Full opinion text
MEMORANDUM OPINION AND ORDER HART, District Judge. In its Second Amended Complaint, plaintiff United States Gypsum Company (“USG”) alleges that defendant LaFarge North America, Inc. (“LNA”) has infringed certain claims of USG’s U.S. Patent No. 5,683,635 related to producing foamed gypsum wallboard. Defendant LaFarge, S.A. (“LSA”), a French corporation that owns a majority share of LNA, is also alleged to be liable for patent infringement. Also named as defendants are ten individuals (collectively, the “Individual Defendants”) who are current or former employees of LNA and who worked for USG prior to being employed by LNA. The Individual Defendants are Daniel Myslinski, David Downs, John Yockey, Tom Huffer, Charles Jett, Ed Green, William Hartford, Walter Weldon, Kurt Kruzshak, and Sidney Spear. In addition to the federal patent claims against the Corporate Defendants, the Corporate Defendants and Spear are alleged to have violated two federal statutes, the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701-12, and the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030. All other claims are based on state law. All defendants are alleged to be liable for misappropriation of USG trade secrets and conversion. The Individual Defendants are all also alleged to be liable for breach of fiduciary duty, and some are alleged to be liable for breach of contract. The Corporate Defendants are also alleged to be liable for unfair competition, tortious interference with contract, inducement of breach of fiduciary duty, and unjust enrichment. LNA brings a five-count Counterclaim against USG. Each count seeks declaratory relief only. The respective Counterclaim counts seek declarations that: (I) LNA did not infringe the '635 patent; (II) claims of the '635 patent are invalid; (III) the '635 patent is unenforceable because of inequitable conduct; (IV) USG cannot claim infringement based on the doctrine of equivalents in that it would cause the claims to read on prior art; and (V) positions the patentee took before the United States Patent and Trademark Office (“PTO”) estop USG from making certain contentions regarding the '635 patent. Each side has engaged in extensive discovery, all of which is complete. Presently pending are cross motions for summary judgment. Defendants move for summary judgment dismissing all counts of the Second Amended Complaint. To the extent any claims against them are not dismissed on other grounds, LSA and four Individual Defendants (Hartford, Huffer, Myslinski, and Jett) seek dismissal of the claims against them on the ground that there is no personal jurisdiction over them in this court. LNA also moves for summary judgment on Counts I and III of its Counterclaim. USG moves for summary judgment dismissing the Corporate Defendants’ patent infringement affirmative defense of inequitable conduct, as well as Count III of LNA’s Counterclaim which also raises inequitable conduct. USG also moves for summary judgment that there is personal jurisdiction over LSA and the four Individual Defendants. In this case, Federal Circuit law controls as to substantive patent issues. As to procedural issues such as summary judgment procedure, however, the Federal Circuit holds that a district court should follow the law of the circuit in which it is located. Applied Medical Resources Corp. v. United States Surgical Corp., 435 F.3d 1356, 1364 (Fed.Cir.2006); Arthur A. Collins, Inc. v. Northern Telecom Ltd., 216 F.3d 1042, 1047-48 (Fed.Cir.2000); Vivid Technologies, Inc. v. American Science & Engineering, Inc., 200 F.3d 795, 807 (Fed. Cir.1999); Massey v. Del Laboratories, Inc., 118 F.3d 1568, 1572 (Fed.Cir.1997); Kim v. Conagra Foods, Inc., 2004 WL 626140 *1 n. 2 (N.D.Ill. March 26, 2004). Seventh Circuit law also applies to issues such as the admissibility of evidence, Micro Chemical, Inc. v. Lextron, Inc., 317 F.3d 1387, 1390-91 (Fed.Cir.2003); general credibility issues, Applied Medical, 435 F.3d at 1364; and the sufficiency of evidence supporting non-patent claims, Duro-Last, Inc. v. Custom Seal, Inc., 321 F.3d 1098, 1106 (Fed.Cir.2003). As to each side’s motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmov-ant. Eisencorp, Inc. v. Rocky Mountain Radar, Inc., 398 F.3d 962, 965 (7th Cir. 2005); Estate of Moreland v. Dieter, 395 F.3d 747, 758 (7th Cir.), cert. denied, 545 U.S. 1115, 125 S.Ct. 2915, 162 L.Ed.2d 296 (2005); Hall v. Bennett, 379 F.3d 462, 464 (7th Cir.2004); Hudson v. Chicago Transit Authority, 375 F.3d 552, 558 (7th Cir. 2004). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir.2001); Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999). The nonmovant, however, must make a showing sufficient to establish any essential element for which he or it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Binz v. Brandt Construction Co., 301 F.3d 529, 532 (7th Cir.2002); Traylor v. Brown, 295 F.3d 783, 790 (7th Cir.2002). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See Yasak v. Retirement Board of Policemen’s Annuity & Benefit Fund of Chicago, 357 F.3d 677, 679 (7th Cir.2004); NLFC Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 236 (7th Cir.), cert. denied, 515 U.S. 1104, 115 S.Ct. 2249, 132 L.Ed.2d 257 (1995); Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir.1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 109 S.Ct. 137, 102 L.Ed.2d 110 (1988); Shyman v. UNUM Life Insurance Co. of America, 2004 WL 609280 *2 (N.D.Ill. March 25, 2004), aff'd, 427 F.3d 452 (7th Cir.2005). As the Seventh Circuit has summarized: The party moving for summary judgment carries the initial burden of production to identify “those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Logan v. Commercial Union Ins. Co., 96 F.3d 971, 978 (7th Cir.1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citation and internal quotation omitted)). The moving party may discharge this burden by “ ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548, 91 L.Ed.2d 265. Once the moving party satisfies this burden, the nonmovant must “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). “The nonmovant must do more, however, than demonstrate some factual disagreement between the parties; the issue must be ‘material.’ ” Logan, 96 F.3d at 978. “Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute.” Id. (citation omitted). In determining whether the nonmovant has identified a “material” issue of fact for trial, we are guided by the applicable substantive law; “[o]nly disputes that could affect the outcome of the suit under governing law will properly preclude the entry of summary judgment.” McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 298 (7th Cir.1996) (citation omitted). Furthermore, a factual dispute is “genuine” for summary judgment purposes only when there is “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Hence, a “metaphysical doubt” regarding the existence of a genuine fact issue is not enough to stave off summary judgment, and “the nonmovant fails to demonstrate a genuine issue for trial “where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party ----’ ” Logan, 96 F.3d at 978 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Outlaw, 259 F.3d at 837. Unless otherwise indicated, the facts set forth below resolve all factual disputes and draw all reasonable inferences in favor of USG. Both sides move for summary judgment regarding inequitable conduct and personal jurisdiction. On those issues, it will be indicated whether particular facts are undisputed and therefore applicable to each side’s motion or genuinely in dispute and therefore different factual assumptions apply to each side’s motion. Defendants contend that USG’s Local Rule 56.1 statements are so riddled with insufficient support or improper argument that they should be stricken in their entirety and defendants’ factual statements deemed admitted. USG’s factual submissions will not be stricken. To the extent any factual assertion in a Local Rule 56.1 statement is not properly and adequately supported, that particular factual assertion will not be taken as true. This will be done on a paragraph-by-paragraph basis, not by a wholesale striking of either side’s factual statements. Cf. Dominion Nutrition, Inc. v. Cesca, 2006 WL 560580 *4-5 (N.D.Ill. March 2, 2006); Ogborn v. United Food & Commercial Workers, Local No. 881, 2000 WL 1409855 *2-3 & nn. 2-4 (N.D. Ill. Sept 25, 2000), aff'd, 305 F.3d 763 (7th Cir.2002). I. PATENT ISSUES A. Patent Infringement As to the infringement issues raised on summary judgment, the parties agree as to many of the pertinent facts. Their primary disagreements concern the construction of certain terms of the pertinent patent claims. USG contends claims 25, 36, and 37 of its '635 patent were infringed by a foam injection method of manufacturing gypsum wallboard that was used at a number of LNA plants (the “LNA Method”). Claim 37 is dependent on claim 36. The parties agree that, for purposes of summary judgment, it is unnecessary to separately consider Claim 37. The two claims at issue read as follows (emphasis added): 25. A method of preparing a foamed gypsum board comprising, continuously and concurrently: inserting calcined gypsum and water into a mixing chamber through one or more inlets; agitating the contents of the mixing chamber to form an aqueous dispersion of the calcined gypsum; discharging the contents of the mixing chamber through a discharge outlet into a discharge conduit; inserting an aqueous foam through an inlet into the discharge conduit, such that the foam is mildly agitated to thereby minimize destruction of the foam while uniformly dispersing the foam in the aqueous gypsum dispersion; discharging the resultant dispersion from the discharge conduit and depositing the dispersion onto a moving cover sheet: applying a second cover sheet over the deposited dispersion; and allowing the resultant assembly to set and dry such that the calcined gypsum forms set gypsum having voids uniformly dispersed therein. :|! * * 36. A method of preparing a foamed gypsum board having a hard edge or edges, comprising, continuously and concurrently: mixing and agitating calcined gypsum and water to form an aqueous dispersion of the calcined gypsum; dividing the aqueous ■ dispersion to form a core stream of the aqueous dispersion and one or more edge streams of the aqueous dispersion; mixing an aqueous foam into the core stream, such that the foam is mildly agitated to thereby minimize destruction of the foam while uniformly dispersing the foam in the aqueous dispersion; depositing the core stream onto a moving cover sheet; depositing the edge stream or streams onto the cover sheet contiguous to one or both edges of the deposited core stream; applying a second cover sheet over the deposited streams; and allowing the resultant assembly to set and dry such that the calcined gypsum forms set gypsum and the set gypsum in the deposited core stream has voids uniformly dispersed therein. As to both claims, defendants contend the LNA Method did not infringe because the LNA Method involved turbulent and violent agitation of the foam, not a method in which “the foam is mildly agitated.” As to Claim 25, defendants also contend the LNA Method does not include “voids uniformly dispersed” across the “resultant assembly” because LNA produced boards with hard edges, with the voids only being uniformly dispersed within the core stream and not the entire assembly, that is, not the hard edges as well. As to claim 36, defendants contend the LNA Method also does not infringe because claim 36 provides that the core stream is deposited prior to the edge stream, whereas the LNA Method deposits the edge stream prior to the core stream. Defendants additionally contend the LNA Method does not infringe claim 36 because the LNA Method does not deposit the edge stream contiguous to the core stream. Instead, the edge stream is deposited first and the core stream is subsequently deposited and then spread out to meet the edge stream. The basic process of manufacturing gypsum wallboard begins with the delivery of natural or synthetic gypsum to a plant. The gypsum is ground and then subjected to calcining (a method for removing water), which results in a fine powder called “stucco.” The stucco is combined with water and other additives (such as fiberglass, starch, and/or foam) and mixed in a mechanical mixer to create “slurry.” The slurry travels through a tube-like structure called a “boot” and is deposited in the center of a continuous sheet of paper that is traveling on a conveyor system. The paper is commonly called “face paper” and will be one side of a finished panel of wallboard. As it moves along the plant line, the slurry spreads out along the width of the paper. A second continuous sheet of paper (the “back paper”) comes down from above. In the claims at issue, the face paper and back paper are referred to as “cover sheets.” The two sheets of paper come together, essentially creating a sandwich of slurry between two sheets of paper. This sandwich passes through a forming station, where it is shaped to the desired thickness and the paper is folded over the side edges. The formed board continues to move down the line while the slurry “sets.” Eventually it reaches the point where it is cut and the board sections are placed into a huge dryer. After drying, the sections are moved, lifted, and “booked” together, that is placed face-to-face with another section. The sections are eventually cut into saleable lengths, bundled, placed on pallets, and transferred to a warehouse to await shipping. One common additive to the stucco is soap, which is used to create an aqueous foam. This produces air bubbles in the wallboard. If the air bubbles do not escape before hardening, voids are set in the gypsum product which lowers the density of the product. Foamed wallboard is lighter than unfoamed wallboard and therefore easier to handle for installation. A disadvantage of foamed wallboard is that it is more fragile than unfoamed wallboard and subject to crumbling when a nail is driven in it. Another disadvantage is that a foamed core is not as good at adhering to the paper sheets. The. first problem is often addressed by using unfoamed slurry to create “hard edges.” The second problem is often addressed by placing a thin layer of higher density or unfoamed slurry on the paper sheet. The process of applying this thin layer on the paper using a roller is known as “skim coating.” The LNA Method used at a number of LNA’s United States plants combines stucco, water, and a small amount of foam (and sometimes other additives) in a main mixer called a pin mixer. Because little foam is used, this creates a “dense slurry.” Dense slurry exits the pin mixer at two points. At the rear (in relation to the flow of the line), dense slurry exits through an extractor and is used for the hard edges and skim coat. Toward the front, dense slurry exits into a “gate” where it is mixed with more foam to produce a less-dense slurry (“foamed slurry”) used for the core section of the wallboard. The dense slurry that exits through the extractor port is carried via a hose to a point on the face paper that is upstream of both the mixer and the skim coat roller. The hose deposits the dense slurry on the face sheet which carries it forward to the skim coat roller. The dense slurry pools at the skim coat roller, which leaves a thin coating at the core of the paper, but allows thicker amounts to wrap around the edges of the roller forming hard edge streams. At the front end, dense slurry enters into a gate where it is mixed with foam that is injected into the gate through a hose. This mixture then travels to a canister before being deposited onto the face sheet as the core stream. Each side’s expert offers an opinion as to how the forces within the canister act together to agitate the mixture. The canister does not have its own power source. Any agitation that occurs within the canister results from the kinetic forces of the flow from the mixer and the injection of foam, as affected by the pressure created by the limited opening at the end of the canister. The end of the canister has a restricting ring called a “donut.” There is no dispute that the agitation occurring in the canister is less than the agitation of the dense slurry that occurs in the mixer. USG’s expert opines that the kinetic forces and turbulence that occur in the canister result in limited agitation. Defendants’ expert opines that the kinetic forces react with the back pressure caused by the donut to produce violent and turbulent agitation. On defendants’ summary judgment motion, USG’s expert must be credited. 1. Claim 25 An element of Claim 25 is “allowing the resultant assembly to set and dry such that the calcined gypsum forms set gypsum having voids uniformly dispersed therein.” Defendants contend that “resultant assembly” means the entire board, including edges. Defendants contend that this element should be construed as requiring a uniform distribution of voids through the entire board, including edges. It is undisputed that, in the LNA Method which uses hard edges, voids in the edges are not uniform with voids in the core. As of the time that the '635 patent was issued, as well as currently, nearly all commercial wallboard was manufactured with hard edges. Unless defined by the patent as meaning something else, words of a patent claim are to be interpreted in accordance with their ordinary meaning, as they would be understood by one skilled in the art. V-Formation, Inc. v. Benetton Group SpA, 401 F.3d 1307, 1310-11 (Fed. Cir.2005); Merck & Co. v. Teva Pharmaceuticals USA, Inc., 395 F.3d 1364, 1369-70 (Fed.Cir.), cert. denied, — U.S. -, 126 S.Ct. 488, 163 L.Ed.2d 384 (2005); Duhn Oil Tool, Inc. v. Cooper Cameron Corp., 474 F.Supp.2d 1148, 1154 (E.D.Cal. 2007). Claim 25 sets forth a method for preparing “a foamed gypsum board.” It lists the elements “comprising” that method. In a patent claim, “comprising” means including. Mars, Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1375-76 (Fed.Cir.2004); Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1344-45 (Fed.Cir. 2003); Goff v. Harrah’s Operating Co., 412 F.Supp.2d 1090, 1094 (D.Nev.2005). A method claim comprising certain elements does not need to set forth every step necessary to produce the identified product. Mars, supra; Smith & Nephew, Inc. v. Ethicon, Inc., 276 F.3d 1304, 1311 (Fed. Cir.2001); Goff, supra. Thus, the claim 25 preamble language (“A method of preparing a foamed gypsum board comprising ... ”) does not indicate that the elements that follow are sufficient by themselves to produce a foamed gypsum board. Nevertheless, defendants contend that “resultant assembly,” as used in the last phrase of the claim, should be understood as referring to “a foamed gypsum board” that appears in the preamble. Instead, a proper reading of “resultant assembly” is that it refers to the particular steps set forth in claim 25 following the preamble. Those steps include placing the dispersed material between two sheets and drying that assembly. The recited steps, however, do not exclude adding other materials or dispersions before adding the second cover sheet, nor is there any mention of the forming stage of wallboard production. The resultant assembly simply refers to the described dispersion being between two cover sheets. It is consistent with claim 25 to have edges composed of different materials. The only part of the resultant assembly that need have uniformly dispersed voids is the deposited dispersion described in claim 25. Such a reading of claim 25 is consistent with how a person skilled in the art would understand the claim. A person skilled in the art would know that wallboard is manufactured with edges that have a density different from that of the core. Such a person would understand that claim 25 does not make any claim regarding the edges of the board. Specifically, a person skilled in the art would understand that the uniformly dispersed voids exist only in the deposited dispersion described. A person skilled in the art would understand that, in the usual manufacturing process, a different dispersion with a different density would be used for the edges. The undisputed fact that the LNA Method produces wallboard with differing densities in the core and edges does not preclude the possibility that the LNA Method infringes claim 25. 2. Claim 36 Claim 36 relates to a method of preparing foamed gypsum board having a hard edge or edges. In the LNA Method, the edge streams are on the paper before the core stream. When the core stream is deposited on the paper, it is allowed to spread to reach the edge streams on each side of the paper. Defendants contend this is different from claim 36, which they contend provides that the core stream is deposited first and that, when the edge streams are deposited onto the paper, they are immediately next to the core stream. Defendants focus on the element of claim 36 that provides: “depositing the edge stream or streams onto the cover sheet contiguous to one or both edges of the deposited core stream.” Focusing on “deposited” being in the past tense, defendants contend this should be construed as meaning the core stream is deposited on the paper first. Defendants also contend that this element should be read as requiring that the edge stream be deposited onto the paper immediately contiguous to the core stream. USG contends that the use of “concurrently” in the preamble and the lack of any express statement of an order is consistent with the stated steps of the process having no particular order. It also contends that having the core and edge streams be contiguous at any step of the process is sufficient. The use of “concurrently” in the preamble cannot be read as meaning that all steps in the process occur at the same time or in no particular order. It is clear that the mixing and agitating of the gypsum and water must occur before foam is added. It is also clear that the core and edge streams must be separated before the foam is added to only the core stream. Also, the second cover sheet cannot be added over the two streams until after they are deposited on the lower cover sheet. The reference to “continuously and concurrently” should be read as a reference to a plant line, where all the steps are continually run at the same time on the line as a whole, but can occur at different points of the line in a particular order as the materials move (stream) down the line. Claim 36 does not number each step of the process. However, the language used, basic grammar, understanding, or logic, and the understanding of wallboard production that a person skilled in the art would have indicate certain steps must be .taken in a particular order. See Altiris, Inc. v. Symantec Corp., 318 F.3d 1363, 1369-71 (Fed. Cir.2003); Taltech Ltd. v. Esquel Enterprises Ltd., 410 F.Supp.2d 977, 998-99 (W.D.Wash.2006). In appropriate situations, the specification may be considered in construing whether a claim requires a particular order. Altiris, 318 F.3d at 1370. As previously indicated, stating that a second cover sheet is applied over deposited streams necessarily means that the streams must first be on the face paper and a person skilled in the art would also know that this is how wallboard is manufactured. Stating that foam is added to the core stream, necessarily means that the core stream has previously been separated out of the aqueous dispersion. Since the core stream comes from the aqueous dispersion and the aqueous dispersion is described as being created from mixed and agitated calcined gypsum and water, it is also evident that the gypsum and water must be mixed before the core stream is separated out. Logically, since the foam is added to the core stream, adding of the foam also must occur subsequent to the mixing and agitation that created the aqueous dispersion. It is also noteworthy that each step that clearly must occur after another step is recited in order in claim 36. The question is whether any of the language supports that the core stream must be deposited before the edge stream. In claim 36, the step of depositing the edge stream(s) is recited after the depositing of the core stream. This provides some support for reading claim 36 as providing that the core stream is deposited first. As defendants emphasize, stating that the method involves depositing the edge stream(s) when the core stream is deposited plainly provides that the core stream has already been previously deposited. USG contends that “deposited” is simply being used as a descriptive term to distinguish a core stream that has already had foam added from the core stream before being mixed with foam. The plain language of claim 36, however, is that the core stream is deposited first. USG does not point to any language in the specification supporting that the plain language of claim 36 should not be given its ordinary meaning. Claim 36 is construed as providing that the core stream is to be deposited prior to the edge stream. Since the LNA Method deposits the edge stream prior to the core stream, there is no literal infringement. Defendants also contend that the LNA Method does not involve the edge stream being deposited contiguously to the core stream. Claim 36 does not require that an edge stream be deposited immediately next to the core stream. This element is sufficiently satisfied by the edge stream being deposited onto the cover sheet so that it streams down the line to be contiguous to the deposited core stream. Defendants are not entitled to summary judgment on noninfringement based on the contiguous element. Although there is no literal infringement, USG contends there is infringement under the doctrine of equivalents. Defendants do not attempt to dispute the merits of this contention. USG presents evidence supporting that depositing the edge stream first performs the same function in the same way to obtain the same result as depositing the core stream first. Defendants, however, contend that USG has surrendered relying on the doctrine of equivalents. It is undisputed that the Second Amended Complaint does not expressly refer to the doctrine of equivalents. It is also undisputed that USG did not refer to the doctrine of equivalents when responding to contention interrogatories that required it to describe its infringement claims. The response to the contention interrogatories does expressly refer to the fact that the LNA Method involves edge streams being placed on the face paper upstream of the core stream and the fact that the core stream spreads out to be contiguous with the edge stream that is already on the face paper. See, e.g., App. 3, Tab 21 at 14-15. USG contends that it is sufficient to state in a complaint that there is infringement under 35 U.S.C. § 271 and to expressly raise the doctrine of equivalents for the first time in response to a motion for summary judgment. A plaintiff'is not required to expressly refer to the doctrine of equivalents in a complaint, alleging infringement and citing to § 271 is sufficient. Liquid Dynamics Corp. v. Vaughan Co., 2002 WL 1769979 at *8 (N.D.Ill. Aug.1, 2002), vacated & remanded on other grounds, 355 F.3d 1361 (Fed.Cir.2004); Revlon Consumer Products Corp. v. Estee Lauder Cos., 2003 WL 21751833 *32 (S.D.N.Y. July 30, 2003). Here, however, the issue is whether waiver has occurred by failing to expressly refer to the doctrine of equivalents in response to a contention interrogatory issued during discovery. In Revlon, the plaintiff raised the doctrine of equivalents for the first time in a pretrial order filed after the close of discovery. The doctrine had not been relied on in any expert report. See id. at *31. The court cited two cases in which the Federal Circuit had upheld, as not an abuse of discretion, the preclusion of doctrine of equivalent theories because the litigants had failed to assert such a theory in certain discovery documents. See id. at *32 (citing Genentech, Inc. v. Amgen, Inc., 289 F.3d 761, 773-74 (Fed.Cir.2002); Nike Inc. v. Wolverine World Wide, Inc., 43 F.3d 644, 648 (Fed.Cir.1994)). Revlon distinguished those cases in that there had been no discovery violation by the patentee in Revlon and allowed the patentee to pursue the doctrine of equivalents theory. Revlon, 2003 WL 21751833 at *33. Here, defendants contend the failure to expressly rely on the doctrine of equivalents in response to the contention interrogatories is a basis for precluding USG’s present reliance on the doctrine of equivalents. Defendants also point to the court’s statement at the time they moved to compel a further response to the contention interrogatories. ... I’ve read what you’ve said, and I’ve read what they’ve said, and I tend to think that their answer is incomplete for a patent infringement trial, but I don’t know that. And so what I’m going to do is simply tell you this, that if you come to trial and don’t have more detail than you have in the answers to interrogatories, I won’t let you prove it up. And if I don’t let you prove it up, then you may not be able to prove up your infringement claim. But I’m warning you, if you come to trial, I’m going to hold you to a strict accountability in terms of proving up an infringement claim. I won’t let you sandbag the other side. That may or may not be enough. I don’t know. I don’t know enough about the patent. I don’t know enough about what you’re trying to prove. It looks thin to me just looking at it, but I’m not going to do any more than give you 14 days to supplement as to that interrogatory. Sept. 8, 2004 Tr. at 7-8 (App. 8, Tab 26). Thereafter, USG supplemented the interrogatory responses, which are the interrogatory responses defendants now contend are still inadequate. Seventh Circuit law applies in determining an appropriate sanction, if any. Nike, 43 F.3d at 647-48. Precluding USG from pursuing its doctrine of equivalents theory would only be appropriate if defendants were prejudiced by the theory not being expressly included in the interrogatory responses. United States ex rel. Tyson v. Amerigroup Illinois, Inc., 230 F.R.D. 538, 541-42 (N.D.Ill.2005); Thomas v. Ragland, 324 F.Supp.2d 950, 966 (W.D.Wis. July 14, 2004); Heidelberg Harris, Inc. v. Mitsubishi Heavy Industries, Ltd., 1996 WL 680243 *8-10 (N.D.Ill. Nov.21, 1996), reconsideration denied, 1997 WL 321686 (N.D.Ill. June 6, 1997). Although USG did not expressly refer to the doctrine of equivalents, it made clear in its. interrogatory responses that it contends the LNA Method infringes claim 36 even with the edge streams being deposited before the core streams. More importantly, defendants do not point to any prejudice they suffered by the doctrine of equivalents first being raised in response to summary judgment. Defendants do not contend that they only prepared to defend against, literal infringement claims. They do not contend that they omitted taking any fact discovery that would have only been necessary if the doctrine of equivalents were at issue, nor do defendants contend that their experts either have not opined or are unprepared to opine on the subject of equivalents. Moreover, LNA itself refers to the doctrine of equivalents in Count IV of its Countercomplaint. Additionally, the issue has been raised before the' preparation of the final pretrial order, and well before any trial. Even if additional discovery were needed, defendants have had ample time to informally request additional information from USG or to formally move for additional discovery. This is not the type of sandbagging situation referenced at the motion hearing, where one side fails to have an opportunity to prepare for a previously unknown theory until it is time for a trial. USG will not be precluded from raising the doctrine of equivalents. Doctrine of equivalents infringement of claim 36 (and dependent claim 37) will not be dismissed on summary judgment based on the LNA Method’s sequence for depositing the edge streams and the core stream. 3. Mildly Agitate Defendants also contend that there is no infringement of any of the patent claims because the LNA Method does not mildly, agitate the aqueous foam when it is added to the core stream. USG contends that “mildly agitated,” as used in each of the claims, means less agitation than is applied when mixing the gypsum and water to form the aqueous dispersion. Such a relative standard, however, is not expressly stated in claims 25 and 36. The claims themselves only use the term “mildly.” Standing alone, the terms “mild” or “mildly” ordinarily have the meaning of a particular spot on an absolute scale. Claims 25 and 36 do not qualify “mildly” (or “agitated”) with a relative term such as “less” or “more.” That is unlike claims 1 and 13 of the '635 patent (and their respective dependent claims 2-12 and 14-24), which expressly use the relative term “agitated less,” as in “the foam is agitated less than the calcined gypsum.” A patent can define a term as having a meaning different from its ordinary meaning. USG contends that the '635 patent defines “mildly agitated” as meaning less agitated than the calcined gypsum. USG points to the preferred embodiment stating that the invention is distinguished from prior art because it involves agitating the foam less than the calcined gypsum. '635 patent, col. 7,11. 8-13. USG also points to a similar statement in the summary. M col. 4, 11. 11-13. Those statements, however, are true even if “mildly agitated” is construed as an absolute term. Viewed as points on an absolute scale, “mildly agitated” would involve less agitation than “agitating the contents of the mixing chamber” as is.stated in claim 25, or “mixing and agitating calcined gypsum and water” as is stated in claim 36. USG’s citation to the prosecution history is also unconvincing that the term “mildly” should be given other than its ordinary meaning of being on the low end of an absolute scale. Factual disputes exist as to whether the agitation of foam that occurs in the canister of the LNA Method is mild or not. Therefore, defendants are not entitled to summary judgment based on the LNA Method not having the “mildly agitated” element contained in claims 25, 36, and 37. For the foregoing reasons, defendants are not entitled to summary judgment based on noninfringement of any of the '635 claims, except that the claim that patent claims 36 and 37 were literally infringed will be dismissed. As to claims 36 and 37, USG may continue to pursue its claim that those patent claims were infringed based on the doctrine of equivalents. B. Inequitable Conduct Both sides move for summary judgment regarding inequitable conduct. Defendants contend that a process used at USG’s Sweetwater plant from at least 1978 through 1995 was material to claim 13 of the '635 patent and known by an inventor of, and prosecuting attorney for, the '635 patent, but not disclosed to the PTO. USG contends the process was not material and evidence does not support the intent required for there to be inequitable conduct. Claim 13 includes the novel element “inserting an aqueous foam into the mixing chamber through an inlet located closer to a discharge outlet of the mixing chamber than the inlet or inlets for the calcined gypsum and water, such that the foam is agitated less than the calcined gypsum.” The prior art U3G process allegedly had such a location for the foam inlet. A “‘patent may be rendered unenforceable for inequitable conduct if an applicant, with intent to mislead or deceive the examiner, fails to disclose material information or submits materially false information to the PTO during prosecution.’ Digital Control Inc. v. The Charles Mach. Works, 437 F.3d 1309, 1313 (Fed.Cir.2006). The party urging unenforceability must show by clear and convincing evidence that the applicant met ‘thresholds of both materiality and intent.’ Molins PLC v. Textron, 48 F.3d 1172, 1178 (Fed.Cir.1995).” Dippin’ Dots, Inc. v. Mosey, 476 F.3d 1337, 1345 (Fed.Cir.2007). Prior art that would render an invention obvious or anticipated satisfies materiality. Id. at 1178; Duro-Last, 321 F.3d at 1107. The prior art need not actually anticipate the invention or render it obvious; it is sufficient that a reasonable examiner would have considered the prior art important in deciding whether to allow the patent. Dippin’ Dots, 476 F.3d at 1345; Duro-Last, 321 F.3d at 1107. “ ‘Smoking gun’ evidence is not required in order to establish an intent to deceive.... Rather, this element of. inequitable conduct! ] must generally be inferred from the facts and circumstances surrounding the applicant’s overall conduct.” Dippin’ Dots, 476 F.3d at 1345 (quoting Paragon Podiatry Laboratory, Inc. v. KLM Laboratories, Inc., 984 F.2d 1182, 1189 (Fed.Cir.1993)) (ellipsis in Dip-pin’ Dots). “Once threshold findings of materiality and intent are established, the court must weigh them to determine whether the equities warrant a conclusion that inequitable conduct occurred.” Dippin’ Dots, 476 F.3d at 1346 (quoting Molins, 48 F.3d at 1178); Impax Laboratories, Inc. v. Aventis Pharmaceuticals Inc., 468 F.3d 1366, 1375 (Fed.Cir.2006) (quoting Monsanto Co. v. Bayer Bioscience N.V., 363 F.3d 1235, 1239 (Fed.Cir.2004)). “The more material the omission or misrepresentation, the less intent that must be shown to elicit a finding of inequitable conduct,” and vice versa. Impax, 468 F.3d at 1375; Cargill, Inc. v. Canbra Foods, Ltd., 476 F.3d 1359, 1365 (Fed.Cir.2007) (quoting Critikon, Inc. v. Becton Dickinson Vascular Access, Inc., 120 F.3d 1253, 1256 (Fed.Cir.1997), cert. denied, 523 U.S. 1071, 118 S.Ct. 1510, 140 L.Ed.2d 665 (1998)). If inequitable conduct occurred with respect to at least one claim of an application, the entire patent is unenforceable. Impax, 468 F.3d at 1375. At his deposition, co-inventor Stewart Hinshaw testified that, as of the time the '635 patent was prosecuted, he was aware of the process used at USG’s Sweetwater plant. Hinshaw drew a diagram of this process. The diagram shows a mixer with a clockwise rotation. Looking down from above the mixer, the diagram shows water and stucco entering at approximately the 9:00-10:30 position, foam entering at approximately the 10:30-11:15 position, and a discharge at approximately the 5:00 o’clock position. While the discharge is indicated as being on the outer side of the mixer, the foam entry is indicated as entering nearer the center than the outer edger of the mixer. The stucco is indicated as entering closer to the outside than the foam. Water is indicated as.entering all around the stucco, that is, some parts closer to the center and some parts farther from the center than the stucco and foam entries. Hinshaw testified that foam entering clockwise of the stucco/water did not necessarily result in the foam being upstream (and therefore closer) to the discharge. Hinshaw testified that positioning of the lump ring would affect centrifugal forces which would push the ingredients in indeterminate directions before eventually reaching the outer edges of the mixer where there would be a clockwise rotation that could be characterized as up or downstream from the discharge. Defendants rely on the location of the inlets to show that the foam enters closer to the discharge than the stucco/water. They ignore that this element of claim 13 recites that the foam inlet is closer to the discharge such that the foam is subjected to less agitation. For less agitation to occur, the foam must enter in a manner that results in a shorter distance traveled and/or less forces (and thus less mixing/agitation) before exiting through the discharge. Defendants do not present any evidence supporting that, in the Sweetwa-ter process, the foam is subjected to less traveling, mixing, or agitation than the stucco/water. Therefore, there is no sufficient evidence to support that the Sweet-water process was material to claim 13. Since defendants cannot satisfy the threshold requirement of materiality, they cannot succeed on their inequitable conduct affirmative defense or counterclaim based on failure to disclose the Sweetwater process. Defendants contend they also have other grounds for invoking inequitable conduct. USG contends all those grounds were previously withdrawn. Contrary to USG’s contention, defendants’ August 3, 2005 second supplemental response to interrogatory no. 3 (App. 7, Tab 277 at 30-31) adds the Sweetwater process to defendants’ asserted grounds for applying inequitable conduct. The supplement does not replace prior inequitable conduct contentions with the one ground stated in the supplement. The inequitable conduct affirmative defense and counterclaim will only be dismissed to the extent based on the Sweetwater process. II. TRADE SECRETS Defendants move for summary judgment dismissing claims based on 13 specific trade secrets. Defendants contend any other possible trade secrets have not been adequately identified. USG contends it has adequately identified additional trade secrets. Each of the 13 trade secrets will be considered in turn, and then the dispute regarding whether any claims remain regarding other trade secrets. Only defendants move for summary judgment regarding trade secrets. Therefore, the facts set forth below resolve all genuine factual disputes in USG’s favor. The parties agree that, for purposes of resolving summary judgment issues, it can be assumed that Illinois law applies to the trade secret claims or, at least, that any other state law that applies is identical to Illinois law. Before discussing particular trade secrets, general principles of trade secret law will be set forth. A. Illinois Trade Secrets Act Since 1988, trade secret claims under Illinois law have been governed by statute. See 765 ILCS 1065/8-9. The Illinois Trade Secrets Act (“ITSA”), 765 ILCS 1065, is patterned after the Uniform Trade Secrets Act (“UTSA”), which has been adopted by Illinois and 45 other states. See 765 ILCS 1065/1 (Supp.2006) (annotation). Although patterned after UTSA, there is substantial variance between ITSA and the uniform version. See Melvin F. Jager, Trade Secrets Law § 3:31 at 3-85 to 3-90 (2005). To prevail on any of its trade secret claims, USG must prove by a preponderance of the evidence that (1) the information at issue was a trade secret; (2) the information was misappropriated; and (3) the information was used in defendants’ business. Multiut Corp. v. Draiman, 359 Ill.App.3d 527, 295 Ill.Dec. 818, 834 N.E.2d 43, 49 (1st Dist.2005); Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 721 (7th Cir.2003); RKI, Inc. v. Grimes, 177 F.Supp.2d 859, 877 (N.D.Ill. 2001). In order to satisfy the first element of there being a trade secret, it must be shown both that the information was sufficiently secret to give it a competitive advantage and that affirmative measures were taken to prevent others from acquiring or using the information. 765 ILCS 1065/2(d); Multiut, 295 Ill.Dec. 818, 834 N.E.2d at 49; Learning Curve, 342 F.3d at 721. Illinois case law holds that six common law factors may also be considered in determining whether information is a trade secret: “(1) the extent to which the information is known outside of [the employer’s] business; (2) the extent to which it is known by employees and others involved in [the] business; (3) the extent of measures taken by [the employer] to guard the secrecy of the information; (4) the value of the information to [the employer] and to his [or her] competitors; (5) the amount of effort or money expended by [the employer] in developing the information; [and] (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.” Arcor, Inc. v. Haas, 363 Ill.App.3d 396, 299 Ill.Dec. 526, 842 N.E.2d 265, 269-70 (1st Dist.2005) (quoting Delta Medical Systems v. Mid-America Medical Systems, Inc., 331 Ill.App.3d 777, 265 Ill.Dec. 397, 772 N.E.2d 768, 780 (1st Dist.), appeal denied, 201 Ill.2d 564, 271 Ill.Dec. 924, 786 N.E.2d 182 (2002)); Learning Curve, 342 F.3d at 722. Information that is generally known or understood within an industry, even if not known to the public at large, does not qualify as a trade secret. Learning Curve, 342 F.3d at 722 (quoting Pope v. Alberto-Culver Co., 296 Ill.App.3d 512, 230 Ill.Dec. 646, 694 N.E.2d 615, 617 (1st Dist.1998)). A corollary to this is that there generally can be no trade secret protection for a product that is available in the market. See Composite Marine Pro pellers, Inc. v. Van Der Woude, 962 F.2d 1263, 1267 (7th Cir.1992); BondPro Corp. v. Siemens Power Generation, Inc., 463 F.3d 702, 709-10 (7th Cir.2006) (Wisconsin UTSA); Chemetall GMBh v. ZR Energy, Inc., 138 F.Supp.2d 1079, 1083 (N.D.Ill. 2001). Information that is derived from public sources, but requires laborious accumulation, culling, and/or analysis of the public information can still qualify as a trade secret. See Stampede Tool Warehouse, Inc. v. May, 272 Ill.App.3d 580, 209 Ill.Dec. 281, 651 N.E.2d 209, 216 (1st Dist.), appeal denied, 163 Ill.2d 589, 212 Ill.Dec. 438, 657 N.E.2d 639 (1995); RKI, 177 F.Supp.2d at 873-74. In such situations, an accused party that contends the information could be acquired from public sources must show that it independently acquired the information from public sources. See Hexacomb Corp. v. GTW Enterprises, Inc., 875 F.Supp. 457, 466-67 (N.D.Ill.1993); Jager, § 3:31 at 3-87 to 3-88. The party asserting the trade secret would still have the burden of first establishing that the information qualified as a trade secret. General knowledge, skill, and experience gained by an employee during employment cannot be claimed as a trade secret. The protection afforded trade secrets reflects a balancing of conflicting social and economic interests. Where an employer has invested substantial time, money, and effort to obtain a secret advantage, the secret should be protected from an employee who obtains it through improper means. Nevertheless, in a competitive market, an employee must be entitled to utilize the general knowledge and skills acquired through experience in pursuing his chosen occupation. Delta Medical, 265 Ill.Dec. 397, 772 N.E.2d at 780 (citations omitted) (quoted in Multiut, 295 Ill.Dec. 818, 834 N.E.2d at 50). Misappropriation is defined as including: (1) acquisition of a trade secret of a person by another person who knows or has reason to know that the trade secret was acquired by improper means; or (2) disclosure or use of a trade secret of a person without express or implied consent by another person who: (A) used improper means to acquire knowledge of the trade secret; or (B) at the time of disclosure or use, knew or had reason to know that knowledge of the trade secret was: (I) derived from or through a person who utilized improper means to acquire it; (II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or .... 765 ILCS 1065/2(b). “Improper means” is defined as including “theft, bribery, misrepresentation, breach or inducement of a breach of a confidential relationship or other duty to maintain secrecy or limit use, or espionage through electronic or other means. Reverse engineering or independent development shall not be considered improper means.” Id. 1065/2(a). B. Construction Specifications The Construction Specifications are a set of specifications used in the construction of USG plants. As of March 1995, the Specifications consisted of 438 pages containing 99 individual specifications. The Specifications have been developed for more than 80 years and are repeatedly updated with the most recent “best practices.” The Specifications are used by outside contractors for construetion work performed at USG plants. The Specifications are kept in a password-protected computer system with only certain employees being entitled to accesss. USG Project Managers are responsible for maintaining their copies in a safe and secure place. USG’s Engineering Support Manager provides a declaration in which he describes general practices regarding the Specifications. He states that outside contractors are only given those particular specifications that are pertinent to the particular project. He also states that the Specifications are provided under strict conditions of confidentiality with the contractors instructed not to use them for non-USG projects. Examples are provided of written confidentiality provisions contained in documents of a particular project. Two of the examples are contract provisions contained in the middle of lengthy documents. Another has statements on drawings. The statements, however, are not prominent on the drawings, just being printed notations in the margins. The purported confidentiality provisions state USG’s proprietary interest in the particular data, drawings, etc., and that they are not to be used for other purposes. None of the statements, however, expressly refer to confidentiality, secrecy, or other similar terms. One of the statements includes that the referenced items should not be duplicated or disclosed to others. Defendants submit a contract from the same project which contains no provision that USG contends is a confidentiality provision. Defendant Weldon worked for USG from 1985 to 1991 and from 1994 to February 21, 1997. He has worked for LNA (with a short time at a related entity) since December 1999. In 1994, Weldon signed an employee agreement that included a promise not to disclose USG “Confidential Information” and to return such documents upon termination of his employment. As the Project Manager for USG’s Greenville Project, Weldon had a complete copy of the March 1995 version of the Construction Specifications. When his employment terminated, Weldon kept the copy of the Specifications. At the time, however, Weldon was retained as a consultant for litigation related to the Greenville Project. When he went to work for LNA in 1999, Weldon still had the Specifications. The Specifications had no cover page. Weldon added a cover page which had a LaFarge logo, with “Construction Specifications” printed underneath. Weldon placed the Specifications on a bookshelf in the construction trailer for LNA’s Palatka plant construction project. The shelf was accessible to the numerous employees coming in the trailer. Weldon states that he retained the Specifications in case he needed them regarding the Greenville litigation. In September 1997, however, Weldon was informed that the Greenville litigation had settled. He did not return the Specifications at that time. Weldon states that he never used the Specifications for the Palatka project or any other LNA project. Three other LNA employees and two employees of outside contractors, all of whom worked on the Palatka project, state that they did not know of or use the Specifications for the project and that Weldon did not provide any specifications for the project. USG points to no specific aspect of the Palatka project that would have been based on a specification found in the Construction Specifications. USG’s implicit position is that the presence of the Specifications in a location accessible to Palatka project workers is enough to infer that the Specifications were used for that project. Such an inference is not reasonable without identifying an aspect of the Palatka project that could have been based on the Specifications. See Rotec Industries, Inc. v. Mitsubishi Corp., 179 F.Supp.2d 885, 894-95 (C.D.Ill.2002). See also Tempco Electric Heater Corp. v. Temperature Engineering Co., 2004 WL 1254134 *8-11 (N.D. Ill. June 3, 2004). Regarding the witnesses supporting defendants’ version of the Construction Specifications facts — as well as many other witnesses supporting defendants’ versions of other factual issues— USG contends the testimony should be rejected as self-serving and incredible. As the Seventh Circuit has repeatedly noted, testimony being self-serving is not by itself a basis for rejecting the testimony as non-credible. Most affidavits and much testimony are self-serving. Like any other testimony, self-serving testimony is to be accepted on summary judgment as long as it is based on personal knowledge, sufficiently specific, not disputed by contrary evidence of the nonmovant, and in compliance with any other evidentiary criteria applicable to the particular testimony. See Payne v. Pauley, 337 F.3d 767, 771-73 (7th Cir.2003); Paz v. Wauconda Healthcare & Rehabilitation Centre, LLC, 464 F.3d 659, 664-65 (7th Cir.2006); Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir.2006). Rejecting testimony as noncredible requires that there be specific evidence supporting that a witness’s testimony is noncredible, such as contradictory accounts or other impeachment evidence. Harvey v. Office of Banks & Real Estate, 377 F.3d 698, 712 (7th Cir.2004); Muhammed v. City of Chicago, 316 F.3d 680, 683-84 (7th Cir.2002). Other than Weldon’s testimony that he was not told about the settlement, which must be assumed to be untrue on summary judgment, USG does not point to any basis whatsoever for finding the witnesses to be noncredible. This misstatement by Weldon is not enough to discredit his entire testimony. As long as adequate confidentiality restrictions are imposed on the outside contractors, documents that otherwise qualify as containing trade secrets will not lose that character by being provided to outside contractors. USG, however, has not presented evidence sufficiently supporting that its disclosures of the Construction Specifications to outside contractors was done with adequate restrictions. Identifying information as proprietary is not the same as denominating it as confidential. Moreover, declarations of confidentiality and nondisclosure should be more prominent than the examples provided by USG. USG has failed to meet its burden of showing that the Construction Specifications were confidential. But even assuming the Construction Specifications were adequately shown to contain trade secrets that were kept confidential, USG’s claim based on the Specifications will be dismissed because USG fails to satisfy the element of showing that the Specifications were used in LNA’s business. Rotee, 179 F.Supp.2d at 894-95. USG’s trade secret claim based on the Construction Specifications will be dismissed. Since this claim is being dismissed for the reasons set forth above, it is unnecessary to consider defendants’ other arguments regarding this trade secret. C. Kettle and Mixer Drawings and Hooker Booker Blueprints As of May 2003, defendant Kruzshak was employed at USG’s Stony Point, N.Y. plant. On May 30, 2003, he accepted an offer to work as the Maintenance Manager at LNA’s Buchanan, N.Y. plant. A few days later, Kruzshak downloaded, onto an external hard drive, drawings for USG’s MBR kettle and mixer and blueprints for USG’s high-speed hooker booker. At least for present purposes, defendants do not dispute that these drawings contain trade secrets. Kruzshak began working at LNA in June 2003. Shortly thereafter, he uploaded the files from the external hard drive to his LNA laptop computer. USG contends the files were also uploaded to the LNA computer network, but point to no competent evidence supporting that contention. USG cites to Kruzshak’s deposition testimony, but that testimony only mentions uploading the files to his LNA laptop. See PSF ¶ 76 (citing Kruzshak Dep. at 307, 310-11 (App.6, Tab.28)). In a declaration, Kruzshak expressly states that he did not upload the files to the LNA network. App. 8, Tab 6. USG internal controls indicated that Kruzshak had accessed the files before he left USG’s employ. In July 2003, USG wrote to Kruzshak and LNA demanding that the files be returned and that confidential information not be used. Either just before or shortly after this letter arrived, Kruzshak deleted the files from his laptop. In response to the letter and telephone calls, LNA personnel secured the laptop, but the files had already been deleted by Kruzshak. There were discussions of having a third party conduct a forensic analysis of the computer, but it was instead agreed that the hard disk would be cleaned and sanitized. There is no evidence that Kruzshak uploaded any of the files to LNA’s computer network. There is also no evidence that Kruzshak otherwise disclosed any of the drawings’ information to anyone at LNA. This claim fails because there is no evidence that LNA used any of the kettle, mixer, or hooker booker information in its business. USG contends it could still be entitled to a royalty for the up to six-week period that Kruzshak had the files on the laptop. Such a royalty, however, would be “measured in terms of a reasonable royalty for a misappropriator’s unauthorized disclosure or use of a trade secret.” 765 ILCS 1065/4. As previously discussed, there is no evidence that Kruzshak used the trade secrets and also no evidence that he disclosed them to anyone else at LNA. There is no basis for awarding a royalty. The trade secret claims based on the kettle and mixer drawings and hooker booker blueprints will be dismissed in their entirety. D. Fiberglass Feeder Fiberglass is used as an additive in some wallboard. When being fed into the stucco mixture, fiberglass pieces can stick to each other and the walls of the device feeding the fiberglass. USG developed a water cascade for cleaning the fiberglass inlet to the mixer. USG has not used the Feeding Device since at least 1987. LNA uses the Feeding Device at its Silver Grove and Palatka plants. USG contends that nondefendant Sylvan Lutey, a former USG employee working for LNA, suggested installing the Feeding Device at the two LNA plants. USG contends that Lutey knew of the Feeding Device because he installed one while employed at a USG plant. The evidence cited in support of this contention only supports that a feeding device using water and a funnel was installed at USG’s Heath plant while Lutey worked there. See PSF ¶ 93 (citing Lutey Dep. at 17-18 (App. 6, Tab 30)). A different feeding device was being used when Lutey first arrived at the Heath plant, and a different one was installed before he left that plant. Lutey does not testify whether he was actually involved in the installation of the water feeding device, but he does later testify that he was familiar with the design of the water feeding device and that it involved a funnel. See Lutey Dep. at 54. Lutey also testified that the Heath f