Full opinion text
ORDER RE: DEFENDANTS’ NONIN-FRINGEMENT AND INVALIDITY SUMMARY JUDGMENT MOTIONS MARTIN J. JENKINS, District Judge. INTRODUCTION Before the Court are five summary judgment motions brought by the Defendants (Bayer, Roche, and BD/Nova) in these related patent infringement actions. The motions include three non-infringement motions: (1) a motion for summary judgment of noninfringement brought by Bayer with respect to the '551 patent; (2) a motion for partial summary judgment of noninfringement brought by Roche with respect to the '745 patent; and (3) a motion for summary judgment of noninfringement brought by BD/ Nova with respect to the '164, '551, and '745 patents. The other two motions address invalidity issues. They are: (4) a motion for summary judgment of invalidity brought by BD/Nova with respect to the '890 patent; and (5) a motion for summary judgment of invalidity brought by all Defendants with respect to the '745 patent. Plaintiff Abbott opposes all of the relief sought by these motions. The motions have been fully briefed by the parties, and have been the subject of extensive oral argument. Having carefully considered the evidence and argument submitted by the parties, the Court rules as set forth below. FACTUAL BACKGROUND The four related lawsuits that gave rise to the summary judgment motions before the Court concern four United States patents owned by Abbott Diabetes Care Inc. and Abbott Laboratories (collectively “Abbott”): U.S. Patent Nos. 5,628,890, 5,820,551, 6,143,164, and 6,592,745. In the lawsuits, Abbott has asserted that blood-glucose test strips marketed and manufactured by the Defendants infringe one or more of the Abbott patents. In Case Nos. 04-2123, 04-3327, and 04-3732, Abbott contends that Defendants Becton, Dickinson and Co. (“BD”) and Nova Biomedical Corporation (“Nova”) (collectively “BD/Nova”) wilfully infringe the four Abbott patents-in-suit, entitling Abbott to damages and injunctive relief. BD/Nova alleges it does not infringe the Abbott patents and that the Abbott patents are invalid, thereby entitling BD/ Nova to declaratory judgments of non-infringement and patent invalidity. In Case No. 05-3117, Abbott contends that Defendants Roche Diagnostics Corporation (“Roche”) and Bayer Healthcare LLC (“Bayer”) wilfully infringe the '551 and '745 patents, entitling Abbott to damages and injunctive relief. Roche and Bayer each allege that they do not infringement the Abbott patents and that the Abbott patents are invalid, thereby entitling Roche and Bayer to declaratory judgments of non-infringement and patent invalidity. The Court has previously construed several disputed claim terms in coordinated claim construction proceedings. In a claim construction order dated August 31, 2006, the Court construed several terms of the '890 and '164 patents. In a claim construction order dated April 27, 2007, the Court construed several disputed terms of the '551 and '745 patents. LEGAL STANDARD I. Summary Judgment. Federal Rule of Civil Procedure 56(c) authorizes summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of demonstrating the basis for the motion and identifying the portions of the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file that establish the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets this initial burden, the burden then shifts to the non-moving party to present specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-movant’s bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. An issue of fact is material if, under the substantive law of the case, resolution of the factual dispute might affect the case’s outcome. Id. at 248, 106 S.Ct. 2505. Factual disputes are genuine if they “properly can be resolved in favor of either party.” Id. at 250, 106 S.Ct. 2505. Thus, a genuine issue for trial exists if the non-movant presents evidence from which a reasonable jury, viewing the evidence in the light most favorable to that party, could resolve the material issue in its favor. Id. However, “[i]f the [non-movant’s] evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50, 106 S.Ct. 2505 (internal citations omitted). A. Non-Infringement. To determine infringement, the asserted claim must be compared to the allegedly infringing method or device. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995). To establish literal infringement, every claim limitation, or claim element, must be found in the accused subject matter. Warner-Jenkinson Co. v. Hilton Davis Chemical Co., 520 U.S. 17, 29, 40, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). Thus, establishing that the accused method or device does not satisfy one claim limitation would support a finding of noninfringement. Id. The patentee must prove infringement by a preponderance of the evidence. Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed.Cir.2000). Under the doctrine of equivalents, a product that does not literally infringe a patent claim may still infringe if each and every limitation of the claim is literally or equivalently present in the accused device. See Warner-Jenkinson, 520 U.S. at 40, 117 S.Ct. 1040. Whether an element of an accused product infringes under the doctrine of equivalents depends in part on whether that component performs substantially the same function as the claimed limitation in substantially the same way to achieve substantially the same result. See Ethicon Endo-Surgery, Inc. v. United States Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir.1998); Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 934-35 (Fed.Cir.1987) (en banc). If the differences between a claim and an accused device are “insubstantial” to one with ordinary skill in the art, the product may infringe under the doctrine of equivalents. See Ethicon, 149 F.3d at 1315; Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1423 (Fed.Cir.1997). The doctrine prevents an accused infringer from avoiding infringement by changing minor details of a claimed invention while retaining its essential functionality. See Sage, 126 F.3d at 1424. B. Invalidity. A patent claim is presumed valid. 35 U.S.C. § 282. The burden is on the party challenging the patent to show, by clear and convincing evidence, that the patent claim is invalid. See Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367 (Fed.Cir.1986); Invitrogen Corp. v. Clontech Laboratories, Inc., 429 F.3d 1052, 1063 (Fed.Cir.2005). ANALYSIS I. Bayer’s Motion For Summary Judgment Of Noninfringement. Bayer seeks summary judgment of non-infringement with respect to the '551 patent for its two accused two products, the Microfill and Autodisc strips. Plaintiffs have accused these two products of infringing claims 1-4 of the '551 patent. Bayer contends that these products do not infringe the asserted '551 claims for two independent reasons: (1) the Bayer products do not contain a “reference electrode”, and (2) the Bayer products do not contain electrodes that are in electrical contact with each other. A. The “reference counterelectrode” limitation. All of the '551 claims asserted against Bayer cover a device that has a “reference counterelectrode.” In its April 27, 2007 claim construction order, the Court construed “reference electrode” to mean: an electrode that (1) is used to complete an electrical circuit with the active electrode during the glucose measurement; (2) is positioned or connected in such a way that electricity can flow between the second conductor and the electrode; (3) has a known potential relative to a standard; and (4) maintains its potential with only insignificant variation during the measurement. Bayer contends that the undisputed evidence establishes that the eounterelec-trodes contained in its two accused products do not have a known potential relative to a standard. 1. Literal infringement. The testimony of Bayer’s expert, Dr. Stetter, is uneontradicted that the potential of the eounterelectrodes in the accused Bayer products varies significantly depending on the concentration of glucose in the sample. (Stetter Decl., ¶¶ 18-25.) Because the purpose of the accused devices is to measure the glucose level in blood, this means that the exact potential of the counterelectrodes is not known before measurement. In its effort to prove that the potential of the counterelectrodes is nonetheless “known ... relative to a standard”, Bayer relies exclusively on the testimony of its expert, Jay Johnson. Dr. Johnson’s testimony describes experiments in which the potential of the counterelectrodes was calculated based on assumptions about the real-world circumstances in which the accused products would be used, and those calculations were then compared with experimentally measured potentials. (Johnson Decl., ¶¶ 44-50.) However, Abbott and Dr. Johnson do not dispute that the potential of the counterelectrodes in the accused Bayer products varies depending on the glucose concentration of the sample (Johnson Decl., ¶¶ 55-56), such that the potential of the counterelectrode in Bayer’s accused products can only be estimated within a range that corresponds to a reasonable range of glucose concentrations encountered in human blood. (Johnson Decl., ¶¶ 22-23; Bartlett Decl., Exh. 11 at 365:7-371:5; Opp. at 6:24-25.) At best, Dr. Johnson’s testimony establishes that the potential of the Bayer counterelec-trodes can be narrowed to a range through approximation and experimentation, making assumptions regarding the glucose levels that the accused device would commonly encounter. Dr. Johnson’s testimony, however, fails to create a triable issue of fact as to whether the potential of the Bayer counterelectrodes, which he concedes varies by glucose concentration and cannot be looked up in a reference work, is “known ... relative to a standard.” Having a range of potentials that can be estimated through calculation and confirmed by experiment does not satisfy the claim limitation as construed by the Court. Indeed, Abbott and its expert concede facts that conclusively establish that there is no literal infringement under the Court’s construction. Dr. Johnson admits that the counterelectrodes in the Bayer accused products are pseudoreference electrodes. (Johnson Decl., ¶¶ 37-38; see also Opp. at 2:15-16, 8:22-23, 9:15-16.) During the claim construction phase, this Court previously rejected Abbott’s contention that the claim term “reference counterelectrode” was broad enough to literally encompass pseudoreference electrodes. Abbott concedes in its opposition that “[t]he Court determined that the reference electrode did not include a quasireference or pseudo-reference electrode.” (Opp. at 14:25-15:1.) Abbott’s experimental tests of the Bayer accused devices, which were performed at a set glucose concentration, also fail to create a triable issue of fact with respect to the “reference counterelectrode” claim element. (Johnson Decl., ¶¶ 44-50.) To the extent those tests showed that the potential of Bayer’s counterelectrodes varied less than a commercial blood glucose sensor with a Ag/AgCl electrode, as Dr. Johnson contends, the tests are probative of the amount of variation in the potential during the measurement, but not whether the potential is “known .... relative to a standard”, a separate requirement imposed by the Court’s claim construction. Such test results do not refute that the potential of the Bayer counterelectrode differs significantly depending on the glucose level of the sample to be tested. Abbott’s tests therefore do not establish that the potential of the Bayer counterelectrode is “known ... relative to a standard.” Accordingly, there can be no literal infringement of claims 1-4 of the '551 patent because Bayer’s accused products do not contain a “reference counterelectrode.” 2. Reconsideration of the Court’s claim construction. In an effort to rescue its literal infringement allegations, Abbott requests that the Court reconsider its construction of the claim term “reference counterelec-trode.” Abbott contends that subsequent developments since the March 9, 2007 claim construction hearing, including expert testing and depositions of Defendants’ witnesses, provide new evidence that support a different construction. As a threshold matter, Bayer argues that it is procedurally improper for the Court to revisit the accuracy of its construction. Several sister courts have required a litigant to meet the Civil Local Rule 7-9 standard when requesting reconsideration of a claim construction. See Celerity, Inc. v. Ultra Clean Tech. Sys. & Serv., 2007 U.S. Dist. LEXIS 44490 at *5 (N.D. Cal. June 1, 2007); Samsung Elecs. Co. v. Quanta Computer, Inc., 2006 U.S. Dist. LEXIS 54538 at *3-4, 2006 WL 2067062 at *1 (N.D.Cal. July 25, 2006); Ultratech, Inc. v. Tamarack Sci. Co., 2004 U.S. Dist. LEXIS 21393 at *4 n. 1, 2004 WL 2304259 at *1 (N.D.Cal. Oct. 12, 2004). Though Abbott cites to Federal Circuit decisions indicating that courts “may engage in a rolling claim construction, in which the court revisits and alters its interpretation of the claim terms as its understanding of the technology evolves”, these decisions involved avowedly tentative constructions arrived at in the preliminary injunction context. In contrast, this Court arrived at its claim construction after full opportunity for the parties to present evidence relevant to claim construction consistent with the detailed procedures established by the Northern District’s local rules. The Court will therefore follow the lead of its sister courts and vet Abbott’s request for reconsideration as if it had been brought as a motion for leave to file a motion for reconsideration under Civil Local Rule 7-9. Against that backdrop, the Court notes that all of the allegedly “new” evidence cited by Abbott falls into the category of extrinsic evidence, which by its nature plays a very limited role in the construction of patent claims. Although extrinsic evidence may be used by the Court to help understand a disputed claim limitation, it may not be used to vary, contradict, expand, or limit the claim language from how it is defined, even by implication, in the specification or file history. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1584-85 (Fed.Cir.1996). “Indeed, where the patent documents are unambiguous, expert testimony regarding the meaning of a claim is entitled to no weight.” Id. at 1584. Here, the Court reached the appropriate construction of the “reference counterelectrode” limitation based solely on the intrinsic evidence. Under controlling Federal Circuit precedent, the extrinsic evidence now cited by Abbott would have played a very limited role, if any, in interpreting the “reference counterelectrode” claim limitation had such evidence been before the Court at the claim construction hearing. See id. at 1584-85. Moreover, for most of the newly submitted extrinsic evidence, Abbott has failed to show that “in the exercise of reasonable diligence” it could not have provided the evidence at the time of the claim construction hearing. Civil Local Rule 7—9(b)(1). Abbott makes no such “reasonable diligence” showing for its citations to Roche’s U.S. Patent No. Re36,268, to Nova’s U.S. Patent No. 6,258,229, to the December 2006 deposition of Dr. Hill, or to its own expert’s tests of its own products. The Court is not inclined to revisit its claim construction based on extrinsic evidence that Abbott, in the exercise of reasonable diligence, could have brought to the attention of the Court at the time of the claim construction hearing. In any event, Abbott’s reconsideration arguments premised on the '268 patent, the '229 patent, Dr. Hill's testimony, and Dr. Johnson’s experiments on Abbott’s test strips are unpersuasive and would not warrant a different construction even if they were considered by this Court. For example, the Roche '268 patent and the Nova '299 patent, which as extrinsic evidence are of limited probative value anyway, were filed later than the application of which the '551 patent is a continuation, and therefore have limited value in explaining how one of ordinary skill in the art would have interpreted the '551 patent disclosures at the relevant time period. Likewise, the Court is not persuaded to revise its construction based on Dr. Johnson’s tests on Abbott’s own Medisense test strips. Abbott contends that Dr. Johnson’s tests of the Ag/AgCl second electrode, not protected by a salt bridge, in Abbott’s own “Precision Xtra” strips establish that even an Ag/AgCl reference counterelectrode would not have a known potential relative to a standard. Therefore, Abbott argues, the Court’s claim construction must be wrong since it would exclude even the preferred embodiment using the Ag/AgCl reference counterelec-trodes disclosed in the '551 patent. As a threshold matter, Abbott fails to persuade the Court that it should afford any significant weight to this extrinsic evidence, which tested the performance characteristics of a 2007 commercial device, for purposes of determining what a person of ordinary skill would understand from the teachings of the '551 patent in the mid-1980s. Moreover, the data that Dr. Johnson attaches to his declaration (Johnson Deck, Exh. 6) does not appear to support his statement (Johnson Deck, ¶ 18) that the potential of the Ag/AgCl second electrode in the Abbott commercial device differed to any significant degree from the known potential of a true Ag/AgCl electrode. The data provided to the Court indicates that the potential of the Ag/AgCl second electrode, during relevant measurement times, remained remarkably close in potential ( between -0.01 V and 0.00 V) versus a true Ag/AgCl (3M KC1) electrode. (Johnson Deck, Exh. 6.) The Court is not persuaded that Dr. Johnson’s tests on the Abbott commercial device establish that an Ag/AgCl counterelectrode, unprotected by a salt bridge, would fall outside the scope of the Court’s current claim construction. Abbott’s citation to Dr. Hill’s December 2006 testimony also does not warrant a change in the claim construction. Dr. Hill conceded that the potential of an Ag/AgCl electrode could drift somewhat over time after enough of the AgCl had converted to Ag through a chemical reaction. (Hill Depo. at 98-100, Hutcheson Decl., Exh. 8; Hill Depo. at 96-97, Hutcheson Decl., Exh. 8A.) However, this testimony does not on its own suggest that an Ag/AgCl counterelectrode would fall outside the scope of the Court’s construction, since the construction requires that the reference counterelectrode maintain its potential with insignificant variation only “during the measurement”, not indefinitely. Dr. Hill also provided somewhat ambiguous testimony that equates the function of a pseudoreference with the combination of a reference electrode and a counterelec-trode. (Hill Depo. at 93-94, Hutcheson Decl, Exh. 8A.) But this testimony, which from the context of the questioning appears to be based on Dr. Hill’s 2006 understanding of the term “pseudoreference”, is minimally probative of how one skilled in the art would have understood the term “reference eounterelectrode” in the mid-1980s. The only evidence presented by Abbott on the issue of reconsideration that appears to be “new” within the meaning of Civil Local Rule 7-9 is evidence, in the form of deposition testimony and internal documents, concerning how Bayer and other defendants sometimes referred to the counterelectrodes in their accused products. (See evidence cited at pages 17-21 of Abbott’s Opposition.) This evidence does not provide a sufficient basis for the Court to revise its construction of the “reference counterelectrode” claim term. Testimony by certain employees of Bayer or of other defendants, acknowledging that they have in more recent years used the word “reference electrode” to describe the countere-lectrodes used in the accused products, is not sufficiently probative evidence of what one skilled in the art in the mid-1980s would have understood the '551 patent to mean by “reference counterelectrode.” Abbott has not demonstrated that these individuals were using terms consistent with how one skilled in the art would have used them in the mid-1980s. Without such a link, such deposition testimony is not the kind of extrinsic evidence that plays a significant role in claim construction. Accordingly, the Court finds no basis to alter its construction of the “reference counterelectrode” claim term. 3. Doctrine of equivalents. Abbott contends that the jury could still find infringement under the doctrine of equivalents (DOE) because the “pseudoreference” counterelectrode used in the Bayer accused devices is an “insubstantial difference” from the “reference counterelectrode” required by the '551 claims. Abbott argues that even if the potential of the counterelectrodes in the Bayer accused products is not “known ... relative to a standard”, the Bayer counter-electrodes are nonetheless an equivalent. Abbott has adduced sufficient evidence to create a triable issue of fact as to whether a pseudoreference is an insubstantial difference from the “reference counterelectrode” required by the '551 claims. Abbott submits considerable evidence that those with ordinary skill in the art would today consider a pseudoreference electrode to be interchangeable with a reference electrode. Known interchangeability is a useful objective standard of equivalency. See Warner-Jenkinson Co. v. Hilton Davis Chemical Co., 520 U.S. 17, 36, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). Abbott’s expert, Dr. Johnson, has testified in detail regarding the similarities between reference electrodes and pseudo-reference electrodes (Johnson Decl., ¶¶ 15-23), and opines that for many years those of ordinary skill in the art “have known of the interchangeability of the terms pseudo-reference electrode and reference electrode in blood glucose sensors” (Johnson Decl., ¶ 32). Similarly, Bayer scientist Dr. Vreeke acknowledged that if he had been told in 1999 to use any type of reference electrode to make a blood glucose sensor, he would have understood he could use a quasireference electrode. (Vreeke Depo. at 263:11-18, Hutcheson Deck, Exh. 6.) Relevant art in the field such as the Roche’s '268 patent also supports the interchangeability of pseudoreference electrodes with reference electrodes, stating: “The reference electrode may also be of the type generally known as a ‘pseudo’ reference electrode which relies upon the large excess of the oxidizing species to establish a known potential at a noble metal electrode.” (Johnson Decl., Exh. 11 at 6:11-19.) Dr. Hill’s testimony equating the function of a pseudoreference with the combination of a reference electrode and a counterelectrode also suggests equivalency. (Hill Depo. at 93-94, Hutcheson Deck, Exh. 8A.) Finally, the evidence that Abbott has submitted indicating that Defendants themselves sometimes referred to the counterelectrodes used in their accused products as “reference” electrodes, although not a sufficient basis for reconsideration of the Court’s construction for the reasons discussed above, is certainly probative evidence that one of ordinary skill in the art might consider pseudoreference electrodes and reference electrodes to be interchangeable. In short, the Court finds that Abbott has provided sufficient particularized testimony and linking argument as to the insubstantiality of the differences between a pseudoreference electrode and a reference counterelectrode (as defined by the '745 patent) to create a triable issue of fact regarding infringement by equivalents. See Network Commerce, Inc. v. Microsoft Corp., 422 F.3d 1353, 1363 (Fed.Cir.2005). The Court disagrees with Bayer that Abbott’s infringement-by-equivalents argument violates the precept that the doctrine of equivalents cannot be used to vitiate an entire claim element. See Novartis Pharms. Corp. v. Abbott Labs., 375 F.3d 1328, 1339 (Fed.Cir.2004). Abbott’s theory of infringement by equivalence would not automatically read the “reference” part of the “reference counterelectrode” claim limitation out of the claim, because the evidence submitted by Abbott indicates that a pseudoreference counterelectrode has properties that make the potential of the pseudoreference more predictable and less variable than a mere counterelectrode. On this record, Abbott is not foreclosed from arguing that pseudoreference coun-terelectrodes are an equivalent to the “reference counterelectrode” claim limitation. Accordingly, there is a triable issue of fact as to whether there is infringement by equivalents by Bayer’s accused products of the “reference counterelectrode” limitation in the '551 patent claims. B. The “electrical contact” limitation. As an independent ground for a finding of noninfringement of the '551 patent, Bayer asserts that the undisputed record indicates that the two electrodes in Bayer’s accused products are not in electrical contact before the blood sample is applied. The Court disagrees. The asserted '551 claims all require that the active electrode not be “in electrical contact” with the reference counterelec-trode before the blood sample is applied. The Court, in construing this claim limitation, has determined that two items are in electrical contract if they are “positioned or connected in such a way that electricity can flow” between them. Here, Abbott’s expert, Dr. Johnson, has submitted testimony regarding experiments that measured the resistance between the two electrodes in the accused Bayer products. The tested Bayer products were commercial strips subjected to experimentation after they were removed from the vial in which Bayer sells them. (Alva Decl., ¶ 4.) Accordingly to Dr. Johnson, the experiment did not detect any resistance below 50 megaohms. (Johnson Decl., ¶ 62.) Dr. Johnson opines that one of ordinary skill in the art would expect the meter to provide a resistance measurement below this 50 megaohm threshold if there were an electrical connection between the two electrodes. (Johnson Decl., ¶¶ 62-63.) Bayer raises no argument in its motion that Dr. Johnson’s testimony regarding the resistance experiment is inadmissible or unreliable. The Court finds that, based on Dr. Johnson’s testimony, a reasonable jury could conclude that the two electrodes are not in electrical contact with each other before the blood sample is applied. Despite Dr. Johnson’s tests, Bayer contends that certain deposition admissions by Dr. Johnson, coupled with the tests of Bayer’s own expert, establish as an undisputed fact that there is an electrical connection between the two electrodes before the sample is applied. Bayer’s expert, Dr. Stetter, has submitted testimony that describes experiments that measured the flow of current between the two electrodes in the Bayer accused products under a variety of humidity and temperature conditions. (Stetter Decl., ¶¶ 28-30.) The current measurements ranged from — 5.4 pi-coamps (pA) to 48,111 pA for the Bayer Microfill, depending on temperature and humidity conditions. (Id., ¶ 30.) The current measurements ranged from — 14 pA to 43,534 pA for the Bayer Autodisc, depending on temperature and humidity conditions. (Id.) Although Dr. Johnson conceded in deposition that a current in the range of 5,000 pA would establish “electrical contact” between the two components (Johnson Depo. at 344:11-16, Bartlett Decl., Exh. 11), this current threshold was exceeded in Bayer’s experiments only under conditions in which the ambient humidity exceeded 75%. (Stetter Deck, Exh. E.) At lower humidity values of 25% or 50%, and for the Microfill product even at lower temperatures at 75% humidity, the measured current was below 2000 pA. (Id.) Though Bayer posits that its tests show that the reagent layer on the Bayer accused products provides an electrical path between the active and counterelectrodes even before blood is applied, the proper interpretation of the results of Bayer’s tests of its own products is not undisputed on this record. Bayer’s own data, together with Dr. Johnson’s alternative explanations for Bayer’s experimental results, raise triable issue of facts as to what conclusions can be drawn from Bayer’s tests. To begin with, Dr. Stetter himself admitted that the current measurements of less than 50pA are “unreliable or basically within noise.” (Stetter Depo. at 150:20-151:2, Hutcheson Decl., Exh. 11). All currents tested on the Bayer products at 25% humidity fell below this 50 pA “noise” threshold. (Stetter Decl., Exh. E.) Dr. Johnson’s analysis of these data points raises a question as to whether the measurements at higher humidity accurately reflected real-world conditions. (Johnson Decl., ¶ 69; Alva Decl., ¶ 5.) Moreover, Dr. Johnson’s testimony suggests that the sharp, twenty-fold jump in measured current that occurred only when 75% humidity conditions were imposed may merely be a form of ionic current that occurs when the reagent layer absorbs enough moisture from the air, rather than an electrical connection that is always present. (Johnson Decl., ¶ 70.) On this record, triable issues of fact remain as to whether the “electrical contact” limitation is satisfied by the Bayer accused products. The Court therefore cannot make a finding of noninfringement at the summary judgment stage based on this claim limitation. II. Roche’s Motion For Partial Summary Judgment Of Noninfringement. Roche seeks summary judgment of non-infringement with respect to the '745 patent for its accused product, the Aviva system. Roche contends that the Aviva does not infringe the'745 claims asserted against it (claims 1-5, 8, 11, 21-23, 28, 31 and 34) for two independent reasons: (1) no mediator is present on the Aviva test strip prior to touching the sample to the test strip; and (2) Abbott had no admissible evidence that the Aviva strip contains a measurement zone as defined by 14 the '745 patent. A. Mediator on the Aviva test strip. Each of the independent claims of the '745 patent — claims 1, 28 and 34—describe a method comprising multiple steps, wherein the first step is described as: “contacting a sample with an electrochemical sensor comprising: (i) an electrode pair ..., (ii) a measurement zone, and, (iii) an analyte-responsive enzyme and a diffusible redox mediator.” (Tyler Decl., Exh. 1.) In their March 30, 2006 Revised Joint Claim Construction Statement submission pursuant to Patent Local Rule 4-3, Abbott and Roche agreed this language means “[a]n electrochemical sensor, which includes two electrodes, a measurement zone, an analyte-responsive enzyme and a diffusible redox mediator, to which electrochemical sensor a sample is touched.” Abbott asserts literal infringement, but not infringement by equivalents, of this claim limitation. As a threshold issue, the parties diverge in their views of how the claim limitation, and even their agreed-upon construction, should be applied to the Aviva test strip. For purposes of Roche’s motion, it is undisputed that a diffusible redox mediator, .in the form of quinonediimine/phenyldia-mine, gets formed on the Aviva test strip once the blood sample contacts the nitro-soaniline precursor that is present on the test strips before sample application. However, Roche contends that the claim limitation requires that the sensor include a diffusible redox mediator before it is ever contacted by the blood. Therefore, Roche argues, there can be no infringement because Abbott is unable to prove that the Aviva test strip includes a diffusi-ble redox mediator before it comes into contact with the blood sample. Abbott disagrees with Roche’s reading of this claim limitation, and contends that this claim limitation does not impose any temporal restrictions. Thus, Abbott argues, the claim limitation is satisfied if at some point while the blood sample is in contact with the electrochemical sensor, the electrochemical sensor includes a diffusible re-dox mediator. Because there is no dispute for purposes of this motion that a diffusi-ble redox mediator is present in the Aviva sensor after the blood sample contacts the Aviva strip, but while the blood sample is still in contact with the strip, Abbott argues the claim limitation is met. Turning first to the parties’ agreed-upon construction, the Court disagrees with Roche that the agreed-upon construction clearly establishes a temporal limitation on when a mediator must be present relative to when the blood first encounters any parts of the electrochemical sensor. The parties’ agreed-upon construction of the claim term requires “[a]n electrochemical sensor, which includes two electrodes, a measurement zone, an analyte-responsive enzyme and a diffusible redox mediator, to which electrochemical sensor a sample is touched.” Although there is some ambiguity in the parties’ selected phrasing, this agreed-upon construction does not necessarily require that, at the first moment any part of the sensor and the sample are touched together, the sensor must already include a diffusible redox mediator. For example, if at “time zero” the sample encounters the sensor but the sensor does not yet include a mediator, and at “time one” the sensor includes a mediator and the sample continues to touch the sensor, the parties’ agreed-upon construction would appear to be satisfied by the event occurring at “time one.” There would, at “time one”, be an electrochemical sensor (now including the mediator) “to which electrochemical sensor a sample is touched.” The Court further finds that basic claim construction principles provide a strong reason to reject Roche’s assertion that the claim term requires the sensor to include a diffusible redox mediator at the time the blood sample first contacts the sensor. A necessary predicate to Roche’s interpretation is the assumption that the step of “contacting a sample with an electrochemical sensor” is an instantaneous event that occurs at a single point in time — namely, the point in time where the blood first encounters the sensor. Claim construction principles cut against this assumption. As Abbott persuasively pointed out at oral argument, interpreting the step of “contacting a sample with an electrochemical sensor” to encompass only a single moment in time would be flatly inconsistent with several of the dependent claims in the '745 patent. In particular, dependent claims 26, 29 and 37 claim a method “wherein the contacting step includes drawing the sample into the sensor through an opening at the edge of the sensor from the skin of the patient into the sensor and into the circular recess to contact the working electrode.” Dependent claims 32 and 35 claim a method “wherein the contacting step includes drawing the sample into the sensor through an opening at an end edge of the sensor strip from the sample on the skin of the patient into the sensor and first contacting a first of the working electrodes and then contacting a second of the working electrodes.” Thus, each of these dependent claims describe the contacting step as “including” multiple non-simultaneous events that occur even after the sample first contacts the sensor. It would be incongruous, and would render the '745 patent claims internally inconsistent, if the Court interpreted the contacting step as an event limited to a single point in time, as proposed by Roche. The Court is further convinced that Roche’s interpretation cannot carry the day because the Court finds no real support in the patent’s claims or specification for Roche’s interpretation of the “contacting step” limitation. At oral argument, Roche argued that the mention in dependent claims 32 and 35 of “first contacting” and “second contacting” sheds light on how the claim drafters intended to use the word “contacting” to refer to an instantaneous event. The Court parses these words differently. It is the use of the ordinals “first” and “second” in dependent claims 32 and 35 that narrow the relevant inquiry to specific points in time for purposes of those dependent claims. The same cannot be said of the phrase “contacting ... with”, which is used to described the contacting step and does not limit the step to a single point in time. The Court also cannot ascribe significant weight to the portions of the specification that Roche cites in its reply brief, which are all discussions of specific or preferred embodiments. ('745 patent, cols. 3:24-27, 9:57-58, 23:57-59 & 45:18-21.) It is not appropriate to read these aspects of preferred embodiments into the claim language. Accordingly, the Court is persuaded that the “contacting step” is not limited to a single point in time. Roche’s non-infringement argument presented in its motion therefore cannot prevail at summary judgment, because even under Roche’s version of how the Aviva strip operates, the claim limitation is satisfied as of the moment the mediator forms on the sensor, given that the blood sample is still contacting the sensor at that time. Once the mediator forms from a reaction of the blood sample and the precursor chemical, there is a sensor including a mediator “to which electrochemical sensor a sample is touched.” Because there is, at a minimum, a triable issue of fact as to whether the “contacting step” claim limitation in the '745 patent is met by the Aviva strip, summary judgment of noninfringement on this ground is not appropriate. B. “Measurement zone” limitation. As a second and independent basis for a finding of noninfringement, Roche contends that Abbott has identified no admissible evidence that the Aviva strip contains a measurement zone as defined by the '745 patent. The Court disagrees. The '745 patent claims describe a method for determining a concentration of glucose in a sample by using an electrochemical sensor comprising, inter alia, “a measurement zone positioned adjacent to the working electrode and the counter-electrode, wherein the measurement zone is sized to contain a volume of no more than about one microliter of the sample.” The inventors of the patent, acting as their own lexicographers, specifically defined the measurement zone as “a region of the sample chamber sized to contain only that portion of the sample that is to be interrogated during an analyte assay.” ('745 patent at 7:7-10.) The parties expressly stipulated to this definition of “measurement zone” during the claim construction process. With the parties’ agreed-upon construction as a backdrop, Dr. Bard’s expert testimony provides a factual basis upon which a reasonable jury could conclude that the Aviva test strip contains a measurement zone. Dr. Bard’s testimony correlates the concept of “sample that is to be interrogated” in the parties’ stipulated definition with sample that is placed in the electric field between the electrodes in the system. (Bard Decl., ¶ 23.) Dr. Bard then provides testimony that indicates a measurement zone is located within the Aviva test strip, whether the measurement zone is intended to be a geometric space that only approximates the sample that is placed into the electric field between the electrodes (Bard Decl., ¶ 49), or is more strictly drawn to correspond precisely to the sample placed in this electric field during measurement (Bard Decl., ¶ 53). Roche attacks the sufficiency of Dr. Bard’s testimony in several ways. First, Roche contends that Dr. Bard’s testimony fails to competently establish that the Avi-va strip includes a physical space that “contain[s] only that portion of the sample that is to be interrogated during an ana-lyte assay”, as required by the parties’ agreed-upon construction. To be sure, the portions of Dr. Bard’s testimony directed to his view that the measurement zone may be only a geometric space that “approximates the sample that is interrogated” (Bard Decl., ¶¶ 24, 49-52) may well suffer from this deficiency. However, Dr. Bard also offers a separate back-up analysis that competently indicates that even if the contours of the measurement zone are drawn to include exactly the sample in the sample chamber that is in the electric field, the Aviva test strip would still contain a measurement zone meeting the requirements of the '745 claims. (Bard Decl., ¶ 53.) The Court finds that this testimony raises at least a triable issue of fact as to whether the Aviva strip includes a physical space that “contain[s] only that portion of the sample that is to be interrogated during an analyte assay.” Dr. Bard concedes that, under his backup analysis, he cannot know the precise boundaries of all sides of the measurement zone in the Aviva test strip without performing a finite element analysis, which he has not done. (Bard Decl., ¶¶ 28-29, 53.) Roche suggests that this constitutes a failure of proof on Dr. Bard’s part, but the Court disagrees. Dr. Bard testifies as to how he can deduce the existence of a region of the sample chamber that contains only the portion of the sample that is to be interrogated, even though he has not identified its exact size or all of its boundaries. To prove infringement, the '745 patent claims do not necessarily require Abbott to establish the exact boundaries of the measurement zone, so long as it can prove by a preponderance of the evidence that there exists a zone that “contain[s] only that portion of the sample that is to be interrogated during an analyte assay” and that satisfies the other requirements placed upon the measurement zone by the '745 claims. Dr. Bard’s testimony provides a basis on which a reasonable jury could conclude there is a measurement zone in the Aviva test strip that satisfies the '745 claim requirements, and his testimony is not rendered insufficient merely because he cannot identify the precise contours of the measurement zone in all dimensions. Roche points to the testimony of its own expert, Dr. Weber, who opines that there is no measurement zone in the Aviva test strip based on his analysis that the only portion of the sample that is “interrogated” in the Aviva test strip is the sample to which the mediator can diffuse from the working electrode before the measurement is completed. (Weber Decl., Exh. 1 at 37-41.) Roche contends that Dr. Weber’s opinions of non-infringement are “un-rebutted” on this record (Reply at 9:16—17), but they are not. At a minimum, Dr. Bard’s testimony creates a triable issue of fact as to whether the sample that is “interrogated” in the Aviva test strip includes only that sample that encounters the diffusing mediator, or includes the sample that is located in the electric field between the electrodes during measurement. Dr. Bard’s testimony also specifically critiques several of Dr. Weber’s underlying assumptions as being inconsistent with the discussion of the measurement zone in the '745 specification (Bard Decl., ¶¶ 3 6—48), upon which a reasonable jury could rely to reject some or all of Dr. Weber’s ultimate opinions of non-infringement. The deposition testimony of another of Roche’s experts, Dr. Surridge, also provides a basis upon which a reasonable jury could reject some or all of Dr. Weber’s opinions, given that he indicated that some of the assumptions made Dr. Bard about the measurement zone were as- reasonable as the diffusion-based analysis provided by Dr. Weber. (Surridge Depo. at 414-46; Hutcheson Supp. Decl., Exh. A.) Accordingly, the Court finds that, on this record and using the parties’ agreed-upon construction, there is a triable of issue of fact as to whether the Aviva strip has a measurement zone. III. BD/Nova’s Motion For Summary Judgment Of Non-Infringement. In its motion for summary judgment of non-infringement, BD/Nova contends that the BD test strip does not infringe any of the asserted claims of the '745, '164, or '551 patents as a matter of law. A. The “non-flowing manner” limitation of the '164 and '745 patents. Abbott assert claims 16, 20, 22, 23, 26, 27, 34, 36-38, and 40 of the '164 patent, and claims 1, 3-5, 8, 11, 21-23, 26-30, 34, 37, and 38 of the '775 patent, against BD/ Nova. All of the asserted claims of the '164 and '745 patents require that the blood sample be held within the strip in a “non-flowing manner.” BD/Nova contends that because the blood sample within the BD test strip’s measurement zone flows for the entire measurement time, this claim limitation is not met by the BD test strip, and there is therefore no infringement of the '164 and '745 patents. In its August 31, 2006 claim construction order regarding the '164 patent, the Court construed “holding the sample in a non-flowing manner within the sample chamber of the analyze sensor” to mean that “the sample is not moving in the sample chamber during the measurement.” The Court determined that a sample that was even “flowing at a very slow rate” is “directly at odds with the plain and ordinary meaning of “non-flowing.” ” In its July 10, 2007 summary judgment order, the Court further indicated that this construction meant “something other than preventing the sample from leaving the measurement zone — it requires that ‘the sample is not moving in the sample chamber during the measurement.’ ” The undisputed record before this Court establishes that the blood sample within the working electrode well in the BD test strip has a convective flow during the measurement period. BD/Nova’s experts present competent evidence, in the form of both expert testimony and videotaped footage of experiments, that the blood sample within the working electrode well in the BD test strip exhibits a rotational swirling effect during measurement. (Durgin Decl., ¶¶ 7-13; Wilson Decl., ¶¶ 6-8 & Exhs. 2-7.) Abbott’s expert, Dr. Bard, does not dispute the methodology used in these observations and experiments. To the contrary, Dr. Bard conceded that these experiments showed that there is a “small amount of swirling” during measurement. (Bard Depo. at 483:11, Dahiya Decl., Exh. 6; see also id. at 475:14 (“It looks like, in that strip that I’ve seen, that there’s a slight swirling in the chamber”)). Dr. Bard concedes that this observed rotational swirling is not Brownian motion (id. at 490:13), and is not diffusion (id. at 490:15), but instead “appears to be a convective flow” (id. at 490:17). Against this backdrop, having reviewed the evidence submitted by Abbott, the Court concludes that Abbott has failed meet its burden of introducing evidence that would permit a reasonable jury to conclude that the sample is not moving in the sample chamber during the measurement. The sole evidence on which Abbott relies is the testimony of its expert, Dr. Bard. However, Dr. Bard’s testimony provides no evidence that could support a finding of infringement here. Dr. Bard’s stated opinion regarding the BD test strip in his declaration is that “[t]here is no bulk movement of the sample with respect to the sample chamber in Defendants’ test strips after they have filled.” (Bard Decl., ¶ 59.) Although Dr. Bard then purports to base this conclusion on observations that he made, the entirety of Dr. Bard’s testimony regarding any actual observations of BD test strips reads as follows: [I]f there were movement of the sample, one would expect to see movement at either end of the sample chamber where resistance to movement is lowest. However, I observed no such movement in any of Defendants’ test strips. Video Exhibits 1 and 2. Dr. Bard’s testimony is insufficient to create a triable issue of fact regarding the “non-flowing manner” claim element for at least two reasons. First, Dr. Bard’s ultimate opinion that “[t]here is no bulk movement of the sample to the sample chamber” is conclusory and insufficiently supported by foundational facts on this record. His declaration provides no information regarding the circumstances or conditions of any observations he made. Although his declaration references two video exhibits, it does not authenticate these exhibits, let alone describe the video’s origins, the circumstances in which the videos were made, or what the videos depict. (Bard Decl., ¶ 59.) Elsewhere, Dr. Bard’s declaration “incorporates by reference” pages 6-9 and Exhibits 3 & 5 of his infringement expert report (Bard Deck, ¶ 76), but even his infringement report does not provide any foundational facts regarding any observations that he conducted of the BD test strip, beyond the threadbare assertion in his expert report that he has “personally observed the accused strips filling_” (Bard Decl., Exh. 3 at p. 6.) Dr. Bard’s testimony contains no other facts regarding the circumstances of his “observations.” Dr. Bard therefore fails to lay an adequate foundation for his ultimate conclusion that “[t]here is no bulk movement of the sample with respect to the sample chamber”, because he provides no information regarding the circumstances or procedures or experimental conditions in which he observed the BD test strips. On this record, a jury could not reasonably regard Dr. Bard’s opinion as grounded in reliable data. A jury therefore could not reasonably rely on either Dr. Bard’s observations of the BD test strip or on his ultimate conclusion that there is no bulk movement of the sample with respect to the sample chamber in the BD test strip. This leaves Abbott with a complete failure of proof. Second, and more fundamentally, even if a jury could reasonably rely on Dr. Bard’s opinions, his testimony makes clear that his observations and conclusions do not speak to the question of whether the sample is moving within the sample chamber during the measurement. His testimony is therefore insufficient to establish that this claim limitation, as construed by the Court, is met. Dr. Bard’s ultimate opinion is limited to the observation that “the bulk sample itself is not moving” (Bard Decl., ¶ 60) and to the question of whether there is “bulk movement of the sample with respect to the sample chamber” (Bard Decl., ¶ 59). Importantly, Dr. Bard nowhere opines that there is not movement of the sample within the sample chamber. He opines, merely, that there is not “bulk movement” because he observed no movement of the sample “at either end of the sample chamber.” (Bard Decl., ¶ 59.) His expert report further confirms that his opinion was premised on his observation that “there is no discernable flow into or out of the sample chamber” (Bard Decl., Exh. 3 at 7) and “no movement of the bulk sample in the thin capillary chamber during the measurement” (Bard Decl., Exh. 3 at Exh. 5, at 3). Such testimony about bulk movement of the entire sample, based on whether the sample was flowing into or out of the sample chamber at the edges, does not create a triable issue of fact as to whether the sample is moving within the sample chamber, particularly given Dr. Bard’s frank admissions at deposition that he observed “swirling”, which he equates with “convective flow” and “mass transfer”, within the sample chamber. A reasonable jury would have to find, on this record, that there is convective flow in the sample in the working electrode well during measurement, and could not reasonably infer otherwise from Dr. Bard’s conclusions, even if a reasonable jury considered those conclusions to be based on reliable observations. Dr. Bard’s opinions concerning the use of Cotrell-type measurements in the BD test strips also do not create a triable issue of fact. Dr. Bard’s declaration itself concedes that Cotrell-type measurements would still work where there is “minimal” convective flow. (Bard Deck, ¶ 61.) At deposition, he also agreed with the statement that “you can have a system with a small amount of convection in the system and the Cotrell equation will still apply.” (Bard Depo. at 494:21-24; Supp. Dahiya Decl., Exh. 29.) Finally, Dr. Bard’s opinions concerning the meaning of the Court’s claim construction, even if admissible, would not prevent a finding of non-infringement. Dr. Bard opines that the Court’s construction should not be read so expansively as to exclude all motion, since Brownian motion and diffusion are present in every liquid. (Bard Decl., ¶ 60.) The Court need not resolve this issue to resolve the motion, however, because Dr. Bard has conceded that the motion observed in the active electrode well of the BD test strip is neither Brownian motion or diffusion, but is convective flow.. Even if Brownian motion and diffusion within the sample chamber should not be precluded by the Court’s construction, the convective, swirling movement that Bard has conceded exists in the BD test strip is enough to remove the BD test strip from the literal scope of the asserted '164 and '745 patent claims. Because Abbott raises no argument that there is infringement under the doctrine of equivalents, summary judgment of non-infringement is appropriate on this record. B. The “measurement zone positioned adjacent to the working electrode and the counter electrode” limitation of the '745 patent. As an alternate basis for summary judgment of noninfringement of the '745 patent, BD/Nova contends that the BD Test Strip’s measurement zone is not adjacent to the counter electrode, and therefore there can be no infringement of the '745 patent. In its April 27, 2007 claim construction order, the Court construed the '745 claim limitation “measurement zone positioned adjacent to the working electrode and the counter electrode” to mean “the measurement zone is next to (whether or not touching) both the working electrode and counter electrodes, with no other structure intervening between either electrode and the measurement zone.” The parties have stipulated, based on an express definition in the '745 patent, that the term “measurement zone” means “a region of the sample chamber sized to contain only that portion of the sample that is to be interrogated during the analyte assay.” (Dahiya Decl., Exh. 11 at 7:7-9.) With the parties’ agreed-upon construction as a backdrop, Dr. Bard’s expert testimony provides a factual basis upon which a reasonable jury could conclude that the BD test strip’s measurement zone is adjacent to both electrodes. Dr. Bard’s testimony correlates the concept of “sample that is to be interrogated” in the parties’ stipulated definition with sample that is placed in the electric field between the electrodes in the system. (Bard Decl., ¶ 23.) Dr. Bard then provides testimony that indicates a measurement zone is located within the BD test strip, whether the measurement zone is intended to be a geometric space that only approximates the sample that is placed into the electric field between the electrodes (Bard Decl., ¶ 35), or is more strictly drawn to correspond precisely to the sample placed in this electric field during measurement (Bard Decl. ¶ 76 and Exh. 3 at 7-9). Dr. Bard further testifies that the measurement zone in the BD test strip contacts the surface of both electrodes. (Bard Decl. ¶ 52 & Exh. 3 at 7-9.) BD/Nova attacks the sufficiency of Dr. Bard’s testimony in nearly identical ways as does Roche. For the same reasons discussed above, the Court finds that Dr. Bard offers competent testimony that even if the contours of the measurement zone are drawn to precisely include exactly the sample in the sample chamber that is in the electric field, the Aviva test strip would still contain a measurement zone meeting the requirements of the '745 claims, including being adjacent to the working electrode and the counterelectrode. (Bard Decl. ¶ 52 & Exh. 3 at 7-9.) Dr. Bard’s testimony provides a basis on which a reasonable jury could conclude there is a measurement zone in the Aviva test strip that satisfies the '745 claim requirements, and his testimony is not rendered insufficient merely because he cannot identify the precise contours of the measurement zone in all dimensions. BD/Nova’s expert, Dr. Wilson, opines that the measurement zone in the BD test strip is not adjacent to the counterelec-trode based on his analysis that the only portion of the sample that is “interrogated” in the BD test strip is the sample to which the mediator can diffuse from the working electrode before the measurement is completed. (Wilson Decl., ¶¶ 9-18.) But just as with Roche, the conflicting expert testimony creates a triable issue of fact as to whether the sample that is “interrogated” in the BD test strip includes only that sample that encounters the diffusing mediator, or includes the sample that is located in the electric field between the electrodes during measurement. Similarly, Dr. Bard’s testimony specifically critiquing a diffusion model as being inconsistent with the discussion of the measurement zone in the '745 specification (Bard Decl., ¶¶ 36-48) applies with equal force to several of Dr. Wilson’s underlying assumptions, and a reasonable jury could rely on Dr. Bard’s testimony to reject some or all of Dr. Wilson’s ultimate opinions of non-infringement. Accordingly, the Court finds that, on this record and using the parties’ agreed-upon construction, there is a triable of issue of fact as to whether the BD strip has a measurement zone that is adjacent to the working electrode and the countere-lectrode. C. The “reference counterelectrode” limitation of the '551 patent. BD/Nova contends that the BD test strip does not have a “reference countere-lectrode” as required by the asserted '551 claims (claims 1-4) and as construed by this Court, and therefore cannot infringe the '551 patent. BD/Nova raises two independent arguments in support of this contention. 1. Known potential relative to a standard. First, BD/Nova asserts that the counter-electrode in the BD test strip does not have a potential that is “known ... relative to a standard.” As with Bayer, Abbott concedes that the counterelectrode in the BD test strip is a pseudoelectrode, and that its potential varies significantly depending on the concentration of glucose in the sample. (Opp. at 9:15.) Once again, Abbott advances testimony by its expert, Dr. Johnson, that the potentials can nonetheless be calculated for a given glucose level based on assumptions about the accused products, and those calculations can be confirmed by experimentally-measured potentials. (Johnson Decl., ¶¶ 22-23.) Abbott’s literal infringement arguments against BD/Nova fail for the same reasons as against Bayer. A pseudoreference, having a range of potentials that can be estimated through calculation and confirmed by experiment, does not have “a known potential relative to a standard.” Moreover, Abbott concedes pseudorefer-ences fall outside the literal scope of the Court’s construction. Accordingly, summary judgment of no literal infringement is appropriate. 2. Insignificant variation in potential during measurement. Second, BD/Nova asserts that the potential of the BD test strip’s countere-lectrode varies by too much during the measurement to literally meet the claim construction’s requirement that it “maintains its potential with only insignificant variation during the measurement.” BD/ Nova cites to Abbott’s expert’s own experiments which indicate that the potential varied by 40mV (drifting from .31V to .27V) during the measurement. (Dahiya Decl., Exh. 19 at 8.) BD/Nova also cites to its own expert’s experiments which found an even larger variation, from as much as 59mV to 87mV depending on glucose concentration. (Wilson Decl., ¶ 24 & Exh. 8.) Abbott does not dispute these quantitative results. BD/Nova’s e