’003 Patent as issued recite a “cutting means.” In May 1998, Trinity filed a patent infringement suit against KEI’s predecessors and Dr. Sicking, one of the inventors listed on the ’003 Patent. Trinity alleged that certain commercial embodiments of the ’003 Patent — the BEST, SKT, and FLEAT guardrail systems — infringed a patent then licensed by Trinity, U.S. Patent No. 4,928,928 (the “Sicking ’928 Patent”). That patent lists Sicking as an inventor. The ’003 Patent describes the Sicking ’928 Patent, the subject of the 1998 lawsuit filed by Trinity, and another Sicking patent as prior art energy-absorbing guardrails that use a terminal to extrude a metal portion of the barrier when impacted by a vehicle, “absorbing energy from metal working the rail.” (Docket Entry No. 65, Ex. 2, ’003 Patent, col. 1, 11. 32— 40). According to the ’003 Patent specification, in both of Sicking’s prior inventions, “it is difficult to adapt the basic design to absorb energy at different rates depending on the nature of the roadway along which it is positioned.” (Id., ’003 Patent, col. 1,11. 31 — 49). On July 20, 1999, the PTO issued a Notice of Allowability on the application for the ’003 Patent. On October 1, 1999, the application for the ’820 Patent was filed in the PTO as a divisional application of the ’003 Patent. The divisional application reasserted the claims originally filed in the ’003 Patent Application that were withdrawn in response to the patent examiner’s 1995 restriction requirement. All of the claims recited a “terminal.” The ’003 Patent issued to UNL on February 8, 2000. Meanwhile, the patent examiner had provisionally rejected certain claims in the ’820 Application on the basis of “double patenting” and anticipation in light of the Bronstad ’434 Patent. After the ’003 Patent issued, the applicants filed an amendment in the ’820 Application, changing the title from “guardrail” to “guardrail terminal.” On August 7, 2000, after the ’003 Patent had issued, the examiner for the ’820 Patent Application issued a final rejection for all but two claims, finding that the rejected claims were anticipated by the Bronstad ’434 Patent and obvious in view' of the Bronstad Patent and the Sicking ’366 Patent. These were the same prior art references the patent examiner cited during the ’003 Patent prosecution. On September 7, 2000, Carney, the patent attorney, filed a request for continued examination, an amendment, and a terminal disclaimer voluntarily relinquishing any part of the term of the ’820 Patent that would extend past the expiration of the ’003 Patent. (Docket Entry No. 141, Ex. 10). In September 2000, the UNL Board of Regents assigned the ’003 Patent and the ’820 Patent application to ISC. After the assignment to ISC, Henry Ehrlich, a lawyer with Winstead, Sechrest, & Minick P.C., took over as the lawyer prosecuting the ’820 Patent Application. Charles Rogers, a partner at Winstead, has represented Kothmann and his companies, KKI, KEI, and ISC, for an extended period. Rogers is lead counsel for KEI in this litigation. Pfeifer, the coinventor of the ’003 Patent, testified that he did not know about the ’820 Patent Application until he was subpoenaed to testify in this case. (Docket Entry No. 148, Ex. 24, p. 149). Ehrlich testified that he did not consult with either Pfeifer or Sicking during the prosecution of the ’820 Patent. (Id., Ex. 17, p. 10). Ehrlich filed several requests for continued examination and requests for expedited procedure after he took over the prosecution of the ’820 Patent Application in 2000. In April 2001, the patent examiner issued a second final rejection and on June 7, 2001, Ehrlich filed a request for expedited procedure and a continuation application. On August 8, 2001, KKI filed its original complaint and preliminary injunction application in this suit, asserting that Trinity’s MPS-350 and TRACC infringed the ’003 Patent. On August 29, 2001, Trinity filed its original answer and opposition to the motion for a preliminary injunction. (Docket Entry No. 5). That same day, Ehrlich filed a request for expedited procedure in the PTO. On October 16, 2001, Trinity filed a motion for summary judgment asserting that the ’003 Patent was invalid on the basis of three prior art patents: U.S. Patent No. 3,777,591 issued to Rands (the “Rands ’591 Patent”); U.S. Patent No. 3,782,505 issued to Armstrong (the “Armstrong ’505 Patent”); and U.S. Patent No. 3,428,150 issued to Muspratt (the “Muspratt ’150 Patent”). (Docket Entry No. 17). On December 11, 2001, Ehrlich filed a request for expedited procedure in the ’820 Patent Application with the Patent Office. That same day, Ehrlich filed an Information Disclosure Statement (“IDS”) with the PTO, disclosing eleven prior art references, including the Rands ’591 Patent, the Muspratt ’150 Patent, and the Armstrong ’505 Patent. Ehrlich did not disclose this ’003 Patent infringement litigation, despite the fact that the source of the prior art references was Trinity’s submissions in this litigation. Erlich also filed an amendment to change the means-plus-function limitation of a “means for cutting” to the structural limitation of a “cutter.” Other amendments deleted the “terminal” limitation from the claims and added fifteen new claims. (Docket Entry No. 141, Ex. 27). Again, there was no disclosure of this litigation, despite the fact that the amendments resulted from information Trinity provided and positions it took in this litigation. Specifically, Trinity asserted in this litigation that the “cutting means” limitation of the ’003 Patent claims was not present in either the MPS-350 or the TRACC and that the “terminal” limitation of the ’003 Patent meant that devices such as the MPS-350, which attach to the back of work trucks, did not infringe. This court held a four-day evidentiary hearing on the preliminary injunction application in April 2002. In that hearing, Trinity fully presented the basis for its positions as to why the “cutting means” and “terminal” limitations in the asserted ’003 Patent claims meant that the MPS-350 and the TRACC did not infringe. Before the hearing, Trinity had cited the Gertz ’484 Patent as potentially invalidating prior art and argued that the failure to disclose it during prosecution of the ’003 Patent violated the applicants’ duty of disclosure. The applicants did not disclose the lawsuit or the allegations, including the invalidity or inequitable conduct allegations, to the Patent Office. On July 17, 2002, Ehrlich filed a request for continued examination of the ’820 Patent Application, filed a terminal disclaimer, filed an IDS, submitted arguments to the examiner, and made several amendments. “Cutter” was changed to “angled cutter” and “cuttable member” was changed to “elongated cuttable member.” Several of the new independent claims that had been added on December 11, 2001 were deleted and some of the dependent claims were rewritten in independent form. The IDS disclosed the prior art Gertz ’484 Patent, but did not disclose the lawsuit or other information from the lawsuit. The examiner had rejected the claims of the ’820 Patent Application as anticipated, on the basis that the Bronstad ’434 Patent set forth an energy-absorption system comprising an impact head, a cutter, and a cuttable member. Ehrlich argued that the examiner’s rejection of the ’820 Patent Application was unjustified, emphasizing that the PTO Board of Patent Appeals had reversed the examiner’s similar rejection of the ’003 Patent’s “cutting means” element: Applicants again submit that Examiner has failed to provide a prima facie showing of anticipation by Bronstad. Applicants further submit that Bronstad does not anticipate Applicants’ claimed invention. Applicants respectfully direct Examiner to the decision of the [PTO Board of Patent Appeals] regarding Bronstad and the parent application and patent in this case, [the ’003 Patent]. Examiner is respectfully reminded that Bronstad does not disclose the “cutting means” claimed in the parent application and patent. Applicants therefore submit that Bronstad likewise does not disclose a “cutter” as suggested by Examiner. It is therefore respectfully requested that Examiner withdraw the outstanding rejection. On August 1, 2002, the patent examiner issued a Notice of Allowability on the ’820 Patent Application. On September 6, 2002, KEI filed the ’755 Application as a continuation of the ’003 Patent, listing Sicking and Pfeifer as inventors. The applicants did not disclose this lawsuit or any information about it. On September 20, 2002, this court issued a lengthy opinion denying the application for a preliminary injunction, finding that KEI had failed to show a substantial likelihood of succeeding on the merits of its claim that Trinity’s MPS-350 and TRACC products included the “cutting means” limitation in independent claim 6 of the ’003 Patent. (Docket Entry No. 62). On December 5, 2002, the patent examiner issued an office action in the ’755 Application, rejecting the claims on the basis of double patenting over the ’003 Patent. On January 14, 2003, the PTO issued the ’820 Patent to KEI. That same day, KEI filed its first amended complaint in this lawsuit, asserting that Trinity’s TRACC product infringed certain claims of the ’820 Patent. (Docket Entry No. 65). In February 2003, Trinity filed its amended answer and counterclaims, asserting affirmative defenses of prosecution laches and inequitable conduct based on the failure to disclose litigation information to the patent examiner during the ’820 Patent prosecution. In June 2003, the applicants provided written notice of the existence of this litigation to the PTO as part of the ’755 Application. In August 2003, this court held a Mark-man hearing and issued the Markman order in early September. In October 2003, the applicants filed a continuation application and amendment in the ’755 Application, adding new claims. The applicants stated that the amendment was intended in part to address one part of the Markman ruling, which interpreted the limitation of “ ‘an elongated cuttable member horizontally mounted between the two parallel guardrails’ to mean that the ‘elongated cuttable member’ must be horizontally mounted in the space that separates two parallel guardrails.’ ” The applicants submitted new claims tracking the language of claims 3 and 14 of the ’820 Patent, including their related dependent claims, to add the words “when viewed from above” in a parenthetical to modify the “between” language of these claims. In so doing, the applicants stated that they would be filing an IDS to include litigation materials, including the court’s Markman order, but the IDS apparently was not filed. In December 2003, the applicants submitted an IDS in the ’755 Application, but that IDS apparently was lost. In February 2004, the patent examiner issued a notice of allowance of the pending claims in the ’755 Application, noting that no IDS had been received. When the notice of allowance issued, the examiner had scant information about this lawsuit. The applicants filed a continuation application and an IDS in March 2004. In December 2004, the patent examiner again issued a notice of allowance for the ’755 Application claims. The pending motions address issues of ownership, infringement, and validity. The bench trial held on March 2005 addressed Trinity’s equitable defenses. The motions are addressed below. A separate order will set out findings and conclusions relating to the equitable defenses. III. The Summary Judgment Standard Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. Under Fed. R. Civ. P. 56(c), the moving party bears the initial burden of “informing the district court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Stahl v. Novartis Pharms. Corp., 283 F.3d 254, 263 (5th Cir.2002). If the burden of proof at trial lies with the non-moving party, the movant may either: (1) submit evidentiary documents that negate the existence of some material element of the opponent’s claim or defense; or (2) if the crucial issue is one on which the opponent will bear the ultimate burden of proof at trial, demonstrate that the evidence in the record insufficiently supports an essential element or claim. Celotex, 477 U.S. at 330, 106 S.Ct. 2548. The Federal Circuit has stated that district courts must approach motions for summary judgment on the issue of infringement “with great care.” Cole v. Kimberly-Clark Corp., 102 F.3d 524, 528 (Fed.Cir.1996); see Chem. Eng’g Corp. v. Essef Indus., Inc., 795 F.2d 1565, 1571 (Fed.Cir.1986) (“In approaching a motion for summary judgment of infringement or non-infringement, a district court must proceed ‘with a care proportionate to the likelihood of its being inappropriate.’ ”) (quoting D.M.I., Inc. v. Deere & Co., 755 F.2d 1570, 1573 (Fed.Cir.1985)). The party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, but need not negate the elements of the nonmovant’s case. Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir.2005). “An issue is material if its resolution could affect the outcome of the action.” Weeks Marine, Inc. v. Fireman’s Fund Ins. Co., 340 F.3d 233, 235 (5th Cir.2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). If the moving party fails to meet its initial burden, the motion for summary judgment must be denied, regardless of the nonmovant’s response. Baton Rouge Oil & Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir.2002). When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a motion for summary judgment by resting on the mere allegations of its pleadings. The nonmovant must identify specific evidence in the record and articulate the manner in which that evidence supports that party’s claim. Johnson v. Deep E. Texas Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 305 (5th Cir.2004). The nonmovant must do more than show that there is some metaphysical doubt as to the material facts. Armstrong v. Am. Home Shield Corp., 333 F.3d 566, 568 (5th Cir.2003). In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th Cir.2002). “Rule 56 ‘mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof.’ ” Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir.2004) (quoting Celotex, 477 U.S. at 322, 106 S.Ct. 2548). IV. Ownership The entities in the chain-of-title for the ’003 Patent and the ’820 Patent, with the exception of the UNL Board of Regents, are controlled by Kothmann, the principal of KEI, KKI, and ISC. On February 8, 2000, the ’003 Patent issued to the UNL Board of Regents. On September 20, 2000, UNL assigned all substantial rights in the ’003 Patent to ISC. On October 30, 2000, ISC transferred its rights to KKI. On August 8, 2001, KKI filed this suit. In April 2002, KKI merged with KEI, leaving KEI as the surviving corporation. On January 14, 2003, the ’820 Patent issued directly to KEI as the assignee. KEI argues that the undisputed summary judgment evidence establishes its ownership of the ’003 Patent as a matter of law. (Docket Entry No. 135). Trinity argues that the real party in interest is ISC, not KEI. A. The Applicable Legal Standards “A party may bring an action for patent infringement only if it is the ‘patentee,’ i.e., if it owns the patent, either by issuance or assignment.” Speedplay, Inc. v. Bebop, Inc., 211 F.3d 1245, 1249—50 (Fed.Cir.2000) (citing 35 U.S.C. §§ 100(d), 261, 281); Mentor H/S, Inc. v. Med. Device Alliance, Inc., 240 F.3d 1016, 1017 (Fed. Cir.2001). “A party that has been granted all substantial rights under a patent is considered the owner and is entitled to bring an infringement action, regardless of how the parties characterize the transaction that conveyed those rights.” Speedplay, at 1250; Fieldturf, Inc. v. Sw. Recreational Indus., Inc., 357 F.3d 1266, 1269 (Fed.Cir.2004). The party asserting that it “has all substantial rights” in a patent from an assignment or transfer “must produce ... written instruments documenting the transfer of proprietary rights.” Id. A court “must ascertain the intention of the parties and examine the substance of what was granted by the agreement”. Id.; Prima Tek II, L.L.C. v. A-Roo Co., 222 F.3d 1372, 1379—80 (Fed.Cir.2000). State law applies to the determination of ownership rights in a patent. Jim Arnold Corp. v. Hydrotech Sys., Inc., 109 F.3d 1567, 1572 (Fed.Cir.1997). B. KEI’s Evidence of Ownership KEI has submitted competent and undisputed evidence of its ownership of the ’003 and the ’820 Patents. ISC obtained from the UNL Board of Regents all substantial rights in the ’003 Patent through a written assignment dated September 20, 2000. ISC then transferred its rights to KKI through a written assignment executed on October 30, 2000 but effective as of September 13, 2000 — seven days before ISC had received title. (Docket Entry No. 135, Exs. 4, 6). The last paragraph of the document states: “EXECUTED, this 30 day of October, 2000, but effective the 13th day of September, 2000.” (Id., Ex. 6 ¶ 12). Trinity claims that because the assignment was effective before ISC held legal title, the assignment is void, and ISC is the real party in interest. Kothmann is the sole owner of ISC, and KEI and was previously the sole owner of KKI. Kothmann signed the challenged assignment document. He testified that he did not know why he made the October 30, 2000 document effective as of September 13, 2000. (Docket Entry No. 155, Ex. 9, 11.139:13 — 142:4). It is undisputed that ISC held valid legal title to the ’003 Patent on October 30, 2000, when Kothmann signed the document. It is clear that Kothmann intended to convey rights in the ’003 Patent from ISC to KKI. The document states: [For consideration, ISC] has agreed to and does hereby sell, assign, and transfer to [KKI], its successors and assigns, the entire, right, title, and interest [in the ’003 Patent] ... in and to [ ], and all reissues, renewals ... and any divisiónais, continuations, and continuations-in-part based thereon, and the inventions disclosed therein ... including [ISC’s] full right to sue for and recover for past, present, and future infringements. (Docket Entry No. 135, Ex. 6¶ 3). Kothmann is the sole owner and president of both ISC and KEI. There is no evidence to suggest that ISC or Kothmann has attempted to enforce the ’003 Patent against Trinity so as to subject it to separate litigation for the same alleged infringement. This court concludes that the summary judgment evidence does not create a fact issue as to KEI’s ownership of the ’003 Patent. KEI’s motion for summary judgment as to its ownership of the ’003 Patent is granted. V. Infringement Trinity argues that there is no genuine issue of disputed fact material to determining whether the MPS-350 and the TRACC infringe the ’003 Patent, either literally or under the doctrine of equivalents. Trinity argues that no reasonable jury could find that the MPS-350 satisfies the “terminal” limitation of claims 6, 8, and 12 of the ’003 Patent, and that no reasonable jury could find that the TRACC and the MPS-350 satisfy the “cutting means” limitation required by those claims. Trinity has moved for summary judgment that the MPS-350 and TRACC do not infringe the ’003 Patent. (Docket Entry No. 142). Both parties have moved for summary judgment on infringement of the ’820 Patent. The primary dispute arises from the limitation in independent claim 3 that calls for the “cuttable member” to be “horizontally mounted between two parallel guardrails.” (Docket Entry No. 65, Ex. 5, ’820 Patent, col. 9, 11. 31 — 32). Trinity moves for summary judgment, claiming that the TRACC does not literally infringe the ’820 Patent as a matter of law because the rip plates in the TRACC are between the guardrails when viewed from above, but below the guardrails when viewed from the side. Trinity argues that the doctrine of equivalents does not apply because KEI presumptively surrendered any equivalents to the “between” limitation during the prosecution history of the ’820 Patent. KEI cross-moves for summary judgment that the TRACC infringes the ’820 Patent. (Docket Entry Nos. 140,142). A. The Applicable Legal Standards Patent infringement claims involve two analytic steps. Mars, Inc. v. H.J. Heinz Co., L.P., 377 F.3d 1369, 1373 (Fed.Cir.2004); Scanner Tech. Corp. v. ICOS Vision Sys. Corp., N.V., 365 F.3d 1299, 1302 (Fed.Cir.2004). First, the court determines the meaning and scope of the asserted claims. Scanner Tech., 365 F.3d at 1302; Novartis Pharm. Corp. v. Eon Labs Mfg., Inc., 363 F.3d 1306, 1308 (Fed.Cir.2004). Claim construction is a matter of law. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). A court primarily relies on intrinsic evidence — the claims, the written specification, and the prosecution history — to learn the meaning of the terms. Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed.Cir.2005) (en banc). In most cases, the best source for determining the meaning of claim terms is the specification in which the patentee describes the invention. A court may secondarily rely on extrinsic evidence, including expert testimony, dictionaries, and technical treatises, to understand the meaning and scope of particular terms. Id. Second, the claims as construed are compared to the allegedly infringing device to determine whether the claims encompass the accused structure. Whether the accused device contains each element, as properly construed, is a question of fact. Bai, 160 F.3d at 1353. Literal infringement of a claim requires that every limitation recited in the claim appears in the accused device, “i.e., that the properly construed claim reads on the accused device exactly.” Cortland Line Co., Inc. v. Orvis Co., Inc., 203 F.3d 1351, 1358 (Fed.Cir.2000). If even one limitation is missing or not met as claimed, there is no literal infringement. Moba, B.V. v. Diamond Automation, Inc., 325 F.3d 1306, 1313 (Fed.Cir.2003); Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 812 (Fed.Cir.2002). Summary judgment on the issue of literal infringement is proper “when no genuine issue of material fact exists, in particular, when no reasonable jury could find that every limitation recited in the properly construed claim either is or is not found in the accused device.” Goldenberg v. Cytogen, Inc., 373 F.3d 1158, 1164 (Fed.Cir.2004) (quoting Bai, 160 F.3d at 1353). If there is no literal infringement, there still may be infringement under the doctrine of equivalents. “The doctrine of equivalents allows the patentee to claim those insubstantial alterations that were not captured in drafting the original patent claim but which could be created through trivial changes.” Festo, 535 U.S. at 733, 122 S.Ct. 1831. Infringement under the doctrine of equivalents requires that the accused product contain each limitation of the claim or its equivalent. “An element in the accused product is equivalent to a claim limitation if the differences between the two are ‘insubstantial’ to one of ordinary skill in the art.” Eagle Comtronics, Inc. v. Arrow Comm. Labs., Inc., 305 F.3d 1303, 1315 (Fed.Cir.2002). The test for equivalence is whether the accused structure performs substantially the same function in substantially the same way to achieve substantially the same result as the claimed invention. Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 40, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). Summary judgment of noninfringement under the doctrine of equivalents is appropriate if “no reasonable jury could determine two elements to be equivalent.” Leggett & Platt, Inc. v. Hickory Springs Mfg. Co., 285 F.3d 1353, 1360 (Fed.Cir.2002) (quoting Warner-Jenkinson, 520 U.S. at 39 n. 8, 117 S.Ct. 1040.). Equivalence must be determined against tjie context of the patent, the prior art, the prosecution history, and the nature of the technology claimed. A court may determine, as a matter of law, that the “all limitations” rule, the prior art, or prosecution history estoppel bar a patentee from asserting the doctrine of equivalents. See SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337 (Fed.Cir.2001); Festo, 535 U.S. at 736, 122 S.Ct. 1831; Glaxo Wellcome, Inc. v. Impax Labs., Inc., 356 F.3d 1348, 1351 (Fed.Cir.2004). The “all limitations rule” provides that the doctrine of equivalents does not apply if the doctrine would vitiate an entire claim limitation. Lockheed Martin Corp. v. Space Sys./Loral, Inc., 324 F.3d 1308, 1321 (Fed.Cir.2003). The doctrine of equivalents may not be applied “if the asserted scope of equivalency of what is literally claimed would encompass the prior art.” Wilson Sporting Goods Co. v. David Geoffrey and Assocs., 904 F.2d 677, 683 (Fed.Cir.1990) (“A patentee should not be able to obtain, under the doctrine of equivalents, coverage which he could not lawfully have obtained from the PTO by literal claims.”). Prosecution history estoppel may bar the patentee from asserting infringement under the doctrine of equivalents if the scope of the claims have been narrowed by amendment or argument during the patent prosecution. Omega Eng’g Inc. v. Raytek Corp., 334 F.3d 1314 (Fed.Cir.2003). If one of ordinary skill in the art would consider the accused product to be surrendered subject matter, the doctrine of equivalents cannot be used to claim infringement by that product. Schwing GmbH v. Putzmeister Aktiengesellschaft, 305 F.3d 1318, 1324—25 (Fed.Cir.2002). B. The Effect of the Phillips Decision on This Court’s Claim Construction In its September 2003 Markman order, the disputed claims that were construed included two claims that have emerged as the most important to the infringement arguments. With respect to the ’003 Patent, the disputed term in claim 6 calls for “a terminal including an impact head.” The .infringement issue is whether a “terminal” includes structures that are attached to the back of work trucks. This court construed “terminal” as: a device (1) attached to the end of an elongated barrier that is anchored to the roadside, or (2) attached to the end of a fixed roadside hazard, that prevents an errant vehicle’s movement perpendicular to the roadway and, in cooperation with other components and the barrier or hazard, absorbs energy when a vehicle hits the terminal itself. (Docket Entry No. 90, p. 56). With respect to the ’820 Patent, the disputed term is the word “between” in the limitation in claims 3 and 14 requiring “an elongated cuttable member horizontally mounted between two parallel guardrails.” This court construed this limitation as follows: The limitation “an elongated cuttable member horizontally mounted between two parallel guardrails” means that the “elongated cuttable member” must be horizontally mounted in the space that separates two parallel guardrails. (Docket Entry No. 90, p. 58). Long after this court issued the Mark-man order in September 2003, the Federal Circuit issued Phillips v. AWH Corp., clarifying the standard for construing claims and the proper role of dictionaries, prosecution history, and expert testimony. The court recognized that “there is no magic formula or catechism for conducting claim construction” and stressed the discussion of the invention in the specification as “the single best guide to the meaning of a disputed term.” Phillips, 415 F.3d at 1314—15 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996)). “It is therefore entirely appropriate” for a court “to rely heavily on the written description [in the specification] for guidance as to the meaning of the claims.” Id. at 1316. The words used in a claim are generally given their ordinary and customary meaning. Id. at 1313. The ordinary and customary meaning of a claim term “is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e. as of the effective filing date of the patent application.” Id. Phillips made it clear that “the person of ordinary skill in the art is deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent, including the specification.” Id. Although the claims themselves provide guidance as to the meaning of particular terms, those terms are part of “a fully integrated written instrument.” Id. at 1314. The Phillips court emphasized the specification as the primary basis for construing the claims. In addressing the role of the specification, the Phillips court quoted with approval its earlier observations from Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1250 (Fed.Cir.1998): Ultimately, the interpretation to be given a term can only be determined and confirmed with a full understanding of what the inventors actually invented and intended to envelop with the claim. The construction that stays true to the claim language and most naturally aligns with the patent’s description of the invention will be, in the end, the correct construction. 415 F.3d at 1316. In addition to the relevance prosecution history has to the specification inquiry, it continues to play an important role in claim interpretation. The prosecution history helps to demonstrate how the inventor and the PTO understood the patent. Phillips, 415 F.3d at 1317. But because the file history “represents an ongoing negotiation between the PTO and the applicant,” it may lack the clarity of the specification and be less useful for claim construction. Id. The prosecution history is nonetheless intrinsic evidence relevant to the determination of how the inventor understood the invention and whether the inventor limited the invention during prosecution by narrowing the scope of the claims. Phillips rejected a claim construction approach that sacrificed the intrinsic record in favor of extrinsic evidence, such as dictionary definitions or expert testimony. The en banc court criticized the methodology adopted in Texas Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193 (Fed.Cir.2002)—a case to which district courts often turned for guidance in claim construction' — for the large role it assigned to extrinsic sources such as dictionaries and the limited role it assigned to the specification. According to Phillips, reliance on dictionary definitions at the expense of the specification had the effect of “focusfing] the inquiry on the abstract meaning of words rather than on the meaning of the claim terms within the context of the patent.” 415 F.3d at 1321. Phillips emphasized that the patent system is based on the proposition that the claims cover only the invented subject matter. What is described in the claims flows from the statutory requirement imposed on the patentee to describe and particularly claim what has been invented. Id. The definitions found in dictionaries, by contrast, often flow from the editors’ objective of assembling all of the possible definitions for a word. Id. Noting that “heavy reliance on the dictionary divorced from the intrinsic evidence risks transforming the meaning of the claim term to the artisan into the meaning of the term in the abstract,” the Federal Circuit directed federal courts instead to focus at the outset on how the patentee used the claim term in the claims, specification, and prosecution history. Id. Phillips does not preclude all uses of dictionaries in claim construction proceedings. Instead, the court assigned dictionaries a role subordinate to the intrinsic record. Judges remain free to consult dictionaries, technical treatises, or comparable sources to assist in understanding the commonly understood meaning of words and to gain a better understanding of the underlying technology. Id. at 1322. Dictionaries and technical treatises may continue to inform claim construction, so long as courts do not adopt a definition that contradicts the intrinsic evidence. Id. at 1323. The court did not impose any particular sequence of steps for a court to follow when it considers disputed claim language. Id. Rather, Phillips held that a court must attach the appropriate weight to the intrinsic sources offered in support of a proposed claim construction, bearing in mind the general rule that the claims measure the scope of the patent grant. See Microunity Sys. Eng’g, Inc. v. Dell, Inc., No. 04-120, 2005 WL 2086026 at *2 (E.D.Tex. Aug.29, 2005); IP Innovation L.L.C. v. Sony Elecs., Inc., No. 04-6388, 2005 WL 2035578 at *1 (N.D.Ill., Aug.18, 2005). In light of the clarification provided in Phillips, this court has reexamined the claim construction of “terminal” and “between.” C. The MPS-350 and the “Terminal” Claimed in the ’003 Patent KEI alleges that the MPS-350 infringes claims 6, 8, and 12 of the ’003 Patent, both literally and under the doctrine of equivalents. Each of these claims calls for a “terminal.” The parties agree that the TRACC contains a “terminal,” but dispute whether the MPS-350 is a “terminal” or an equivalent structure. As a threshold matter, this court examines the construction of “terminal” in light of Phillips. 1. “Terminal” In the Markman proceeding, KEI took the position that “terminal” was appropriately construed as a structure “attached to the end of an elongated barrier that is anchored” to prevent an impacting vehicle’s perpendicular movement, but asserted that the construction should be broad enough to include a device attached to the end of a truck or work vehicle parked in the roadway. KEI’s proposed claim construction defined “terminal” as a device that attaches to the “end of an elongated barrier or other similar roadside hazard.” Trinity’s proposed claim construction defined “terminal” as “a device attached to the end of an elongated barrier.... A device attached to a truck or work vehicle is not a terminal.” (Docket Entry No. 90, p. 19). This court rejected Trinity’s and partially adopted KEI’s proposed construction. This court construed “terminal” as “a device attached to the end of an elongated barrier that is anchored to the roadside, or attached to the end of a fixed roadside hazard, that prevents an errant vehicle’s movement perpendicular to the roadway and ... absorbs energy when a vehicle hits the terminal itself.” (Id.). A review of the record reveals that this court’s construction of “terminal” is consistent with the interpretive principles explained in Phillips. The specification of the ’003 Patent consistently describes a “terminal” as attached to structures that are anchored or fixed along the roadway. In one embodiment, the roadside obstacle is a guardrail, a longitudinal barrier, connected to the ground by posts. (Docket Entry No. 65, Ex. 1, ’003 Patent, col. 4, 11. 6 — 7, Figs. 1 — 4). In another embodiment, the roadside hazard is a “hard structure such as an overpass or the like.” (Id. at col. 8,11. 5 — 7, Fig. 14). In the Markman analysis, this court drew on definitions in the Transportation Research Board National Research Council National Cooperative Highway Research Program Report 350 (“NCHRP Report 350”). This court looked to the Report 350 as evidence of the ordinary meaning of “terminal” in the field of highway safety design. The definition of “terminal” that this court found supported by the Report 350 is consistent with the use of the term in the patent claims and specification. Use of the Report 350 in the claim construction analysis is consistent with Phillips. The NCHRP Report 350 was published by the Transportation Research Board in 1993 to provide “recommended procedures for evaluating the safety performance of various highway safety features.” (Docket Entry No. 146, Ex. 15, T00517). The Federal Highway Administration requires roadway safety devices used on the national highway system to meet performance standards set out in the NCHRP Report 350. Id. (“This report is recommended to highway design engineers, bridge engineers, safety engineers, researchers, hardware developers, and others concerned w