Full opinion text
ORDER AND OPINION FRIEDMAN, District Judge. Presently before the court are plaintiffs, MercExchange, L.L.C., renewed motion for entry of a permanent injunction and defendants’, eBay, Inc. and Half.com, Inc., motion to stay the proceedings of both the '265 and '051 patent disputes; the court held oral argument on both motions. For the reasons set out herein, the court DENIES plaintiffs motion for a permanent injunction, and GRANTS in part, and DENIES in part, defendants’ motion to stay the proceedings. With respect to the motion to stay, the court hereby ORDERS that the proceedings involving the '265 patent be SEVERED from those involving the '051 patent, and addressing such patent disputes separately, the court GRANTS defendants’ motion to stay the '051 proceedings and DENIES defendants’ motion to stay the '265 proceedings. I. Procedural History On August 6, 2003, subsequent to a jury verdict finding that eBay and Half.com (collectively “eBay”) willfully infringed MercExchange’s '265 and '176 patents, this court entered an order disposing of several post-trial motions, which included the denial of MercExchange’s original motion for a permanent injunction. Mercexchange, L.L.C. v. eBay, Inc., 275 F.Supp.2d 695 (E.D.Va.2003). On appeal, the Federal Circuit affirmed the damages award for the '265 patent, reversed the '176 damages, finding such patent invalid based upon obviousness, and reversed the denial of MercExchange’s injunction motion, indicating that injunctions should essentially issue as a matter of course in patent infringement actions upon a finding of validity and infringement; additionally, the Federal Circuit vacated this court’s grant of summary judgment in favor of eBay on MercExchange’s '051 patent. MercExchange, L.L.C. v. eBay, Inc., 401 F.3d 1323 (Fed.Cir.2005). Subsequent to the Federal Circuit’s opinion, the Supreme Coui’t granted certiorari only with respect to the issue involving the applicable standard in patent infringement cases when a prevailing patent holder seeks entry of a permanent injunction. eBay Inc. v. MercExchange, L.L.C., — U.S. -, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). The Supreme Court thereafter vacated the Federal Circuit’s injunction ruling, establishing the “traditional” four-factor equitable test as the proper standard for the injunction calculus in all cases, including patent disputes. Id. Accordingly, the CouxT ordex-ed that the '265 injunction dispute be remanded to this coxxrt so that it may apply “the traditional four-factor framework that governs the awax'd of in-junctive relief ... in the first instance.” Id. at 1841. During the time the appeal was pending before the Federal Circuit and the Supreme Court, the United States Patent and Trademark Office (“PTO”) granted eBay’s request to initiate reexamination proceedings on both the '265 and '051 patents; non-final PTO office actions in both reexaminations have since indicated that such patents are invalid as obvious, prompting eBay to file its motion to stay the proceedings. As part of the process of determining whether an injunction shall issue, or whether the proceedings, including the injunction determination, shall be stayed, this court reopened the x-ecord to permit both plaintiff and defendants the opportunity to update the court on factual developments occurring over the past three years. MercExchange, L.L.C. v. eBay, Inc., 467 F.Supp.2d 608 (E.D.Va.2006). Although permitting additional discovery delayed the resolution of both pending motions, the court found such exercise necessary as there appeared to be significant post-trial factual developments, and the stale record prevented the court from conducting the analysis necessary to resolve either party’s motion seeking prospective equitable relief. See Lyons Partnership, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 799 (4th Cir.2001) (“A prospective injunction is entered only on the basis of current, ongoing conduct that threatens future harm.”) (emphasis added); Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802, 819 (4th Cir.1991) (reversing the grant of an injunction and remanding the case “without prejudice to the right of the plaintiff to premise its motion on new or changed circumstances”). Although this court found it necessary to reopen the record, the parties were repeatedly admonished that the court would not entertain attempts to re-litigate past issues nor recast previously established facts in a light more favorable to such pax-ty. Thus, in applying the four-factor equitable test, this court will ignore eBay’s assertions that it never willfully infringed the '265 patent as the jury’s verdict, affirmed by the Federal Circuit, establishes that at the time of trial eBay was a willful infringer of plaintiffs valid and enforceable '265 patent. Similarly, the court will ignore arguments advanced by MercExehange or its experts suggesting that MercExehange has always endeavored to develop the '265 patent and uphold its right to exclude as the court previously determined that MercExehange exhibited a “willingness to license its patents,” a “lack of commercial activity in practicing the patents,” and that MercEx-change’s “numerous comments to the media before, during, and after th[e] trial indicate] that it did not seek to enjoin eBay but rather sought appropriate damages for the infringement.” MercExchange, 275 F.Supp.2d at 712. II. Factual Developments Subsequent to Trial The primary factual developments occurring subsequent to trial that are relevant to the instant opinion are: (1) eBay requested that the PTO reexamine the patentability of MercExchange’s '265 and '051 patents and after granting such request, the PTO issued non-final actions indicating that both patents are invalid due to prior art; and (2) in 2004, Merc-Exchange granted uBid, Inc. (“uBid”), an online auction and fixed price marketplace that competes with eBay for a portion of the relevant market, a non-exclusive license to its entire patent portfolio. Additionally, in 2006, on the heels of the Supreme Court’s opinion remanding the injunction dispute, uBid considered selling a 25% interest in its company to MercEx-change in return for an exclusive license to the '265 patent. Set forth below is a more thorough discussion of the facts regarding MercExchange’s post-trial relationship with uBid. uBid.com is an auction website offering items for sale both through traditional auction bidding and through a “buy-it-now” option purportedly covered by the '265 patent. uBid launched its buy-it-now option in order to stay competitive with eBay; however, once uBid learned of the instant litigation, it voluntarily suspended use of such functionality (Merc. Suppl. Brief Ex.l, at 5). In May 2004, subsequent to the jury verdict and this court’s denial of an injunction, but prior to the Federal Circuit’s opinion on appeal, uBid and Merc-Exchange entered into an agreement granting uBid a non-exclusive license to MercExchange’s patent portfolio of present and future patents (Merc. Suppl. Brief Ex.3). The May 2004 license agreement called for a $150,000 fixed payment and a structured royalty to begin when uBid reached $500 million in annual qualified gross market sales (Merc. Suppl. Brief Ex.3). uBid’s CEO, Robert Tomlin-son, indicated that uBid entered into such licensing agreement in part to avoid costly litigation (Merc. Suppl. Brief Ex.2, at 84-89) Furthermore, emails leading up to such agreement exchanged between Tom-linson and Tom Woolston of MercEx-change, the inventor of the patents-in-suit, reveal that uBid chose to obtain the license in lieu of spending money “on a detailed legal opinion as to [the] patents and [their] impact on uBid” (eBay Suppl. Brief Ex.5). Tomlinson’s emails indicate that $150,000 was “more than the legal review but better spent to secure our relationship”; furthermore, Tomlinson stated that “in return” for a license to MercExchange’s patents he would “work directly with [Woolston] and [his] group to secure [their] eBay position ” and any other challenges in front of them (eBay Suppl. Brief Ex.5) (emphasis added). An email sent by Tomlinson over two years later confirms that avoidance of litigation was the major factor in uBid’s decision to obtain a non-exclusive license; the August 2006 email stated: “As you know, we chose to license the patents as a cost effective way to limit any litigation at a very critical time in uBid’s relaunch” (eBay Suppl. Brief Ex.23). Such email again indicates that uBid had “not engaged our attorneys [sic] currently or in the past for a legal opinion as to the merits of the patents” (eBay Suppl. Brief Ex.23). In addition to the non-exclusive license obtained by uBid in 2004, beginning in May of 2006, in the immediate wake of the Supreme Court’s opinion remanding the injunction determination, uBid and Merc-Exchange conducted preliminary negotiations whereby uBid considered obtaining an exclusive license to MercExchange’s '265 patent in exchange for a 25% equity stake in uBid (Merc. Suppl. Brief Ex.2, at 207-08, 299). uBid reports that it recognized the value in an exclusive sublicense because if uBid were the only website permitted to utilize the '265 patent, sellers desiring to list goods at a fixed price would be driven from eBay to uBid (Merc. Suppl. Brief Ex.2, at 211). Such concept, purportedly developed by uBid, never reached fruition due to significant uncertainty faced by uBid including both “valuation uncertainty” and “actual infringement uncertainty” (Merc. Suppl. Brief Ex.2, at 212). Such uncertainty was driven by not only the unresolved status of the injunction, but also concerns regarding whether eBay continued to infringe as well as questions surrounding the continuing validity of MercExchange’s patents (Merc. Suppl. Brief Ex.2, at 212, 227). More specifically, uBid explained that “there is really not much one could build around [such] concept” until it was determined whether eBay designed around the patent as a successful design-around would prevent eBay from losing its current customers (Merc. Suppl. Brief Ex.2, at 212-13). Likewise, uBid recognized the reality that if the PTO determined that the patents were invalid then uBid would “have Jack relative to what [it] would give away for 25 percent of [its] ownership” (Merc. Suppl. Brief Ex.2, at 225). III. eBay’s Motion to Stay the Proceedings eBay’s motion to stay seeks to stay the proceedings with respect to both the '265 patent and '051 patent pending the ongoing PTO reexaminations. “It is well-settled law that a district court may exercise its discretion when ruling on a motion to stay proceedings pending reexamination of the patents-in-suit by the PTO.” NTP, Inc. v. Research In Motion, Ltd., 397 F.Supp.2d 785, 787 (E.D.Va.2005). Although the PTO has not yet issued a final office action in either pertinent reexamination, a ruling that would be ap-pealable to the Board of Patent Appeals and Interferences (BPAI) and ultimately the Federal Circuit, the PTO has issued interim office actions in both reexaminations, twice indicating that all claims of the '265 patent are invalid as obvious and similarly finding nearly all claims of the '051 patent invalid over prior art. As discussed in detail below, after exercising its discretion and balancing the equities, the court grants defendants’ motion to stay the '051 proceedings and denies defendants’ motion with respect to the '265 proceedings. The court reaches differing conclusions regarding the two patents due to the vastly differing procedural postures of such discrete infringement disputes. Tellingly, unlike the alleged infringement of the '051 patent, which never reached a jury, after a five-and-a-half week jury trial, the '265 patent was deemed valid and infringed, and a $25 million damage award for such infringement was affirmed by the Federal Circuit and is now final. A district court has broad discretion to grant or deny a stay pending PTO reexamination of the patents-in-suit and “is under no obligation to delay its own proceedings by yielding to ongoing PTO patent reexaminations, regardless of their relevancy to infringement claims which the court must analyze.” NTP, 397 F.Supp.2d at 787; see Viskase Corp. v. American Nat. Can Co., 261 F.3d 1316, 1328 (Fed.Cir.2001) (“The court is not required to stay judicial resolution in view of the reexaminations.”). Although a court is not obligated to stay an infringement case based upon a parallel reexamination, it may opt to do so in order to avoid inconsistent results, narrow the issues, obtain guidance from the PTO, or simply to avoid the needless waste of judicial resources, especially if the evidence suggests that the patents-in-suit will not survive reexamination. See Gould v. Control Laser Corp., 705 F.2d 1340, 1342 (Fed.Cir.1983) (“One purpose of the reexamination procedure is to eliminate trial of that issue (when the claim is canceled) or to facilitate trial of that issue by providing the district court with the expert view of the PTO (when a claim survives the reexamination proceeding).”); Patlex Corp. v. Mossinghoff, 758 F.2d 594, 602 (Fed.Cir.1985) (explaining that PTO reexaminations can “settle validity disputes more quickly and less expensively than the often protracted litigation involved in such cases,” can aid the trial court in making informed validity decisions, and will ultimately reinforce investor confidence in the patent system by creating a broader opportunity for the PTO to review doubtful patents); Medichem, S.A. v. Rolabo, S.L., 353 F.3d 928, 936 (Fed.Cir.2003) (recognizing the district court’s power to stay proceedings in a patent interference dispute pending the BPAI’s ruling as doing so “may permit the district court to avoid a needless duplication of efforts”). Additionally, in considering the propriety of a stay, district courts generally consider the stage of discovery, whether a trial date has been set, and whether a stay will unduly prejudice the non-moving party. Xerox Corp. v. 3Com Corp., 69 F.Supp.2d 404, 406 (W.D.N.Y.1999). A review of relevant caselaw indicates that district courts routinely grant pre-trial stays when PTO reexaminations are underway and evidence suggests that the patents-in-suit may not survive reexamination. See, e.g., Bausch & Lomb Inc. v. Alcon Laboratories, Inc., 914 F.Supp. 951, 952-53 (W.D.N.Y.1996) (staying the case prior to trial as a reexamination was underway, there was “a flurry of activity at the PTO ... which appears to implicate the validity of the '607 patent,” and staying the matter would avoid the needless waste of “time, resources, and significant efforts,” avoid the possibility of inconsistent results, and potentially eliminate the need for trial); Lentek Int’l, Inc. v. Sharper Image Corp., 169 F.Supp.2d 1360, 1362 (M.D.Fla.2001) (“As several courts, [including the Federal Circuit] have noted, the sponsors of the patent reexamination legislation clearly favored the liberal grant of stays by the district courts when patents are submitted for reexamination as a mechanism for settling disputes quickly and less expensively and for providing the district courts with the expertise of the patent office.”). A. '265 patent In seeking a stay of the '265 patent proceedings, eBay relies primarily on Standard Havens Products, Inc. v. Gencor Indus., 996 F.2d 1236, 1993 WL 172432 (Fed.Cir.1993) (unpublished) (Standard Havens III), a one-page unpublished Federal Circuit opinion reversing the district court’s denial of a stay subsequent to a completed PTO reexamination. Although eBay urges this court to stay the '265 proceedings based upon what eBay characterizes as facts “remarkably similar” to those of Standard Havens, there are several key differences which lead the court to conclude that a stay is not warranted. First, in Standard Havens, the PTO reexamination was completed as not only had the patent examiner issued a final action rejecting the patent at issue, but the BPAI affirmed the majority of the grounds on which the patent examiner relied in issuing such rejection. Standard Havens Products, Inc. v. Gencor Indus., 953 F.2d 1360, 1366 (Fed.Cir.1991) (Standard Havens I). At the time the district court denied the defendant’s motion to stay the proceedings, the BPAI decision was on appeal to the District Court for the District of Columbia, and thus, two different district courts were involved in the dispute at the same time. Standard Havens Products, Inc. v. Gencor Indus., 810 F.Supp. 1072, 1073 (W.D.Mo.1993) (Standard Havens II). In contrast, here, the PTO has not yet issued a final action, and even if it had, an administrative appeal to the BPAI could take years. Thus, unlike Standard Havens where two district courts were simultaneously involved, here, eBay seeks a stay of the district court’s post-trial proceedings pending a potentially lengthy administrative process of which the initial phase has not yet been finalized; at such a late stage in the trial proceedings, the court does not favorably view further delay predicated upon an administrative process of indeterminate length. Second, unlike the instant matter where there is a final damages award affirmed by the Federal Circuit, in Standard Havens the damages remained unresolved as the Federal Circuit vacated the jury’s damage calculation and, prior to recalculation of damages, the PTO reexamination proceedings concluded prompting the defendant’s motion to stay. Standard Havens II, 810 F.Supp. at 1073. The final and affirmed damages award in this matter further illustrates the advanced stage of the '265 litigation in comparison to the PTO reexamination which has yet to yield a final office action let alone a BPAI ruling. Third, considering the weight to afford Standard Havens, the Federal Circuit’s opinion is unpublished, offers very limited analysis, and appears to be premised in part upon the district court “incorrectly concluding] that the reexamination decision can have no effect on th[e] infringement suit.” Standard Havens III, 996 F.2d 1236, 1993 WL 172432, at *1. In contrast, here, the court recognizes the impact of a final PTO finding of invalidity, affirmed by the BPAI and the Federal Circuit; however, due to the remoteness of such potential outcome and the advanced stage of the '265 proceedings in this court, the court opts not to subvert itself to an administrative process still in its initial stages when the court has already conducted a lengthy trial, the jury returned a verdict and damage award, and such verdict and damage award were affirmed by the Federal Circuit. See Viskase, 261 F.3d at 1328 (“[A district] court is not required to stay judicial resolution in view of [PTO] reexaminations.”). In addition to the differences between the instant facts and those of Standard Havens, the court has considered the timing of eBay’s request for reexamination; namely, that reexamination was sought by eBay after the jury reached a verdict on the '265 patent in favor of MercExchange. Thus, even in light of the non-final PTO actions indicating that all claims of the '265 patent are invalid as obvious, the court is not inclined to stay the post-trial proceedings as doing so would create the incentive for adjudicated infringers to seek to circumvent an otherwise enforceable jury verdict by utilizing an alternate forum. See Hoechst Celanese Corp. v. BP Chemicals Ltd., 78 F.3d 1575, 1584 (Fed.Cir.1996) (recognizing that it “was fully within the court’s discretion” to deny a pre-trial motion to stay the proceedings based a reexamination request filed six months prior to trial “lest the trial schedule be manipulated or unduly delayed”). Furthermore, as several cases cited above establish, the primary benefits of the PTO reexamination process are that it can narrow the issues for trial, provide the court guidance, and avoid the waste of significant time and resources if the patents-in-suit were in fact improvidently granted; post-verdict reexaminations plainly fail to provide such benefits and although the PTO may ultimately “correct” a trial court by determining that the patents-in-suit are invalid, this court need not subvert itself to the administrative timetable based upon such possibility. As a result of the factors discussed above, the court declines to stay the '265 proceedings based upon the PTO reexamination, initiated subsequent to trial, as the '265 infringement suit has already been tried by a jury and a final verdict and damage award has been affirmed by the Federal Circuit. B. '051 patent The analysis relevant to eBay’s motion seeking a stay of the '051 patent proceedings is markedly different from that of the '265 patent, primarily based upon the stage of the litigation in comparison to the stage of the PTO reexaminations. Such clear difference prompted MercExchange to both concede in its briefs that the '051 patent creates a “closer question” than the '265 patent and concede at oral argument that MercExchange was unlikely to prevail on such issue. Tellingly, unlike the advanced stage of the litigation involving the '265 patent, the '051 patent never reached the jury as prior to the 2003 infringement trial on the '265 and '176 patents, the court granted summary judgment in favor of eBay on the '051 patent, finding such patent unenforceable for failing to provide an adequate written description. This court’s grant of summary judgment was thereafter reversed by the Federal Circuit, but as five years have passed since discovery was conducted on such dispute, it does not appear that the parties are presently prepared for trial. Likewise, the fact that a large portion of the trial evidence will involve experts further indicates that both plaintiff and defendants will need to expend significant additional time and resources to prepare for trial. Furthermore, unlike the '265 patent, for which eBay requested reexamination subsequent to trial and subsequent to an unfavorable verdict, reexamination of the '051 patent was requested prior to trial and after a favorable summary judgment ruling; thus, no concerns regarding manipulation of the reexamination process exist. See Everything For Love.com, Inc. v. Tender Loving Things, Inc., No. CIV 02-2605-PHX-EHC, 2006 WL 2091706, at *4 (D.Ariz. July 21, 2006) (unpublished) (indicating that although the “case is mature” in that discovery was complete and the case was originally scheduled for trial approximately one year prior, a stay was warranted because the defendant had not “abused the reexamination process in an attempt to delay trial proceedings” and a stay would avoid inconsistent results and allow the court to benefit from the PTO’s expertise). A review of prior district court cases reveals that courts frequently justify imposing a stay based upon the statute requiring that PTO reexaminations be “conducted with special dispatch.” 35 U.S.C. § 305. This court, however, affords minimal weight to such statutory requirement as the undeniable reality is that even if the PTO promptly responds to all filings, the reexamination process, similar to patent litigation itself, can be long and drawn out; the gravity of the stakes in most disputes results in further extensions of the process as appeals to both the BPAI and Federal Circuit are probable in the event of a ruling unfavorable to the patent holder. See, e.g., In re American Academy of Science Tech Center, 367 F.3d 1359, 1362-63 (Fed.Cir.2004) (affirming the BPAI’s claim construction ten years after the request for PTO reexamination was filed). Notwithstanding such reality, this court endeavors to discover the truth, and to do so in a reasonable and equitable manner without the needless waste of the court’s, or the litigants’ time and resources. Here, significant time and resources would undoubtedly be poured into both trial preparation and the '051 trial itself as: (1) prior discovery/expert reports may be stale; (2) the stakes are high and the history of this case unquestionably indicates that a trial on the '051 patent would be contentious, complex, and lengthy; and (3) eBay’s preliminary evidence regarding its purported design-around of the '265 patent suggests that eBay also believes to have designed around the '051 patent and introduction of such issue will increase both the complexity of the '051 litigation and the extent of discovery necessary prior to trial. Accordingly, just as there is no escaping the reality that the PTO process can be lengthy, there is no escaping the reality that the '051 trial will be a battle of experts that lasts weeks, if not months, and costs the litigants millions of dollars in legal fees and expenses. Furthermore, the potentially lengthy PTO reexamination process, which is already underway, will not be stayed or have issues narrowed based upon a concurrent trial; rather, two independent complex resolution processes will concurrently consume federal resources while endeavoring to answer the essentially the same question. Thus, even though this court “is under no obligation to delay its own proceedings by yielding to ongoing PTO patent reexaminations,” NTP, 397 F.Supp.2d at 787, the fact that the court has the ability to disregard the ongoing reexaminations and proceed to trial does equate with the conclusion that the prudent course is to in fact charge forward. On the instant facts, charging ahead with a lengthy and complex trial when there are significant questions regarding the patentability of plaintiffs invention does not appear prudent. Tellingly, the PTO only grants a patent reexamination after objectively finding “that a substantial new question of patentability” exists, 35 U.S.C. § 304, and here, not only has the PTO granted a reexamination request, but it has previously issued two interim actions rejecting all claims of the '051 patent, the second of such actions initially intended to be final (eBay Mo. to Stay Ex. 14, 22). Subsequent to the proposed final action, MercExchange filed a petition requesting entry of a Supplemental Amendment, add-mg fifty-two additional claims to the '051 patent thereby doubling the number of original claims (eBay Mo. to Stay Ex.22). Thereafter, the PTO issued a non-final action rejecting the vast majority of the original and new claims, and although a small number claims were apparently recognized as patentable, it appears that the PTO rejected all one hundred and four claims as indefinite (eBay Mo. to Stay Reply Ex.28). Subsequent to such interim office action, MercExchange withdrew all fifty-two of the newly added claims, once again relying upon the original fifty-two claims which were twice rejected prior to MercEx-change’s supplemental amendment (eBay Suppl. Brief 18-20). The court lacks detailed information regarding many developments in the PTO reexamination of the '051 patent as the ex parte process is not transparent to this court; however, what is clear to this court is that MercExchange is currently in the trenches fighting for the continued survival of its '051 patent. Because such fight has been underway for over three years, is being waged in the most appropriate forum, and the PTO will ultimately provide an “expert view” on the validity of the '051 patent that will streamline triable issues, or eliminate the need for trial altogether, a stay of this matter is appropriate. Gould, 705 F.2d at 1342. IV. MercExchange’s Renewed Motion for a Permanent Injunction Following the United States Supreme Court’s decision in eBay Inc. v. MercExchange, L.L.C., — U.S.-, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006), this court is required to apply “the four-factor test historically employed by courts of equity” and determine in the first instance whether a permanent injunction shall issue following the affirmed jury verdict concluding that eBay willfully infringed Merc-Exchange’s '265 patent. Id. at 1838. Applying such test, there are no special assumptions unique to a patent case; rather, “the decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts” and in all cases “such discretion must be exercised consistent with traditional principles of equity.” Id. at 1841. Thus, in order to obtain a permanent injunction in any case, “[a] plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” Id. at 1839 (emphasis added). This court denied plaintiffs original motion for a permanent injunction based upon application of such four-factor test, MercExchange, L.L.C. v. eBay, Inc., 275 F.Supp.2d 695 (E.D.Va.2003); however, the Supreme Court, determined that this court’s prior analysis could be read to bar injunctive relief “in a broad swath of cases,” and instructed that the matter be returned to this court to “apply the framework in the first instance.” eBay, 126 S.Ct. at 1840-41. Although, as set forth below, this court reaches the same ultimate conclusion as its prior opinion, the analysis, conducted in the first instance, is guided by the direction provided by the Supreme Court as well as the facts specific to this case. A. Irreparable Harm Presumption Prior to applying the facts of the instant matter to the four-factor test, the court must consider whether a presumption of irreparable harm upon a finding of validity and infringement survives the Supreme Court’s opinion remanding this case. Although the parties did not perform extensive briefing on such issue and the Supreme Court’s opinion does not squarely address it, a review of relevant caselaw, as well as the language of the Supreme Court’s decision, supports defendants’ position that such presumption no longer exists. See, z4 Technologies, Inc. v. Microsoft Corp., 434 F.Supp.2d 437, 440 (E.D.Tex.2006) (concluding that the language in the Supreme Court’s eBay opinion “does not imply a presumption, but places the burden of proving irreparable injury on the plaintiff’); Paice LLC v. Toyota Motor Corp., No. 2:04-CV-211-DF, 2006 WL 2385139, at *4 (E.D.Tex. Aug.16, 2006) (unpublished) (“The eBay decision demonstrates that no presumption of irreparable harm should automatically follow from a finding of infringement.”); eBay, 126 S.Ct. at 1840 (rejecting the application of categorical rules as inconsistent with traditional equitable principles); see also Amoco Production Co. v. Village of Gambell, AK, 480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (rejecting the Ninth Circuit’s application of a presumption of irreparable harm in a lawsuit seeking an injunction based upon the defendant’s failure to evaluate the environmental impact of selling oil and gas leases on federal lands because such presumption is “contrary to traditional equitable principles”); but cf. Christiana Indus. v. Empire Electronics, Inc., 443 F.Supp.2d 870, 884 (E.D.Mich.2006) (rejecting the defendant’s claim that “the Supreme Court eliminated the presumption of irreparable harm for preliminary injunctions upon a showing of validity and infringement”) (emphasis added). Although a presumption of irreparable harm is inconsistent with the Supreme Court’s instruction that traditional equitable principles require the plaintiff to demonstrate that it has suffered an irreparable injury, the court is not blind to the reality that the nature of the right protected by a patent, the right to exclude, will frequently result in a plaintiff successfully establishing irreparable harm in the wake of establishing validity and infringement. See eBay, 126 S.Ct. at 1841 (Roberts, C.J., concurring) (indicating that it is unsurprising that injunctive relief has been granted in the “vast majority” of patent cases since the early 19th century “given the difficulty of protecting a right to exclude through monetary remedies”). However, putting the onus on the plaintiff to prove irreparable harm is much more than an idle exercise as numerous case specific facts may weigh against the issuance of an injunction notwithstanding the nature of the patent holder’s right. See id. at 1841 (unanimously recognizing that the Federal Circuit erred in its categorical grant of injunctive relief upon a finding of validity and infringement). Thus, even though an affirmed jury verdict establishes that eBay is a willful infringer of plaintiffs '265 patent, a permanent injunction shall only issue if plaintiff carries its burden of establishing that, based on traditional equitable principles, the case specific facts warrant entry of an injunction. B. The Four-Factor Test 1. Irreparable Harm Applying the case specific facts to the first factor of the four-factor test, the court concludes that MercExchange has not established irreparable harm and that the first factor weighs against entry of an injunction. Such conclusion was far from obvious based upon the unique facts of this case as well as the litigants’ well-crafted arguments; however, even in light of MercExchange’s post-trial relationship with uBid, the court concludes both that MercExchange has acted inconsistently with defending its right to exclude and that it has failed to establish why its harm is irreparable. The court recognizes that upon cursory review, MercExchange’s post-trial relationship with uBid suggests that MercExchange may have suffered an irreparable injury; however, a careful examination of the facts surrounding such relationship reveals that such harm is com-pensable in monetary damages as MercEx-change has continued to follow a consistent course of licensing its patents to market participants and is plainly willing to accept royalties for future utilization of the patent. Additionally, the evidence indicates that MercExchange’s post-remand relationship with uBid failed for reasons other than the lack of an injunction and the timing of such relationship suggests that it was just as likely a litigation tactic as it was a legitimate attempt to develop Merc-Exchange’s '265 patent. Furthermore, not only has MercExchange consistently sought royalties from internet companies interested in utilizing its patents, including eBay, and publicly announced its willingness to license its patents to eBay before, during, and after trial, but it failed to establish that an injunction is necessary to protect its brand name, market share, reputation, goodwill, or future research and development opportunities. In contrast to such factors weighing in eBay’s favor, eBay’s status as an apparent market monopolist that, at least in the past, was a willful infringer of MercExchange’s '265 patent weighs in MercExchange’s favor; however, eBay’s market dominance does not alter the reality that MercExchange has not set forth sufficient proof to establish that its harm is irreparable. See Praxair, Inc. v. ATMI, Inc., 479 F.Supp.2d 440, 443-44 (D.Del.2007) (recognizing that although the “quantum of evidence required [to prove irreparable harm] is relatively unclear,” the plaintiff had not met its burden by merely asserting that it directly competes with the infringer and will “likely lose additional market share, profits, and goodwill”). Accordingly, the evidence before the court reveals that eBay’s infringement of the '265 patent resulted in substantial harm to MercEx-change; however, MercExchange has failed to carry its burden to establish that such harm is irreparable and that money damages are an insufficient remedy. See Paice, 2006 WL 2385139, at *5 n. 3 (recognizing that although “monetary relief could result in lower licensing rates than Plaintiff would desire,” whereas an injunction would give plaintiff “a more impressive bargaining tool,” such considerations “do [] not replace the four-factor test that must be satisfied for equitable relief’). MercExchange has followed a consistent course of seeking to maximize the money it can obtain from licensing its patents to market participants allegedly utilizing such patents; a substantial damages award against eBay, apparently the primary in-fringer on MercExchange’s '265 patent, will accomplish precisely such goal. The court’s determination that MercEx-change fails to establish irreparable harm is based upon the facts specific to this case and not broad classifications or categorical exclusions of certain types of patent holders. Turning to such facts, first, as noted above and in this court’s previous order denying an injunction, prior to trial Merc-Exchange exhibited a “lack of commercial activity in practicing the [relevant] patents” and instead exhibited a “willingness to license its patents.” Mercexchange, 275 F.Supp.2d at 712. After being updated on post-trial developments, it is plain to the court that MercExchange failed to deviate from its prior course of conduct in the wake of the favorable jury verdict as, approximately one year after trial, MercEx-change once again exhibited its willingness to freely license its patents, providing uBid a non-exclusive license to MercExchange’s entire patent portfolio, including both current and pending patents. In return for such non-exclusive license, Merc-Exchange received a flat fee of $150,000 and a potential future royalty stream tied to uBid’s gross market sales; uBid’s current gross market sales fail to approach the threshold required for royalty payments. Although MercExchange’s consistent practice of licensing, rather than developing, its patents in no way acts to exclude MercExchange, or similarly situated patent holders, from the opportunity to obtain a permanent injunction, it is one factor that this court must consider in weighing the equities. Such factor is considered not because the court endeavors to “writ[e] on an entirely clean slate,” eBay, 126 S.Ct. at 1841 (Roberts, C.J., concurring); but rather, taking a page from history, it is apparent that the Federal Circuit has repeatedly recognized that “the lack of commercial activity by the patentee is a significant factor in the calculus ” of whether the patentee will suffer irreparable harm absent an injunction. High Tech Medical Instrumentation, Inc. v. New Image Indus., Inc., 49 F.3d 1551, 1556 (Fed.Cir.1995) (emphasis added); see Polymer Technologies, Inc. v. Bridwell, 103 F.3d 970, 974 (Fed.Cir.1996) (recognizing three types of evidence sufficient to counter a presumption of irreparable harm including evidence that the movants “have engaged in a pattern of granting licenses under the patent”); T.J. Smith and Nephew Ltd. v. Consolidated Medical Equip., Inc., 821 F.2d 646, 648 (Fed.Cir.1987) (recognizing that an established history of granting licenses is “incompatible with ... the right to exclude”). Likewise, although the Supreme Court rejected analysis implying that a categorical exclusion prevented injunctions from issuing if a patent holder did not practice its patents and existed only to license them, the Court in no way suggested that such facts could not be considered as part of the calculus in weighing the traditional equitable factors. eBay, 126 S.Ct. at 1840. Thus, MercExchange’s lack of commercial activity and pattern of granting licenses to market participants that were knowingly or unwittingly practicing its patents does not eliminate Mer-cExchange’s ability to establish irreparable harm, but it weighs against the need for an equitable remedy as it evidences MercExchange’s willingness to forgo its right to exclude in return for money. See, e.g., Ina Steiner, eBay-Contested MercEx-change Patents are on the Block, Auction-bytes-NewsFlash, May 30, 2003, http:// www.auctionbytes.com/cab/abn/y03/m05/i 30/s01 (hereinafter “Steiner, Patents are on the Block”) (“[I]t is not our goal to enforce these patents, we want to sell off our Intellectual Property rights.”) (quoting Thomas Woolston, MercExchange’s president and inventor of the '265 patent); see also Polymer Tech., 103 F.3d at 975 (Fed.Cir.1996) (indicating that irreparable harm is clearly negated by a finding that “the patentee was willing to forgo its right to exclude by licensing the patent”). Tellingly, here, even as MercExchange attempts to convince the court of its desire to defend its right to exclude, MercExchange’s website appears to offer MercExchange’s technology for sale to internet businesses. Returning to the Supreme Court’s opinion remanding this case, the Court recognized the utility of self-made inventors or university researchers opting to enter into licensing agreements in lieu of raising what at times may be a prohibitive amount of financing necessary to develop their products themselves. This court recognizes and concurs with such utility and further recognizes that a patent holder’s decision to establish a licensing program does not negate the possibility that such patent holder will suffer damage to its goodwill, reputation, research and development opportunities, or ability to bring a unique product to market. However, the majority of the utility achieved by such licensing programs results from the fact that patent holders are still seeking to develop their patent, they are just opting to do so in partnership with others. In contrast, here, MercExchange’s modus op-erandi appears to be to seek out companies that are already market participants that are infringing, or potentially infringing, on MercExchange’s patents and negotiate to maximize the value of a license, entered into as a settlement to, or avoidance of, litigation. Such consistent course of litigating or threatening litigation to obtain money damages by a company of two employees, the inventor of the patents a former patent attorney, indicates that Merc-Exchange has utilized its patents as a sword to extract money rather than as a shield to protect its right to exclude or its market-share, reputation, goodwill, or name recognition, as MercExchange appears to possess none of these. It is therefore unsurprising that, in light of eBay’s dominant position in the online auction market, MercExchange has both initiated litigation against eBay and, as discussed below, exhibited its willingness to license its patents to eBay if the total dollars negotiated are acceptable to Merc-Exchange. The court therefore recognizes factual distinctions between MereEx-change and the typical small inventor or researcher who opts to utilize outside licensees to help develop its patents. Second, and likewise differentiating MercExchange from patent holders who do not practice their patents but nonetheless seek to defend their right to exclude, MercExchange’s public and private actions indicate its desire to obtain royalties from eBay. Turning to the public actions, although MercExchange utilized the courts to redress eBay’s infringement, MercEx-change and its attorneys, both before and subsequent to eBay being adjudicated a willful infringer, publicly expressed Merc-Exchange’s willingness to license its patents to eBay. See, e.g., Steiner, Patents are on the Block (“I always thought the eBay community was the natural home for the patents.”) (quoting Thomas Woolston); Troy Wolverton, Patent Suit Could Sting eBay, CNET News.com, Sept. 5, 2002, http://news. com. com/2100-1017-956688. html (“We are seeking reasonable royalties as permitted under the patent laws. It’s not our goal to put eBay out of business. It’s our goal to provide just compensation for the patent owner.”) (quoting MercExchange’s counsel); see also Odetics, Inc. v. Storage Technology Corp., 14 F.Supp.2d 785, 797 (E.D.Va.1998) (rejecting one of the defendant’s arguments against entry of an injunction as inconsistent with a press release issued by such defendant the same day the jury returned a verdict). Considering the private actions, as recognized by both this court and the United States Supreme Court, prior to commencing the instant litigation, Merc-Exchange and eBay entered into negotiations regarding eBay’s licensing/acquisition of MercExchange’s patent portfolio. See eBay, 126 S.Ct. at 1839 (“MercExchange sought to license its patent to eBay and Half.com, as it had previously done with other companies, but the parties failed to reach an agreement.”). Although the parties dispute the content of such negotiations as well as the reason for their breakdown, the fact that they occurred lends further support to Mr. Woolston’s claim that he thought eBay was the “natural home” for the relevant patents and detracts from MercExchange’s present claim that it will be irreparably harmed if eBay is not enjoined from practicing the '265 patent. Again endeavoring to draw from prior precedent rather than writing on a clean slate, the Federal Circuit has held that offering a license to the defendant makes it “clear that [a plaintiff] is willing to forgo its patent rights for compensation ... [and] that any injury suffered by [such plaintiff] would be compensable in damages assessed as part of the final judgment in the case.” High Tech Medical, 49 F.3d at 1557. Recognizing the Supreme Court’s admonishment to avoid categorical rules, although this court does not conclude that offering a license to the defendant automatically precludes plaintiff from thereafter obtaining an injunction, such fact plainly weighs against a finding of irreparable harm as it illustrates the patent holder’s willingness to forgo his right to exclude. Third, although MercExchange filed suit against eBay in September of 2001, alleging that both eBay’s online auctions and eBay’s fixed price buy-it-now option were infringing upon patents held by MercEx-change, MercExchange never sought a preliminary injunction against eBay. Such factor, similar to those discussed above and below, is plainly not dispositive; however, on these facts, it is yet another factor in the calculus indicating both that Merc-Exchange is not being irreparably harmed by eBay’s infringement and that money damages are adequate. See PGBA, LLC v. United States, 389 F.3d 1219, 1229-31 (Fed.Cir.2004) (finding no error of law when the lower court considered, as one of the factors weighing against injunctive relief, the fact that plaintiff failed to pursue a preliminary injunction); T.J. Smith, 821 F.2d at 648 (recognizing that delay in seeking a preliminary injunction is incompatible with a patent holder’s right to exclude). Although numerous factors can impact a plaintiffs decision to forgo seeking a preliminary injunction and such injunction has different prerequisites and serves different purposes than a permanent injunction, on these facts, MercEx-change’s decision not to seek a preliminary injunction is consistent with its strategy of pursuing market participants to exact licenses for infringement or alleged infringement. Plaintiffs decision not to pursue a preliminary injunction is likewise consistent with plaintiffs stated desire of obtaining reasonable royalties both because: (1) true to its word, MercExchange did not seek to shut down eBay by seeking a preliminary injunction; and (2) enjoining eBay from conducting infringing sales during the pendency of litigation would reduce the royalties recovered by MercExchange both immediately and thereafter. Thus, numerous facts, including MercExchange’s own statements, indicate that here, Merc-Exchange’s failure to seek a preliminary injunction was impacted by its willingness to accept a royalty for its patents as if MercExchange’s true goal was to defend its right to exclude, it would likely have at least attempted to stop eBay, the purported “market monopolist,” from further improving its foothold on the market during the lengthy litigation period. Fourth, the '265 patent is both a business method patent and a patent which appears to rely upon a unique combination of non-unique elements present in prior art, and although such patent is presently valid and enforceable, the nature of the patent causes the court pause because, as previously recognized by this court, “there is a growing concern over the issuance of business-method patents which forced the PTO to implement a second level review policy.” Mercexchange, 275 F.Supp.2d at 713. Although patent holders of valid business method patents, like any other patent holders, are certainly able to obtain an injunction if the application of the case specific facts to the four-factor test reveals that equitable relief is warranted, the nature of such patents may be considered by the court when balancing the equities. See eBay, 126 S.Ct. at 1842 (Kennedy, J., concurring) (recognizing both that “trial courts should bear in mind ... the nature of the patent being enforced” and that the “potential vagueness and suspect validity of some [business method patents] may affect the calculus under the four-factor test”). Here, not only was the '265 patent never subject to a second level review, but the PTO twice rejected all claims of the '265 patent; when crafting prospective equitable relief the court cannot ignore such realities. Additionally, although in eBay only a four member panel recognized the “suspect validity” of some business method patents, in KSR Int'l. Co. v. Teleflex Inc., the Supreme Court unanimously highlighted “the need for caution in granting a patent based on the combination of elements found in the prior art” because such a combination “is likely to be obvious when it does no more than yield predictable results.” KSR, — U.S. -, -, 127 S.Ct. 1727, 1739, 167 L.Ed.2d 705 (2007). The KSR opinion rejected the rigid manner in which the Federal Circuit applies the “teaching, suggestion, or motivation” (“TSM”) test for obviousness, explaining: The flaws in the analysis of the Court of Appeals relate for the most part to the court’s narrow conception of the obviousness inquiry reflected in its application of the TSM test. In determining whether the subject matter of a patent claim is obvious, neither the particular motivation nor the avowed purpose of the patentee controls. What matters is the objective reach of the claim. If the claim extends to what is obvious, it is invalid under § 103. One of the ways in which a patent’s subject matter can be proved obvious is by noting that there existed at the time of invention a known problem for which there was an obvious solution encompassed by the patent’s claims. Id. at 1741-42. Thus, “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill.” Id. at 1740. Applied to the instant facts, the KSR opinion reduces the likelihood that the '265 patent will survive reexamination as the PTO’s prior non-final actions were issued prior to KSR, which plainly raised the bar as to what qualifies as non-obvious. Accordingly, the nature of the '265 patent, as both a business method patent and a combination of non-unique elements yielding predictable results, is an additional factor that weighs against a finding of irreparable harm as if the '265 patent was improvidently granted, MercExchange will not suffer any harm from eBay’s use of the buy-it-now functionality. In contrast to the discussion above, this court has recognized that MercExchange’s relationship with uBid had the potential to provide significant evidence of irreparable harm; such possibility was one of the primary justifications for reopening the record. However, after affording the parties the opportunity to perform additional discovery, it became evident that MercEx-change is unable to establish irreparable harm based upon its post-trial relationship with uBid. First, the non-exclusive license granted to uBid in 2004 indicates an adherence to, rather than a departure from, the status quo, as MercExchange willingly licensed its entire patent portfolio when approached by a market participant and potential infringer even after obtaining a favorable jury verdict. Second, uBid admits that prior to reaching such agreement with MercExchange, uBid did not even evaluate the validity of the patents or how they impacted uBid, but instead chose to enter into the non-exclusive license agreement to avoid the expense of litigation; nowhere in the exhibits reflecting the 2004 negotiations was there any mention of a partnership or exclusive license (eBay Suppl. Brief Ex.5). Similarly, the court is not persuaded that the recent unsuccessful negotiations between uBid and MercExchange regarding an exclusive license significantly alter the previous landscape as MercExchange freely admits that such concept was developed by uBid, suggesting that MercEx-change did not deviate from its prior course of conduct of seeking royalties for its patents under the threat of litigation. Furthermore, such proposal does not appear to have proceeded very far as uBid never sought a legal evaluation as to whether MercExchange’s patents were valid or how they impacted uBid even though uBid was considering selling a 25% equity stake in its company in exchange for an exclusive license to such patents. Likewise, uBid portrayed such negotiations as “part of a process when one vets out concepts” and indicated that in “early stages of discussion” uBid faced such a high level of uncertainty that the negotiations were terminated (Merc. Suppl. Brief Ex.2, at 226). In addition to the fact that the proposed exclusive license appears to have failed at the concept stage, uBid recognizes that such failure resulted not only from the lack of an injunction against eBay, but also from uncertainly involving the PTO reexamination as well as questions surrounding whether eBay successfully designed around the '265 patent. See Paice, 2006 WL 2385139 at *5 (“As for Plaintiffs allegations of irreparable harm in the form of a failed licensing program, Plaintiff has not demonstrated Defendants’ infringement is to blame for this failure.”). As explained by uBid, “there is really not much one could build around [such] concept” until it is determined whether or not eBay continues to infringe and uBid would “have Jack” relative to what it sold off 25% of its company for if the PTO invalidated the patents (Merc. Suppl. Brief Ex.2, at 212-13, 225). Furthermore, the court recognizes the suspicious timing of such negotiations as they appear to have began within days of the Supreme Court’s remand for an application of the four-factor test in the first instance; such remand occurred three years after MercExchange prevailed at trial. The suspicious nature of such timing is supported by emails suggesting that Merc-Exchange acted with an eye toward the upcoming injunction dispute; for example, Robert Tomlinson, uBid’s president, forwarded an email containing part of the July 2006 negotiations between uBid and MercExchange to Timothy Takesue, another uBid executive, noting: “Follow-up to my correspondence ... appears they really want to do a deal to support their position” (eBay Suppl. Brief Ex.2). Tom-linson later admitted during a deposition that such statement refers to MercEx-change’s “position” in the litigation with eBay (eBay Suppl. Brief Ex.3). Similarly, in September of 2006, Tom Woolston, MercExchange’s president, sent an email seeking information related to setting up “a new Merc web site that also [sic] dual lists ubid content” (eBay Suppl. Brief Ex.4). The reply to such email indicates that such a website could likely be constructed, but that Woolston should “do some upfront assessment of will this model work and can it make $. Otherwise, this is another make Friedman semi happy and piss away some $” (eBay Suppl. Brief Ex.4) (emphasis added). Accordingly, the court recognizes that MercExchange’s negotiations with uBid appear just as likely to be an effort to placate the court as they do an effort to develop the '265 patent. In conjunction with MercEx-change’s attempt to spotlight its relationship with uBid, plaintiff argues that violation of the right to exclude and the potential loss of market share constitute irreparable harm. In contrast to such assertion, in its decision remanding the injunction calculus to this court, the Supreme Court rejected the Federal Circuit’s contention that the “statutory right to exclude alone justifies [a] general rule in favor of permanent injunctive relief.” eBay, 126 S.Ct. at 1840; see Smith & Nephew, Inc. v. Synthes (U.S.A.), 466 F.Supp.2d 978, 983-84 (W.D.Tenn.2006) (“A violation of the right to exclude does not compel the conclusion that a patent holder cannot be adequately compensated by remedies at law, such as monetary damages.”). Similarly, district court decisions subsequent to the Supreme Court’s opinion have rejected the broad classification that direct competitors always suffer irreparable harm from infringement whereas non-competitors never suffer irreparable harm. See Commonwealth Scientific and Indus. Research Org. v. Buffalo Tech. Inc., 492 F.Supp.2d 600, 602-04 (E.D.Tex.2007) (hereinafter CSI-RO) (rejecting the defendant’s claim that “since eBay district courts have typically granted injunctive relief in favor of competitors but denied injunctive relief to non-competing licensors”); Praxair, 479 F.Supp.2d at 444 (denying an injunction to a direct competitor because the plaintiff failed to carry its burden to “iterate specific reasons why [the defendant’s] infringement can not [sic] be compensated for with a money award”). Although the “quantum of evidence” required to prove irreparable harm remains unclear, id. at 443-44, the potential for loss of market share is insufficient to establish the same; otherwise, a scenario would never arise where an injunction did not issue. See Illinois Tool Works, Inc. v. Grip-Pak, Inc., 906 F.2d 679, 683 (Fed.Cir.1990) (rejecting the plaintiffs claim that the potential for lost sales alone demonstrates irreparable harm as “acceptance of that position would require a finding of irreparable harm to every manufacturer/patentee, regardless of circumstances”). Accordingly, as mandated by the Supreme Court, MercExchange carries the burden to establish how and why its damages are irreparable, and considering the facts unique to this matter, it is plain that MercExchange does not iterate specific reasons why eBay’s infringement cannot be adequately compensated with money. First, MercEx-change does not directly compete with eBay, has not identified market share lost to eBay, and was not precluded from entering the online auction market due to eBay’s infringement as eBay’s success dates back prior to its infringement. Second, even after a favorable jury verdict, MercExchange freely chose to license its patents to a market participant in exchange for a structured royalty that placed a dollar value on the use of MercExchange’s entire patent portfolio. As a matter of comparison, in TiVo Inc. v. EchoStar Communications Corp., 446 F.Supp.2d 664, 669-70 (E.D.Tex.2006), a case where an injunction was granted, not only were the plaintiff and defendant direct competitors, but the market at issue was still in its infancy, a “key consideration” in the injunction calculus as the court recognized that the plaintiff “will not have the same opportunity to capture [market share] once the market matures.” Id. at 669-70. In contrast to the plaintiff in TiVo affirmatively establishing why lost market share was so critical, in Praxair, the district court denied the plaintiffs motion for an injunction notwithstanding the fact that the litigants were direct competitors because the plaintiff “ha[d] not provided or described any specific sales or market data to assist the court, nor ha[d] it identified precisely what market share, revenues, and customers [it] has lost to [the defendant].” Praxair, 479 F.Supp.2d at 444. The Praxair court further explained that the plaintiffs “desire to become a monopoly supplier in its product’s market is hardly unique, and is not conclusive evidence of any fact