Full opinion text
OPINION FARNAN, Chief Judge. TABLE OF CONTENTS INTRODUCTION. 388 BACKGROUND. 389 I.Procedural Background of Dentsply v. Kerr, Civil Action No. 89-167 . 389 II.Procedural Background of Centrix v. Dentsply, Civil Action No. 89-507 ... 389 III.Factual Background For The Instant Contempt Proceedings . 390 ISSUES PRESENTED TO THE COURT . 392 DISCUSSION. 393 I. Whether Centrix Is Bound By the Injunction Directed At Kerr. 393 A. Federal Rule of Civil Procedure 65(d) and the Law of Privity. 393 B. The Parties’ Contentions . 394 C. Findings of Fact and Conclusions of Law. 394 1. Contractual Evidence. 394 2. Centrix’s Rule in the Dentsply Litigation. 396 3. Centrix’s Knowledge of the Injunction . 399 II.Whether Contempt Proceedings Are Appropriate. 400 A. Legal Standard. 400 B. The Parties’Contentions . 400 C. Findings of Fact and Conclusions of Law. 401 1. Comparison of NuGun device to Kerr device. 401 2. Comparison of the Vivadent device to the Kerr device. 402 3. Conclusion . 403 III. Whether Centrix Violated the Injunction. 403 A. The Law of Infringement. 403 B. Claim Construction. 405 1. Whether an Undercut Groove must have a Rearward Wall. 405 2. Whether the Compartment must be Cylindrical in Shape. 405 3. Whether the Lever Means must be Connected to the Barrel. 406 C. Infringement Analysis. 406 1. Whether the Combination of the NuGun ejector holder and Either the Accudose or Aelitefil Cartridges meets every element of Claim 1 of the’280 Patent. 406 2. Whether the NuGun ejector holder meets every element of Claim 1 of the ’853 Patent. 410 3. Whether the combination of the Centrix-Manufactured Vivadent ejector holder and the Vivadent Cartridges meets every element of Claim 1 of the ’280 Patent. 413 4. Whether the Centrix-Manufactured Vivadent ejector holder meets every element of Claim 1 of the ’853 Patent. 415 IV. Whether Dentsply Is Issue Precluded From Asserting Infringement of the ’280 and ’853 Patents Against Centrix. 417 CONCLUSION. 418 INTRODUCTION Presently before the Court is the issue of whether Centrix, Inc. (“Centrix”) should be held in contempt for violating an injunction issued by the Court on January 27, 1993, in connection with a lawsuit brought by Dentsply International Inc. and Dents-ply Research and Development Corporation (jointty “Dentsply”) against Kerr Manufacturing Corporation (“Kerr”) for the infringement of two patents related to devices used by dentists for delivering dental composite filling material to patients’ teeth. Seeking to hold Centrix in contempt for its manufacture and sale of the NuGun and Vivadent devices, Dentsply filed a Motion For Order To Show Cause Why Centrix, Inc. Should Not Be Held In Contempt Of This Court’s Injunction (D.I. 303) alleging, among other things, that Centrix should be bound by the injunction because it was in privity with Kerr at key times during the aforementioned lawsuit. Finding sufficient support for Dentsply’s assertion of privity, the Court granted the Motion and held an evidentiary hearing. For the reasons set forth below, the Court concludes that Centrix should be held in contempt for violating this Court’s injunction dated January 27,1993. BACKGROUND In determining whether Centrix should be held in contempt for violating this Court’s January 27, 1993 injunction, the Court finds that a brief description of the instant case and a related pending case provides useful context and background for the issues raised by this contempt proceeding. Following a description of the procedural posture of these actions, the Court will present the factual background for this contempt proceeding. I. Procedural Background of Dentsply v. Kerr, Civil Action No. 89-167 In April 1989, Dentsply initiated a lawsuit against Kerr Manufacturing Corporation (“Kerr”) for patent infringement (the “Dentsply litigation”) (Civil Action No. 89-167). The patents in issue related to capsule-like cartridges containing dental composite filling material and ejector holders used by dentists to express the composite materials from the cartridge to patients’ teeth. Among other things, Dentsply alleged that Kerr’s sale of UNIDOSE cartridges and ejector holders infringed three Dentsply Patents: U.S. Patents Nos. 4,330,280 (the “’280 Patent”), 4,384,853 (the “ ’853 Patent”), and 4,391,590 (the “ ’590 Patent”). A jury trial was held in June 1990 and a verdict was returned in favor of Dentsply. Specifically, the jury concluded that Dents-ply’s three patents were valid, enforceable, and infringed by the Kerr UNIDOSE cartridges and ejector holders. On October 10, 1991, the Court entered Final Judgment in accordance with the jury’s verdict. After a number of unsuccessful post-trial motions filed by Kerr, the Court granted Dentsply’s motion for injunctive relief. On January 27, 1993, the Court entered a Final Order and Judgment, which incorporated the Court’s Final Judgment Order of October 10, 1991, and permanently enjoined “Kerr, its officers, agents, employees and licensees ... from continuing to manufacture or have manufactured for, use or sell the Kerr Unidosel tip (first version) and/or syringes which have been found to infringe Claims 1 and 2 of the ’590 patent, Claims 1, 3, 4, 6, 7, 9, 10, 11 and 12 of the ’280 patent, and Claims 1, 2, and 4 of the ’853 patent.” (D.I.265). More than two years following the issuance of the injunction, Dentsply filed its show cause motion, spawning the instant contempt proceedings. 11. Procedural Background of Centrix v. Dentsply, Civil Action No. 89-507 Though not named as a party in the Dentsply litigation, discovery in the Dents-ply litigation revealed that Centrix, the entity named in the instant contempt motion, manufactured the accused UNIDOSE cartridges and ejector holders for Kerr. Approximately'five months after Dentsply initiated suit against Kerr, Centrix filed a separate action against Dentsply (the “Centrix litigation”). (Civil Action No. 89-507-JJF). In this action, Centrix asserts claims of unfair competition, patent misuse, tortious interference with contract, and infringement of a Centrix patent and restates as affirmative causes of action, the counterclaims that had been raised by Kerr in the Dentsply litigation, namely that Dentsply’s patents were not valid, not enforceable and not infringed by the Cen-trix-manufactured UNIDOSE cartridges and ejector holders. Dentsply counterclaimed for infringement of the ’280, ’853 and ’590 patents. The Centrix and Dents-ply actions were consolidated for the purposes of discovery only. Following the jury verdict in the Dents-ply litigation, Dentsply filed a motion in the Centrix litigation seeking a preliminary injunction against Centrix under the ’280, ’853 and ’590 patents. On July 15, 1992, the Court denied the motion based on the finding that Dentsply had not met its burden of showing irreparable harm. On August 31, 1992, the Court ordered the Centrix action administratively closed until such time as either party requested further relief. Following a request from Centrix, the stay was lifted on December 6,1996. Since the lifting of the stay, the parties have filed numerous motions in that action, some of which turn on the outcome of the instant contempt proceedings. III. Factual Background For The Instant Contempt Proceedings On December 14, 1988, prior to the Dentsply and Centrix litigations, Centrix and Kerr entered into a contractual relationship under which Centrix agreed to manufacture and sell to Kerr particular capsules filled with material to be supplied by Kerr (the “1988 Supply Agreement”). This agreement contained the following indemnification provision: CENTRIX shall defend KERR, at Cen-trix’ [sic] expense, against any claim, action or other proceedings (“all hereinafter the Action”) brought against Kerr for patent infringement with regard to the use or sale of the Products, even if the allegations in the Action are groundless, false or fraudulent. In addition, CENTRIX shall indemnify KERR for any and all liability, damages, judgments incurred by KERR as a result of any such patent infringement Action. (PX-92 at ¶ 9). Over a year later, in April 1989, Kerr was sued by Dentsply for patent infringement. According to the testimony of Stephen Tomassi, General Counsel of Cybron International, the parent company of Kerr, Centrix initially declined to honor the indemnification and defense provision in the 1988 Supply Agreement. To prevent a default judgment from being taken, Kerr retained counsel and began to defend the lawsuit. Meanwhile, negotiations between Centrix and Kerr continued. (Tr. of 12/20/96 Hearing (“Tr.”) at 6:14r-8:24). Approximately one year later, in March 1990, the negotiations between Kerr and Centrix culminated in the Indemnification and Defense Agreement (the “1990 Indemnification Agreement”). (Tr. 8:25-9:7). Unlike the general indemnification and defense clause in the 1988 Supply Agreement, the 1990 Indemnification Agreement specifically referred to the Dentsply litigation. In pertinent part, the 1990 Indemnification Agreement provided: Centrix shall, at its expense, defend Kerr against all the allegations made by Dentsply in that action filed in the United States District Court for the District of Delaware, entitled Dentsply International and Dentsply Research and Development Corporation v. Kerr manufacturing Company, Case Number 89-167, (hereinafter the “Action”). It is understood that the allegations made by Dentsply against Kerr in the action include but are not limited to the following: trademark infringement with respect to the UNIDOSE Capsule; trademark infringement with respect to the use by Kerr of the word “Compules”; unfair competition by Kerr’s use of Dentsply’s color dress capsule shape, trademark and the word “Compules”; patent infringement with respect to the 590 patent and patent infringement with respect to the 853 patent. (PX-113 at ¶ 1). In addition, under the terms of this agreement, the 1988 Supply Agreement was to be terminated on March 31, 1990, and a new supply agreement was to be executed to take effect as of April 1, 1990. (PX-113 at ¶ 5). According to Mr. Tomassi, subsequent to the execution of this agreement, Centrix retained the firm of Lerner, David, Litten-berg, Krumholz & Mentlik (“Lerner David”) to succeed the firms Kerr had retained to represent Kerr during the trial. (Tr. 11: — 12:10). It is at this point, that Dentsply maintains, and Tomassi supports, that Centrix took control of Kerr’s defense in the Dentsply litigation. According to Tomassi, Kerr was not consulted with regard to the retention of the Lerner David firm, and Centrix paid all of the Lerner David firm’s fees until November 1992. In addition, Tomassi stated that Centrix made all the decisions regarding which defenses would be presented, and that neither Centrix, nor the Lerner David firm, ever asked him for his input. According to Tomassi, he was never given regular reports concerning the progress of the trial, and only kept apprised of the litigation through his own efforts to ask questions or observe portions of the trial. (Tr. 11:24-14:5). Although Centrix denies that it controlled the substance of the lawsuit, through the testimony of Dr. William Dra-gan, Centrix admits that it paid for all of Kerr’s attorney fees between March 1990 and June 1992. (Tr. 79:5-7). With regard to Centrix’s role in the litigation, Dr. Dra-gan testified that Centrix suggested possible strategies to Kerr and its attorneys, but Kerr refused to take Centrix’s advice. (Tr. 65:7-15, 75:7-9). Dr. Dragan also stated that Centrix did not have any contact with the Lerner David law firm because they were “Kerr’s attorneys.” (Tr. 75:9). Dr. Dragan did, however, admit that he attended the trial daily. (Tr. 66:10). Aside from the discrepancy regarding whether Kerr or Centrix substantively controlled the lawsuit, the parties agree that during the course of the June 1990 trial in the Dentsply litigation, Centrix and Kerr executed another agreement entitled Clarification to Indemnification and Defense Agreement (the “Clarification Agreement”). According to the testimony of Mr. Tomassi, this agreement was spawned by his concern that Centrix might not indemnify Kerr against any judgment obtained by Dentsply in that ease, because Kerr had not yet entered into the supply agreement contemplated by the March 1990 Indemnification Agreement. (Tr. 14:9-22). This agreement reaffirmed both Kerr’s obligation to enter into a supply agreement and Centrix’s obligation to indemnify and defend Kerr as set forth in the March 1990 Indemnification Agreement. However, in affirming Centrix’s indemnification and defense responsibilities, the Clarification Agreement recognized that the “new supply agreement may or may not be executed prior to the conclusion of the trial in the Dentsply action.” (PX-628 at ¶ 2). On June 27, 1990, the jury returned a verdict in favor of Dentsply and post-trial motions followed. Although Kerr still had not entered into the supply agreement contemplated by the March 1990 Indemnification Agreement and the Clarification Agreement, Centrix admits that it continued to pay Kerr’s attorneys’ fees through this period of post-trial filings. (Tr. 79:5-7). However, on February 14, 1991, Melvin Drumm, President of Centrix, sent a letter to Brian Brenner, President of Kerr, informing him that unless Kerr executed the supply agreement by March 15, 1991, Centrix would consider Kerr to be in breach of the 1990 Indemnification Agreement and would seek reimbursement for all fees and expenses Centrix paid for Kerr’s defense. (C-51A). Shortly thereafter, Kerr entered into a supply agreement with Centrix. Though signed in March 1991, this agreement was made retroactively effective as of April 1, 1990. (the “1991 Supply Agreement”) (C-52). Like many of the other agreements, the 1991 Supply Agreement also contained an indemnification provision. (C-52 at ¶ 10). The first paragraph of this provision, set forth Centrix’s obligations to defend and indemnify Kerr for the sale of the capsules specified in the 1991 Supply Agreement. (C-52 at ¶ 10a). The second paragraph, however, explicitly referred to the Dentsply litigation and stated: The above paragraph shall not in any way limit Centrix’s obligation to indemnify KERR with regard to any expenses, costs or damages incurred by KERR in the Dentsply International, Inc., et al. v. Kerr Manufacturing Company, et al. litigation, C.A. NO. 89-167-JJF, filed in the United States District of Delaware. The indemnification obligations of CEN-TRIX for the Dentsply litigation shall be determined by the Indemnification and Defense Agreement entered into by CENTRIX and KERR on March 6, 1990. (C-52 at ¶ 10b). Though the record is not explicit, business relations apparently continued between Kerr and Centrix until June 1992. According to Dr. Dragan, in June 1992, Kerr apparently refused to pay Centrix for an invoice of capsules under the 1991 Supply Agreement. Discussions and disagreements between the parties followed. On July 8, 1992, in the Dentsply litigation, the Court ruled that Dentsply was entitled to injunctive relief. Thereafter, Centrix and Kerr were still unable to resolve their contract dispute. Finally, in November 1992 Centrix officially repudiated the 1990 Indemnification Agreement. (Tr. 79:12-17, 81:15-17). At the time of the repudiation, Tomassi testified that Kerr resumed control of the Dentsply litigation. (Tr. 16:2-17:5). At this point, the only issues remaining in the Dentsply litigation were a decision as to whether the judgment against Kerr should be appealed, some motions on accounting issues, and Dentsply’s request for enhanced damages. (Tr. 17:2-5). Debate over these litigation matters progressed, and on January 27, 1993, the Court entered an injunction against Kerr. Finally, on September 29, 1995, after resolution of the above described litigation matters, the Dentsply litigation was closed. A few months later, Kerr satisfied the judgment rendered against it in the Dents-ply litigation by paying Dentsply approximately $615,000 to $620,000. Although To-massi contends that Centrix was obligated to indemnify Kerr for this judgment, Cen-trix never reimbursed Kerr. (Tr. 24:18-20). In fact, Kerr and Centrix eventually became embroiled in a breach of contract lawsuit in Michigan. (Tr. 19:8-11). However, there was never an adjudication of liability in this lawsuit, because the action was resolved by a settlement, in which Kerr paid Centrix $340,000. (Tr. 23:22-23). Though seemingly concluded, the Dents-ply litigation resumed when Dentsply filed its motion for an order to show cause directed at Centrix. The Court granted Plaintiffs Motion For An Order To Show Cause, the Dentsply action was reopened, and a hearing was held to determine whether Centrix should be held in contempt for violating the January 27, 1993 injunction. Post-hearing briefing was completed by both parties summarizing their contentions presented at the hearing. ISSUES PRESENTED TO THE COURT Frequently, motions for contempt involve previously adjudged infringers who have allegedly modified their devices to avoid future infringement of a patent. However, this case presents a slightly different scenario. Here, the Court is not faced with a previously adjudged infringer, but with an entity who was not a party in the original litigation that prompted the injunction. Thus, because Centrix is a nonparty, the Court must determine, as a threshold matter, whether Centrix may properly be bound by the injunction. If this issue is resolved in the affirmative, then the Court must turn its attention to the remaining issues which are ordinarily raised by a motion for contempt for violation of an order enjoining patent infringement. Specifically, these issues are: (1) whether contempt proceedings are appropriate, and, if so, (2) whether the injunction has, in fact, been violated. KSM Fastening Systems v. H.A. Jones Co., 776 F.2d 1522, 1532 (Fed.Cir.1985). This Memorandum Opinion encompasses the Court’s findings of fact and conclusions of law regarding the issues raised by the parties in the instant contempt proceedings. DISCUSSION I Whether Centrix Is Bound By The Injunction Directed At Kerr A. Federal Rule of Civil Procedure 65(d) and the Law of Privity In pertinent part, Federal Rule of Civil Procedure 65(d) provides that an order granting an injunction “is binding upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” Fed.R.Civ.P. 65(d). Under the literal terms of this rule, it would appear that Centrix should not be bound by the injunction issued against Kerr, because Centrix was neither a party to the Dentsply litigation, nor an officer, agent, servant, employee, or attorney of Kerr. However, a proper interpretation of Rule 65(d), requires the Court to go beyond the literal language of the rule and examine the origins of the rule and the manner in which this rule has been applied. Historically, Rule 65(d) is derived from the common law principles that a person not named in a decree of injunction could be held in contempt for violation of that order in two circumstances: (1) if the unnamed person was legally identified with the named defendant, or (2) if the unnamed person aided or abetted the named person in performing enjoined acts. Golden State Bottling Co. v. NLRB, 414 U.S. 168, 179, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14, 65 S.Ct. 478, 89 L.Ed. 661 (1945); Alemite Manufacturing Corp. v. Staff, 42 F.2d 832, 833 (2d Cir.1930). In light of its common law origins, courts have rejected a narrow reading of the rule that would limit persons “legally identified with” a party to the persons specifically recited in the rule. Instead, courts have concluded that an injunction properly binds, not only the named parties, but also those identified with them in interest, in privity with them, represented by them, or subject to their control. Golden State Bottling, 414 U.S. at 179, 94 S.Ct. 414; G & C Merriam Co. v. Webster Dictionary Co., 639 F.2d 29, 36 (1st Cir.1980). In attempting to establish privity in this case, Dentsply relies on the “virtual representative” concept of privity. Under this notion of privity, a “non-party may be bound if a party is so closely aligned with its interests as to be its ‘virtual representative.’ ” Symbol Technologies v. Metrologic Instruments, 771 F.Supp. 1390, 1399 (D.N.J.1991) (citations omitted). Virtual representation occurs where there is an “ ‘express or implied legal relationship between the named party to the first action and the non-party sought to be bound.’ ” Id. at 1399-1400. Thus, a virtual relationship may be found where the nonparty exercised “control over and interest in the earlier litigation.” United States v. Web- ber, 396 F.2d 381, 387 (3d Cir.1968). Generally, the extent of control and interest in the earlier litigation necessary to bind a nonparty to an injunction may be expressed in terms of a finding that the nonparty was legally identified with the named defendant, such that the nonparty could be said to have had its day in court with respect to the validity of the injunction. G & C Merriam Co., 639 F.2d at 37. B. The Parties’ Contentions In support of its position that Centrix is in privity with Kerr and should be bound by the injunction issued against Kerr, Dentsply raises three arguments. First, Dentsply contends that Centrix was contractually obligated to defend and indemnify Kerr in patent infringement lawsuits. Second, Dentsply contends that Centrix financially and substantively controlled Kerr’s defense by paying Kerr’s attorneys’ fees, making decisions about which defenses should be presented, conducting settlement discussions with Dentsply, without Kerr’s advice or involvement, and presenting facts during trial that would not have been known to Kerr without Centrix’s involvement. Third, Dentsply argues that Centrix had actual knowledge of the injunction, and as such, should be bound by it. On the other hand, it is Centrix’s position that it has not yet had its day in court, and as such, should not be bound by the Court’s injunction. In response to Dents-ply’s arguments, Centrix argues that it was not obligated to indemnify or defend Kerr, because Kerr breached the agreement that formed the basis for Centrix’s duty to indemnify or defend Kerr. Moreover, Centrix contends that Kerr maintained control over all aspects of its own defense and that any involvement Centrix may have had in the lawsuit resulted from the Court’s decision to consolidate the Dentsply and Centrix lawsuits for the purpose of discovery. Lastly, Centrix argues that it did not have actual notice of the injunction and thus, should not be bound by it. C. Findings of Fact and Conclusions of Law Based on the evidence and testimony adduced at the hearing, the Court concludes that Centrix is bound by the Court’s January 1993 injunction, because Centrix was Kerr’s “virtual representative” in the Dentsply litigation. As explained below in detail, the Court’s conclusion of privity is based on the contracts between Kerr and Centrix, the factual account of Centrix’s role in the litigation as presented by Mr. Tomassi, and Centrix’s actual notice of the injunction. 1. Contractual Evidence The contractual evidence in this case supports the Court’s finding that Centrix controlled Kerr’s defense in the Dentsply litigation. That Centrix was to defend and indemnify Kerr was stated initially in the 1988 Supply Agreement and was reiterated three times in subsequent agreements, which the Court finds both strengthened and clarified Centrix’s role in the Dentsply litigation. (PX-92, PX-113, PX-628, C-52). Unlike the 1988 Supply Agreement which contained a general indemnification and defense provision, the 1990 Indemnification Agreement, explicitly stated that Centrix was to defend and indemnify Kerr in the Dentsply litigation. The specific indemnity obligations set forth in the 1990 Indemnification Agreement were reaffirmed by the Clarification Agreement and the 1991 Supply Agreement, which explicitly referenced the 1990 Indemnification Agreement as the controlling document for determining Centrix’s defense and indemnity obligations. (C-52 at ¶ 10b). In an attempt to nullify the impact of the 1990 Indemnification Agreement, Cen-trix contends that it was not contractually obligated to defend Kerr, because Kerr breached the 1990 Indemnification Agreement by failing to enter into a new supply agreement by April 1990. However, Cen-trix did not repudiate the contract in April 1990. Rather, in June 1990 Centrix reaffirmed its obligations under the 1990 Agreement by entering into the Clarification Agreement. Under the terms of the Clarification Agreement, the validity and enforceability of the Indemnification Agreement was still predicated upon Kerr’s entering into a new supply agreement; however, it was also “understood that the new supply agreement may or may not be executed prior to the conclusion of the trial in the Dentsply action.” (PX-628). As such, the Court finds that the terms of the Clarification Agreement effectively waived Kerr’s noncompliance with the April 1990 date and maintained the effectiveness of the 1990 Indemnification Agreement through the conclusion of the Dentsply trial, provided that Kerr eventually enter into a new supply agreement. Although Centrix did not repudiate the Indemnification Agreement in 1990, Cen-trix contends that it clearly asserted its belief that Kerr breached the Indemnification Agreement in a letter dated February 14, 1991. However, the Court finds Cen-trix’s position regarding this letter to be an overstatement of its content. While the letter indicates that Centrix threatened to consider Kerr in breach of the 1990 Agreement and to seek repayment of the attorney’s fees and expenses Centrix incurred in the defense of Kerr, the letter does not state that Centrix actually considered Kerr to be in breach. Rather, the letter informed Kerr that, only if it did not consummate a new supply agreement by March 15, 1991, would Centrix consider Kerr to be in breach of the Indemnification Agreement. The letter explicitly stated that “this breach can be avoided by executing the new agreement by March 15, 1991.” (C-51A). As such, the Court finds that this letter is not indicative of Kerr’s breach, but rather, that the letter extended Kerr’s time for compliance with the March 1990 Indemnification Agreement. In compliance with Centrix’s letter, Kerr eventually enter into the required supply agreement. (C-52). Like the Clarification Agreement, the 1991 Supply Agreement also confirmed Centrix’s obligations to defend and indemnify Kerr with respect to the Dentsply Litigation. (C-52). Moreover, this agreement was made retroactive to April 1, 1990. Given this evidence, the Court is unpersuaded by Cen-trix’s argument that Kerr breached the 1990 Agreement by failing to execute the supply agreement in April 1990. Although Centrix’s duty to defend and indemnify Kerr for the Dentsply litigation was confirmed in multiple agreements, Centrix argues a second basis for Kerr’s breach of the 1990 Indemnification Agreement. Specifically, Centrix argues that the Court should disregard the 1990 Indemnification Agreement and the subsequent agreements reiterating its effect, because Kerr eventually breached the 1991 Supply Agreement by failing to purchase the required product for the five year term specified in the agreement. In connection with this argument, Centrix highlights To-massi’s testimony that Kerr paid Centrix $340,000 to settle the breach of contract action between Centrix and Kerr. However, the Court finds Centrix’s arguments regarding Kerr’s breach of the 1991 Supply Agreement to be unpersuasive on the privity issue. First, the Court refuses to construe Kerr’s decision to settle the contract action as an admission of liability for breach. Second, despite any alleged breach, Centrix’s Dr. Dragan admits that Centrix did not repudiate the March 1990 Agreement until November 1992, well after conclusion of the Dentsply trial and several months after the alleged disagreement over the 1991 Supply Agreement. (Tr. 79, 81, 82). Moreover, irrespective of whether Kerr breached the 1991 Supply Agreement and whether this breach relieved Centrix of its contractual obligation to defend and indemnify Kerr under the 1990 Indemnification Agreement, the Court finds that during the period from March 1990 to November 1992, Centrix did, as a factual matter, defend Kerr to the extent necessary to support the conclusion of privity between Centrix and Kerr. 2. Centrix’s Role in the Dentsply Litigation In addition to the documentary evidence considered in reaching this conclusion, the Court has also considered the testimony of Stephen Tomassi and Dr. William Dragan. In evaluating the accounts of the interaction between Kerr and Centrix during the Dentsply litigation, the Court credits the testimony of Stephen Tomassi regarding Centrix’s role in the Dentsply litigation. During his testimony, Tomassi candidly admitted that Kerr controlled its litigation prior to the 1990 Indemnification Agreement and subsequent to Centrix’s November 1992 repudiation of that agreement. (Tr. 8:18-24, 16:2-7, 18:24-19:1). However, Tomassi steadfastly maintained that from March 1990 to November 1992, Kerr relinquished its control over the litigation.. (Tr. 12:14-13:23, 38:2-19, 39:11-40:14, 42:6-17). During this time frame, which included the bulk of discovery, the trial, and a number of post-trial motions, To-massi unequivocally asserts that Centrix controlled the litigation, pursuant to the terms of the March 1990 Indemnification Agreement. In an attempt to discredit Tomassi’s testimony and support its position that Kerr controlled the Dentsply litigation, Centrix highlights two portions of Tomassi’s affidavit. (PX-630). First, Centrix argues that Tomassi admitted that he represented Kerr since the filing of the lawsuit. However, in the paragraph in which this statement appears, Tomassi also explains that Centrix had an indemnity agreement with Kerr and that Centrix was not honoring the indemnity, “so Kerr has been handling the defense on its own.” (PX-630). Further, Tomassi’s affidavit is consistent with his testimony at the hearing. During the hearing, Tomassi explained that, while Kerr initially controlled the lawsuit and resumed control in November 1992, during the period from March 1990 to November 1992, Centrix controlled the litigation. (Tr. 8:18-24, 12:14-13:23, 16:2-7, 18:24-19:1, 38:2-19, 39:11-40:14, 42:6-17). Therefore, taken in context, the Court finds Centrix’s argument unpersuasive. In addition, Centrix argues that Tomas-si’s statement, that the litigation was becoming a drain on Kerr’s resources, is evidence that Kerr controlled the lawsuit. Reviewing the context for this statement, however, the Court must again reject the implication Centrix seeks to draw from it. First, the affidavit itself, reveals that this statement referred to Kerr’s position prior to the trial and described Kerr’s incentive for attempting to settle the Dentsply litigation. (PX-630). Second, Tomassi’s unshaken testimony during cross-examination clarified that this statement did, in fact, refer to the period before the March 1990. Indemnification Agreement was entered into and before Centrix took control of Kerr’s defense. (Tr. 42:1-8). Tomassi’s testimony that Centrix assumed control of Kerr’s defense following the execution of the March 1990 Indemnification Agreement is further supported by the corresponding fact that, just after this agreement was entered into, new trial counsel, the Lerner David law firm, made an appearance and replaced the previous law firms retained by Kerr. (Tr. 11:20-25, 12:1-10, 79:l-^4). In an attempt to minimize Centrix’s role in the litigation, Cen-trix suggests that Kerr retained the law firm of Lerner David. However, in light of Tomassi unswayed testimony on this issue, the Court simply cannot accept Cen-trix’s argument. Both on direct and cross examination, Mr. Tomassi emphatically affirmed that Centrix, not Kerr, retained the Lerner David law firm, and that Centrix, not Kerr, would be responsible for paying all the invoices from that firm. (Tr. 12:24-25, 13:1-5, 39:11-17, 40:10-14). Indeed, that Centrix paid for all fees charged by the Lerner David law firm from March 1990 to November 1992, was confirmed by Centrix’s Dr. Dragan. (Tr. 79:5-7). In addition to its financial control over the lawsuit, Centrix’s substantive control over Kerr’s defense in the Dentsply litigation is also evidenced by Tomassi’s unequivocal testimony on that issue. Tomas-si strenuously asserted that Centrix’s statements, that it acted only as an observer' during the Dentsply litigation and that Kerr acted independently of Centrix at all times, were untrue. (Tr. 17:14-21, 19:4A7). Tomassi further testified that Centrix’s Dr. Dragan made numerous decisions concerning which defenses to assert on behalf of Kerr and that Centrix conducted settlement negotiations with Dentsply without Kerr’s involvement. (Tr. 38:6-14, 42:6-8). Indeed, even Dr. Dragan, who denies that Centrix controlled Kerr’s defense, admits that Centrix did more than merely observe the trial and that Centrix made “suggestions” regarding beneficial strategies to the lawsuit. (Tr. 64:24-25, 65:1-2). Moreover, Tomassi’s testimony regarding the extent of Centrix’s participation in the lawsuit is supported by the record of the Dentsply litigation. During the Dents-ply trial, three of the witnesses appearing on behalf of Kerr’s defense were prominent Centrix figures: Dr. Dragan, the founder and Chairman of the Board of Centrix (D.I. 305, Trial Transcript (“TTr.”) A147-A224), John Discko, the executive Vice President of Centrix (TTr.A225-A241) and Arthur Fattibene, Secretary of Centrix and Centrix’s outside counsel. In addition, many topics raised during the trial were predicated upon facts that were entirely within Centrix’s knowledge and control. For example, during trial, the defense was presented that Dr. Dragan should have been named as a co-inventor of the ’590 Patent. (TTr.A259-A263). According to Mr. Tomassi, he neither recommended this defense, nor was he aware of the underlying factual basis for it. (Tr. 13:17-23,14:1-5). Similarly, during the trial, a number of Centrix’s witnesses testified about information which was unique to them individually or to Centrix. For instance, Centrix’s Dr. Dragan testified about correspondence and meetings between Centrix and Dents-ply (TTr.A171-A178, A181-A189), his development of the accused Kerr devices (TTr.A193-A197), non-infringement opinions he received relating to the Dentsply patents (TTr.A197-A199, A206-A207), facts relating to dentists’ practices bearing on the issue of likelihood of confusion (TTr.A218-A222), and licensing and reasonably royalty rates in the dental field. (TTr.Al89-A190, A223-A224). Likewise, Centrix’s Discko testified about a number of meetings between Centrix and Dentsply in which Kerr was not involved (TTr.A226-A241), and Centrix’s . Fattibene testified about noninfringement opinions rendered by him to Centrix. (TTr.A249-A252). Given the nature of much of this information, the Court finds that it is unlikely that it would have been known to Kerr, absent Centrix’s significant involvement. In further opposition to Dentsply’s contention that Centrix’s controlled Kerr’s defense, Centrix argues that its interests in the Dentsply litigation were different from Kerr’s interests. Specifically, Centrix argues that its primary focus was invalidating Dentsply’s patents, and that Kerr’s primary interest was in negating Dents-ply’s trademark and trade dress claims. In support of this position, Centrix relies on TRW Inc. v. Ellipse Corp., for the proposition that “privity in the law of judicial finality usually connotes representation.” 495 F.2d 314, 318 (7th Cir.1974). In reviewing the TRW decision, the Court concludes that the analysis of TRW actually belies Centrix’s position that it was not in privity with Kerr. In TRW, the Court of Appeals for the Seventh Circuit refused to apply the doctrine of res judicata to TRW, a nonparty, who agreed to indemnify a named party in a prior suit, but whose role in the prior suit was limited to observing the proceedings and filing amicus curiae briefs. In reaching this conclusion, the court noted that the crucial distinction between TRW and other cases, in which nonparty indem-nitors were found to have interests sufficiently close for establishing privity for res judicata purposes, was TRW’s limited extent of participation in the prior lawsuit. Indeed, the court explicitly distinguished TRW’s situation from the situation in which a nonparty indemnitor retained the indemnitee-defendant’s counsel and controlled the litigation. In this case, Centrix’s role in the prior litigation was much more extensive than simply observing the litigation and filing amicus curiae briefs. Given the Court’s findings based on Tomassi’s testimony regarding the extent of Centrix’s participation, the Court finds that Centrix’s role in this litigation is more akin to the latter situation distinguished by the TRW court. Thus, TRW supports the Court’s conclusion that, as a nonparty indemnitor who retained counsel and controlled the litigation, Centrix is in privity with Kerr and properly bound by the injunction. In connection with its argument that Centrix and Kerr’s interests in the litigation were diverse, Centrix also argues that Centrix and Kerr’s relationship deteriorated to the point of becoming adversarial. In support of this argument, Centrix relies on Symbol Technologies. 771 F.Supp. at 1400. In Symbol Technologies, the court examined the concept of virtual representation for purposes of privity and concluded that no virtual relationship existed between the nonparty, Metrologic, and the named party, Opticon, where Metrologic was “in competition with Opticon and had its own independent and individual agenda for its continued survival and hopeful prosperity.” Id. at 1401. However, a closer reading of the case suggests that the competitive relationship between Metrologic and Opticon was not the primary reason for the court’s conclusion that no virtual relationship existed between Metrologic and Opticon. Rather, the court explicitly noted the absence of an agreement by Metrologic to indemnify or defend Opticon in any form from a patent infringement suit and the absence of any form of contractual relationship between the Metro-logic and Opticon. Id. According to the court, had such an agreement or contractual relationship existed, then Metrologic’s situation would have mirrored the situation presented in Schnell v. Peter Eckrich & Sons, Inc., 365 U.S. 260, 81 S.Ct. 557, 5 L.Ed.2d 546 (1961). Discussing Schnell, the Symbol Technologies court described the situation in Schnell as an example of the type of virtual relationship that would permit a third party to be bound by a previous ruling. Symbol Technologies, 771 F.Supp. at 1400. In Schnell, the manufacturer agreed to defend and pay all expenses incurred in infringement suits filed against the purchaser involving the patented device, pursuant to the terms specified in their contract of sale. Schnell, 365 U.S. at 261, 81 S.Ct. at 559. Commenting upon Schnell, the court in Symbol Technologies noted that “issue preclusion was proper in Schnell against the manufacturer where the manufacturer was called in to defend a prior suit against a purchaser where the purchaser was the named party.” Symbol Technologies, 771 F.Supp. at 1400. In comparing the situation in Schnell to the situation presented by Metrologic, the Symbol Technologies court noted that “[ujnless the level of activity rises to that as found in Schnell ... neither privity nor virtual representation can be found to have occurred.” Id. In this case, the Court finds that the situation between Centrix and Kerr more closely resembles the situation in Schnell than the situation in Symbol Technologies. While Centrix and Kerr may have been in competition at some point, may have had separate agendas and may have ended up as adversaries in a breach of contract action, Centrix and Kerr had a contractual relationship and pursuant to that relationship, Centrix actually defended Kerr from March 1990 to November 1992. Thus, in accord with such cases as Symbol Technologies and Schnell^ the Court concludes that the relationship between Centrix and Kerr exemplifies the type of virtual relationship necessary to establish privity. 3. Centime’s Knowledge of the Injunction In asserting that it is not bound by the injunction issued against Kerr, Centrix argues that it did not have notice of the injunction, because neither Kerr nor Dentsply ever served a copy of the injunction on Centrix prior to Dentsply’s motion to show cause. However, Dentsply maintains that, although Centrix was not formally served with the injunction, Centrix had actual knowledge of the injunction. During the hearing, Kerr’s Mr. Tomassi testified that he spoke with Mr. Fattibene, Centrix’s long-time counsel, on numerous occasions about the injunction. (Tr. 35:17-25, 36:2-22). That Mr. Fattibene and Cen-trix knew of the injunction is further evidenced by a set of requests for admissions which were propounded by Centrix and Dr. Dragan on Kerr in April 1993, in connection with the Michigan litigation. These requests for admission were served by Mr. Fattibene and contained the following request for admission: “Kerr has been permanently enjoined by the U.S. District Court for the District of Delaware from infringing U.S. Patents 4,330,280, 4,391,590 and 4,383,853.” (PX-631). In addition, when confronted with this evidence, Dr. Dragan could not deny that Centrix had actual notice of the injunction, as early as April 1993. (Tr. 82:4-12). Given this evidence, the Court rejects Centrix argument that it had no notice of the injunction, and finds that, as early as April 1993, Centrix had actual knowledge of the injunction issued against Kerr. Because of the contractual relationship between Centrix and Kerr, Centrix’s extensive participation in the litigation and Centrix’s knowledge of the injunction, the Court concludes that privity exists between Kerr and Centrix. Because privity exists between Centrix and Kerr, the Court further concludes that Centrix is bound by the injunction issued against Kerr in the Dentsply litigation. With this threshold criteria satisfied, the Court will turn to the remaining issues of whether contempt proceedings are appropriate, and if so, whether Centrix violated the Court’s injunction. II. Whether Contempt Proceedings Are Appropriate A. Legal Standard To a large extent, the district court has discretion to determine whether infringement should be adjudicated in contempt proceedings. KSM, 776 F.2d at 1529. However, this discretion is not unlimited. The uniform view among the circuits is that “[Pjroceedings by way of contempt should not go forward if there is more than a “colorable difference” in the accused and adjudged devices”. Id. In determining whether a difference is “color-able” for the purposes of this inquiry, the Court of Appeals for the Federal Circuit employs a procedural test, rather than a substantive test. Under this test, which is the majority view, the original infringing product is compared with the accused device to determine whether substantial new issues need to be litigated to determine infringement. Id. at 1530; see also Additive Controls & Measurement Systems, Inc. v. Flowdata, Inc., 154 F.3d 1345, 1348 (Fed.Cir.1998). If substantial disputed issues exist, then there is a “fair ground for doubt” that the injunction has been violated, and contempt proceedings are inappropriate. Id. at 1532. On review, courts of appeals will defer to the judgment of the district court on the issue of whether a contempt proceeding is appropriate, provided that the district court exercises its discretion, with these constraints in mind. B. The Parties’ Contentions In arguing that the differences between the devices are merely colorable and insufficient to raise substantial disputed issues requiring full litigation, Dentsply has offered the testimony of Mr. Scales, a chemical engineer who is the Research and Developer Manager at the L.D. Caulk Division of Dentsply International. Comparing the NuGun and Vivadent devices to the Kerr device, Mr. Scales noted differences, which he described as “cosmetic.” (Tr. 108:21, 117:24). With regard to the NuGun device, Mr. Scales noted that the NuGun had thicker sidewalls than the Kerr device. In addition, the cartridge compartment of the Nu-Gun was configured to have two portions of different diameter, while the compartment on the Kerr device has a single diameter. (Tr. 108:20-25). However, Mr. Scales testified that these differences did not change the essential nature of the Nu-Gun device as compared to the Kerr device, and were irrelevant to the elements of the patents in issue. (Tr. 108:20-109:1-5). With regard to the Vivadent device, Mr. Scales noted that there was a difference in the shape of the cutaway in the forward end of the barrel, as compared to the Kerr device. According to Mr. Scales, this difference exists because the Vivadent device accommodates a cartridge of a different dimension than the Kerr device. (Tr. 117:18-118:1). Like the differences in the NuGun device, Mr. Scales testified that the differences in the Vivadent device did not change the essential nature of the Viva-dent device, as compared to the Kerr device. In opposition to Dentsply’s contention that the differences among the devices are merely colorable, Centrix contends that the differences are substantial. With regard to the NuGun, Centrix specifically raises the following differences which it describes as substantial: (1) the NuGun does not have flexible sidewalls that extend toward one another a distance less than the diameter of the cartridge, and therefore the NuGun does not provide a snap-acting retaining means, and (2) the NuGun lacks an undercut groove. In addition, Centrix argues that the fact that a new patent issued on its NuGun construction evidences that the NuGun device is substantially different from the Kerr device. With regard to the Vivadent device, Centrix contends that the Vivadent device is substantially different from the Kerr device, because: (1) the Vivadent device utilizes different cartridges than the Kerr device, and (2) only Vivadent cartridges may be used in the Vivadent device. In support of its assertions, Centrix offered the testimony of Dr. William Dragan, founder, Chairman • and Chief Executive Officer of Centrix. C. Findings of Fact and Conclusions of Lato 1. Comparison of NuGun device to Kerr device In comparing the accused NuGun device to the Kerr Unidose device, which was previously determined to infringe the patents in issue in this case, the Court concludes that the differences between the devices are merely colorable. While the devices are different in size and color, the Court concludes that these differences are insignificant in the context of infringement of the ’280 and ’853 Patents. With regard to the thickness of the barrel of the NuGun and its compartment configuration, the Court credits the testimony of Mr. Scales, and finds, based on his testimony, that these differences are inconsequential to the essential nature of the NuGun device and to the elements of the patent, as compared to the Kerr device. Accordingly, for purposes of determining the propriety of contempt proceedings, the Court concludes that these differences do not raise substantial disputed issues requiring litigation. In considering whether the specific issues raised by Centrix concerning the Nu-Gun device are substantial disputed issues requiring full litigation, the Court finds an analogy to summary judgment to be helpful. Similar to the burdens borne by each party on summary judgment, Dentsply, as the movant in this case, must show that there are no substantial disputed issues of fact underlying a determination of infringement. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Stated another way, Dentsply must show an absence of evidence to support Centrix’s case. As the non-movant, Centrix must proffer counter-evidence showing that there is a substantial disputed issue of fact requiring litigation. Regarding the flexibility, distance of the sidewalls, and snap-fit issue, Dentsply offered empirical evidence from flexibility tests that Mr. Seales performed on the NuGun, as well as measurements of the NuGun device and its cartridges. According to Mr. Scales’ tests and measurements, the NuGun’s walls are flexible and do extend toward one another a distance less than the diameter of the cartridge, thereby providing a snap-fit for an inserted cartridge. In opposition to Dentsply’s evidence, Centrix’s Dr. Dragan testified that the walls of the NuGun are inflexible, do not extend toward one another, and the inflexibility of the walls results in a “press-fit” retaining means, rather than a snap-fit retaining means. However, unlike Mr. Scales testimony, Dr. Dragan’s testimony was not based on any measurements or tests. Further, Centrix did not offer any measurements or tests of its own contradicting the results of Mr. Scales. Accordingly, the Court rejects Dr. Dragan’s testimony as conclusory argument. Like summary judgment proceedings, contempt proceedings are summary in nature. Therefore, like summary judgment proceedings, contempt proceedings require affirmative evidence, rather than mere argument, to create a substantial triable issue. Accordingly, because Centrix’s arguments concerning the flexibility and distance of the sidewalls of the NuGun are factually unsubstantiated, the Court concludes that Centrix has not raised new or open issues requiring additional litigation. While Centrix did not offer affirmative evidence challenging Mr. Scales, Centrix urged the Court not to credit Mr. Scales’ testimony. (D.I. 345 at 21-22). According to Centrix, Mr. Scales “cannot be considered as a well-qualified witness or expert.” (D.I. 3347 at 8, n. 6). In light of the position which Centrix, through Kerr, took during the trial in Civil Action 89-167, the Court rejects Centrix’s argument concerning Mr. Scales’ credibility. At the trial, Centrix took the position that one of ordinary skill in the art would have a four year engineering degree and two to four years of additional experience in the field. (TTr.l496:14-21). This is precisely the education and experience possessed by Mr. Seales, and therefore, by Centrix’s own definition, Mr. Scales is a qualified witness. With respect to Centrix’s argument that the NuGun lacks an undercut groove, Centrix again relies on the conelusory testimony of Dr. Dragan. However, the Court finds that Dr. Dragan’s testimony does not raise a substantial issue precluding summary proceedings, because his testimony concerning the undercut groove relates to claim construction. Any issue created by Dr. Dragan’s testimony on the lack of an undercut groove in the NuGun device pertains to whether the NuGun device meets the “undercut groove” element recited in the claims of the patents. Issues of claim interpretation are matters of law exclusively for the Court, and therefore, issues of claim interpretation are insufficient to create a material issue of fact precluding, summary adjudication of infringement. See George v. Honda Motor Co., 802 F.2d 432, 434 (Fed.Cir.1986) (holding that dispute concerning legal issues of claim interpretation is insufficient to preclude summary judgment). Accordingly, the Court concludes that Centrix’s undercut groove argument is insufficient to raise a substantial triable issue. Lastly, to the extent that Centrix argues that the NuGun and Kerr devices are substantially different, because a new patent issued on the NuGun construction requiring inflexible sidewalls and other features, the Court rejects Centrix’s argument. In the context of determining whether contempt proceedings are appropriate, it is not Centrix’s new patent which must be compared with the adjudged infringing Kerr device, but rather, it is Centrix’s NuGun device which must be compared with the Kerr device. See KSM, 776 F.2d at 1530 (requiring comparison of products for determination of whether contempt proceedings are appropriate). While Centrix may have intended to create a product with inflexible sidewalls, the unrebutted empirical evidence offered by Dentsply shows that the NuGun does not comport with Centrix’s intentions. Therefore, the Court finds the issuance of a new patent irrelevant to determining the propriety of contempt proceedings. 2. Comparison of the Vivadent device to the Kerr device Upon visually comparing the Vivadent device with the Kerr device, the Court finds that the devices are virtually identical. While the Court notes that there is a different shape cutaway in the Vivadent device, the Court credits the testimony of Mr. Scales and finds that this difference is inconsequential to the nature of the device and the elements of the patent. As Mr. Scales testified, the difference in shape in the Vivadent device merely serves to accept a different cartridge than the Kerr device, and the type cartridge the device accepts is irrelevant to the nature of the device and the elements of the patents. Indeed, it is the Vivadent ejector holder and not the Vivadent cartridge that is accused of infringing the ’280 and ’853 Patents. To the extent that Centrix argues that the Vivadent device is substantially different from the Kerr device, because it accepts a different cartridge and operates only with a Vivadent cartridge, the Court rejects Centrix’s ' argument. The ’280 and ’853 Patents neither call for a specific type of cartridge, nor require the interchangeability of cartridges, as Centrix’s argument suggests. . Therefore, as discussed above, the cartridge is irrelevant to this infringement action. Accordingly, the Court finds that the differences between the Vivadent device and the Kerr device are insufficient to raise substantial disputed issues. 3. Conclusion In sum, the Court concludes, based on Mr. Scales’ testimony and on the Court’s visual inspection and utilization of the products, that a comparison between the NuGun device and the Kerr device, and the Vivadent device and the Kerr device, shows no more than “colorable” differences. Further, the Court concludes that Centrix has failed to offer evidence creating a substantial issue requiring litigation. Accordingly, the Court concludes that contempt proceedings are appropriate. With this established, the Court will proceed to the next inquiry, which is whether the accused NuGun and Vivadent devices infringe the claims of the patents in issue. III. Whether Centrix Violated The Injunction With privity and the propriety of contempt proceedings established, the Court must determine whether Centrix violated the Court’s January 1993 injunction, such that Centrix can be held in contempt. In adjudicating whether the injunction has been violated, the Court must determine whether the accused NuGun and Vivadent devices literally infringe Claim 1 of the ’853 and ’280 Patents, as Dentsply contends. A. The Law of Infringement A patent is infringed when a person “without authority makes, uses or sells any patented invention, within the United States during the term of the patent.... ” 35 U.S.C. § 271(a). In addition, whoever actively induces infringement of a patent or sells a material for use in practicing a patented process is liable as an infringer. 35 U.S.C. § 271(b), (c). However, before one can be held liable for inducing infringement by a third party, it must be shown that there is direct infringement of the patent by the third party. Hodosh v. Block Drug Co., Inc., 833 F.2d 1575, 1578 (Fed.Cir.1987), cert. denied, 485 U.S. 1007, 108 S.Ct. 1472, 99 L.Ed.2d 701 (1988). Generally, in ascertaining whether a patent has been infringed, the patent owner has the burden of proof, and must meet its burden by a preponderance of the evidence standard. SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). However, to show that a defendant is civilly liable for contempt, the patent owner bears a higher burden. To show contempt, the patent owner must prove by clear and convincing evidence that the accused device falls within the admitted or adjudicated scope of the claims, and is therefore an infringement. Pirkle v. Ogontz Controls Co., 39 U.S.P.Q.2d 1317, 1996 WL 146306 (E.D.Pa.1996). A patent owner may prove infringement under either of two theories: literal infringement or the doctrine of equivalents. Under the theory of literal infringement, infringement occurs where each element of at least one claim of the patent is found in the alleged infringer’s product. Panduit Corp. v. Dennison Mfg. Co., 836 F.2d 1329, 1330 n. 1 (Fed.Cir.1987); Robert L. Harmon, Patents and the Federal Circuit 195 & n. 31 (3d ed.1994). A claim in a patent can only be infringed if it reads on each and every element of the alleged infringer’s product. American Hoist & Derrick Co. v. Manitowoc Co., Inc., 603 F.2d 629, 630 (7th Cir.1979); see also Amstar Corp. v. Envirotech Corp., 730 F.2d 1476, 1484 (Fed.Cir.), cert. denied, 469 U.S. 924, 105 S.Ct. 306, 83 L.Ed.2d 240 (1984) (infringement avoided only if ele ment present in alleged infringing process absent in patented invention); Hormone Research Found., Inc. v. Genentech, 904 F.2d 1558, 1562 (Fed.Cir.1990), cert. dismissed, 499 U.S. 955, 111 S.Ct. 1434, 113 L.Ed.2d 485 (1991) (infringement only if each claim or equivalent found in accused invention). If a patent has a series of claims, and one claim is infringed, then the entire patent is infringed. Panduit, 836 F.2d at 1330 n. 1. Under the theory of the doctrine of equivalents, however, infringement may be established even where elements in the claimed invention are missing from the alleged infringer’s product, if the “accused device performs substantially the same function in substantially the same way to achieve substantially the same result as the claimed device.” Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097 (1950); Warner-Jenkinson Company, Inc. v. Hilton Davis Chemical Co., 520 U.S. 17, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997) (declining to overrule Graver Tank); Malta v. Schulmerich Carillons, Inc., 952 F.2d 1320, 1325 (Fed.Cir.1991). To find infringement under either theory, the Court must undertake a two-step process. First, it must interpret the claims at issue by evaluating the language of the claims (“claim interpretation”). Miles Lab., Inc. v. Shandon, Inc., 997 F.2d 870, 876 (Fed.Cir.1993), cert. denied, 510 U.S. 1100, 114 S.Ct. 943, 127 L.Ed.2d 232 (1994). Claim interpretation is a question of law. Markman v. Westview Instruments, Inc., 52 F.3d 967, 977-978 (Fed.Cir.1995), aff'd, 517 U.S. 370, 388-390, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). When construing the claims of a patent, a court considers the literal language of the claim, the patent specification and the prosecution history. Markman, 52 F.3d at 978. A court may consider extrinsic evidence, including expert and inventor testimony, dictionaries, and learned treatises, in order to assist it in construing the true meaning of the language used in the-patent. Id. at 980 (citations omitted). A court should interpret the language in a claim by applying the ordinary and accustomed meaning of the words in the claim. Envirotech Corp. v. Al George, Inc., 730 F.2d 753, 759 (Fed.Cir.1984). However, if the paten