Full opinion text
ORDER RE POST-TRIAL MOTIONS JOSEPH C. SPERO, United States Magistrate Judge. I. INTRODUCTION In its complaint, Plaintiff Funai Electric Company, Ltd. (“Funai”) alleged that various Daewoo entities infringed the following six patents: 1) United States Patent No. 6,021,018 (“'018 patent”); 2) United States Patent No. 6,064,538 (“'538 patent”); 3) United States Patent No. RE37,332 (“'332 patent”); 4) United States Patent No. 6,421,210 (“'210 patent”); 5) United States Patent No. 5,815,218 (“'218 patent”), and 6) United States Patent No. 5,987,209 (“'209 patent”). Two Daewoo entities, Daewoo Electronics Corp., Ltd. and Daewoo Electronics Corp. of America, defaulted and default judgment was entered against them. The remaining defendants, Daewoo Electronics Corporation (“DEC”) and Daewoo Electronics America, Inc. (“DEAM”), continued to defend the action. On summary judgment, the Court held that the '332, '218 and '209 patents were not infringed, either literally or under the doctrine of equivalents. Questions relating to infringement and invalidity of the remaining patents, as well as the questions of willfulness and damages, were presented to a jury in a 15-day jury trial. The jury found that Daewoo willfully infringed the '018, '210 and '538 patents and that the '210 and '538 patents were not invalid. Based on the infringement, the jury awarded $7,216,698.00 in damages against DEC and $2,298,590.00 against DEAM. Daewoo now brings a Motion for Judgment as a Matter of Law or, in the Alternative, A New Trial (the “JMOL Motion”). Funai, in turn, brings post-trial motions seeking: 1) entry of a permanent injunction; 2) enhanced damages; 3) attorneys’ fees; and 4) costs and prejudgment interest. The Court’s rulings on the Motions are set forth below. II. THE JMOL MOTION In the JMOL Motion, Daewoo seeks judgment as a matter of law, or in the alternative, a new trial, on the following grounds: 1) the Court erred in finding, on summary judgment, that Daewoo’s products literally infringed the '018 patent; 2) no reasonable jury could find, based on the evidence presented at trial, that the accused products infringed the '210 patent under the doctrine of equivalents; 3) claims 1, 3, and 4 of the '538 patent are indefinite under 35 U.S.C. § 112 and claim 5 is either indefinite or not infringed or both; 4) the jury’s damages award is speculative and unsupported by the evidence; 5) there was insufficient evidence from which a jury could have concluded that Daewoo willfully infringed the patents at issue. A. Legal Standard on Motion for Judgment as a Matter of Law Pursuant to Rule 50 of the Federal Rules of Civil Procedure, a court may grant a motion for judgment as a matter of law (“JMOL”) against, a party on a claim or issue where the party has been “fully heard on [that] issue during a jury trial” and the court finds that a “reasonable jury would not have a legally sufficient evidentiary basis” to find for that party. Fed.R.Civ. P. 50(a) & (b). Where a party moves for JMOL in a case that has been tried to a jury, the court must determine whether “there exists evidence of record upon which a jury might properly have returned a verdict in [the non-movant’s] favor when the correct legal standard is applied.’’ Markman v. Westview Instruments, Inc., 52 F.3d 967, 975 (Fed.Cir.1995) (quoting Jamesbury Corp. v. Litton Indus. Prods., Inc., 756 F.2d 1556, 1560 (Fed.Cir.1985) (emphasis added in Markman)); see also White v. Ford Motor Co., 312 F.3d 998, 1010 (9th Cir.2002) (holding that on a Rule 50 motion, “[t]he test is whether the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to that of the jury”). Thus, the court must conduct two inquiries. Markman, 52 F.3d at 975. First, the court must determine the correct law. Id. Next, the Court must review the jury’s factual findings to determine whether they are supported by substantial evidence. Id. While the jury’s factual findings are given “substantial deference,” the legal standards the jury applies are considered de novo to determine, as a matter of law, whether the correct standards have been used. Id. B. Legal Standard on Motion for New Trial Even where the court finds that JMOL is not appropriate, it may order a new trial under Rule 59 of the Federal Rules of Civil Procedure. Rule 59 provides that a court may, following a jury trial, order a new trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed. R.Civ.P. 59(a)(1)(A). “Historically recognized grounds include but are not limited to ‘claims that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving.’ ” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir.2007) (quoting Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940)). The Ninth Circuit has held that a new trial may be granted “ ‘only if the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice.’ ” Id. (quoting Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 493, 510 n. 15 (9th Cir.2000)). In contrast to JMOL motions, in determining whether a verdict is contrary to the clear weight of the evidence, the court “has ‘the duty ... to weigh the evidence as [the court] saw it’ ” and may set aside the verdict even if it is supported by substantial evidence. Id. at 729 (quoting Murphy v. City of Long Beach, 914 F.2d 183, 187 (9th Cir.1990)). An award of damages may be set aside where it is “‘grossly excessive or monstrous, clearly not supported by the evidence or based only on speculation or guesswork.’ ” DSU Medical Corp. v. JMS Co., Ltd., 471 F.3d 1293, 1309 (Fed.Cir.2006). Where the court determines that a damage award is excessive, the court may either grant the motion for a new trial or deny the motion conditional on the plaintiff accepting a remittitur, that is, agreeing to pay a lesser amount of damages that the court considers justified. Fenner v. Dependable Trucking, Co., Inc., 716 F.2d 598, 603 (9th Cir.1983). “The proper amount of a remittitur is the maximum amount sustainable by the evidence.” Prendeville v. Singer, 155 Fed.Appx. 303, 304-305 (9th Cir.2005). C. The'018 Patent 1. Background The '018 patent is entitled, “Loading Mechanism for a Video Cassette” and “discloses a mechanical subsystem for a VCR that performs loading and eject operations — that is, the subsystem opens and closes the door of a VCR, and moves the unit’s cassette holder to and from the operating position.” Memorandum and Order, filed December 20, 2006 (“2006 Summary Judgment Order”) at 1-2, 2006 WL 3780715. Daewoo’s challenge to the jury’s verdict of infringement on the '018 patent turns on the Court’s construction of the claim term “opened,” as that term is used in claims 1 and 2 of the patent. In particular, Daewoo argues that the Court erred in finding, on summary judgment, that the “opened” claim limitation was met by Daewoo’s T-Mecha loading mechanism because its reasoning was inconsistent with its own construction of that claim term. As a result, Daewoo argues, the question of whether this claim limitation was infringed — either literally or under the doctrine of equivalents — was never presented to the jury. Nor was evidence introduced establishing infringement of that claim term, Daewoo asserts. Consequently, Daewoo argues, the jury’s verdict of infringement of the '018 patent is not supported by substantial evidence or alternatively, that it is against the weight of the evidence. Claim 1 of the '018 patent requires the elements of (1) a door, (2) a cassette holder, (3) a slide arm, (4) a holder gear drive, and (5) a door arm. Claim 1 provides, in part, “said door is opened before said cassette holder is moved when said cassette holder is moved to said initial position.” '018 patent col. 8:28-56. Claim 2 is dependent on claim 1 and adds a cam mechanism on the slide arm for driving the door arm. In its claim construction order, the Court construed the term “opened” in claims 1 and 2 of the '018 patent to mean, “moved from a closed position such that the door has cleared the cassette so that ejecting the cassette will not interfere with the door.” Claim Construction Order at 10. In adopting this construction, the Court rejected as overly narrow Daewoo’s proposed construction of “opened” as meaning “fully opened.” Id. at 7. The Court reasoned that Daewoo confused “opened” with “moved” and that nothing in the claims precluded the door from additional movement after the door was “opened.” Id. at 8. The Court acknowledged that in the preferred embodiment, there appeared to be no further movement of the door after it was “opened” but concluded that this was not a sufficient basis for finding that the claim term meant “fully opened.” Id. On the other hand, the Court rejected as overly broad Funai’s assertion that “opened” meant “to move from a closed position.” Id. at 8. Noting that one object of the patent was to prevent the problem of the cassette interfering with the door during the ejection sequence, the Court concluded that there would have to be at least enough movement of the door to ensure that it did not interfere with the cassette during ejection. Id. In its 2006 Summary Judgment Order, the Court concluded that Daewoo’s T-Mecha loading mechanism literally infringed the “opened limitation” of the '018 patent, rejecting Daewoo’s assertion that in the TMecha, this requirement was not met because it works by moving the holder from an initial position to an intermediate position and then to the play position. In rejecting Daewoo’s position, the Court reasoned as follows: Funai correctly argues that the T-Mecha device meets the second disputed limitation. Daewoo’s reasoning that “the door is not ‘opened’ before the cassette holder is moved” misreads the claim. The limitation simply requires that the door be “opened” — that is, that it begins to open — before the holder moves towards the initial position.... The accused products, in which the motion occurs in two steps, fulfills this limitation. It does not matter that the door does not move before the holder shifts from the play position to the intermediate position. The critical point, not disputed by the parties, is that when the holder is moved towards the initial position from the intermediate position, the door has already begun its opening motion. It bears repeating that the door does not need to have completely opened by this point, it only needs to have started to open. Id. at 13. In the JMOL Motion, Daewoo argues that the Court erred on summary judgment in finding that the “opened” limitation was infringed even though the door of the T-Mecha does not move before the holder shifts from the play position to the intermediate position. Daewoo states, “the ‘opening’ limitation, with its sequence of operations, is the ‘essence’ of the patent claim [and][t]here can be no literal infringement of the claim element if the door remains closed — or at best, only begins to open — before the cassette holder moves from the play position to the initial position (approximately one to two millimeters).” JMOL Motion at 5. In addition, Daewoo asserts that “[t]he Court’s statement that ‘the door does not need to have completely opened by this point, it only needs to have started to open’ is further legal error because it directly contradicts the Court’s own construction of ‘opened’ — namely, ‘moved from a closed position such that the door has cleared the cassette so that ejecting the cassette will not interfere with the door.’ ” JMOL Motion at 6. Finally, Daewoo argues that it is entitled to JMOL on this issue because prosecution history estoppel bars a finding of infringement under the doctrine of equivalents. Funai asserts that Daewoo’s challenge is procedurally improper, that the Court was correct in finding that the “opened” limitation was literally met by the T-Mecha mechanism and that even if the it were not met, the doctrine of prosecution history estoppel does not bar a finding of infringement under the doctrine of equivalents. 2. Whether the JMOL Motion is Procedurally Proper Funai asserts that Daewoo’s motion is procedurally improper because it is not a challenge to any finding made by the jury and therefore, it is outside the purview of Rule 50. Funai points to subsection (a)(1) of Rule 50, which allows courts to enter JMOL on issues that have been “fully heard” by the jury. Funai also cites the 2006 Advisory Committee Note, which explains that a JMOL motion is “only a renewal of the preverdict motion,” the purpose of which is to “inform[ ] the opposing party of a challenge to the sufficiency of the evidence and afford[ ] a clear opportunity to provide additional evidence that may be available.” Daewoo, on the other hand, cites to Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323 (Fed.Cir.2008) in support of its assertion that its request for JMOL on the basis of the Court’s legal error in the claim construction and summary judgment orders is proper. In Finisar, the Federal Circuit held that it could reverse the district court’s denial of a JMOL motion where the jury’s verdict was based on jury instructions regarding the construction of particular claim terms that the Federal Circuit found to be incorrect. 523 F.3d at 1333. The Federal Circuit reiterated the holding of Finisar in 800 Adept, Inc. v. Murex Securities, Ltd., 539 F.3d 1354, 1366 (Fed.Cir.2008), stating: When a patent infringement verdict is based on an incorrect claim construction, we reverse the trial court’s denial of a motion for judgment as a matter of law if no reasonable jury could have found infringement under the proper claim construction. In 800 Adept, as in Finisar, the court found that the jury’s verdict of infringement was a result, in part, of its reliance on an incorrect construction of a claim term. Here, in contrast to Finisar and 800 Adept, Daewoo’s challenge to the jury’s verdict of infringement of the '018 patent is not based on the jury’s application of an improper claim construction to the evidence presented. Rather, Daewoo challenges the court’s legal conclusion that a claim element was met, the result of which was that that issue was not presented to the jury at all. The question before the Court, then, is whether a jury verdict based on an improper claim construction may be challenged in a JMOL motion even though the jury did not actually apply the incorrect construction to the evidence in finding infringement. While neither Daewoo nor Funai has cited a case that is directly on point — and the Court has found none — the Court concludes that Rule 50 permits such a motion. As discussed above, it is established that a JMOL motion may be granted either to set aside a verdict based on insufficient evidence or to set aside a verdict based on an incorrect claim construction. The situation here falls within the latter scenario. Although it is true that the specific question of whether the “opened” limitation was met by the accused products was not “fully heard” by the jury, the jury was presented with the broader issue of whether Daewoo infringed the '018 patent. Accordingly, the Court concludes that Daewoo’s JMOL Motion is proper as to the '018 patent. 3. Whether the Court Erred on Summary Judgment in Finding Literal Infringement of the “Opened” Claim Limitation Daewoo challenges the Court’s conclusion on summary judgment that the TMecha literally meets the “opened” limitation of claims 1 and 2, asserting that the sequence of operations that is achieved through this limitation is the “essence” of the patent and cannot be met “if the door remains closed — or at best, only begins to open — before the cassette holder moves from the play position to the initial position (approximately one to two millimeters).” JMOL Motion at 5. Daewoo also suggests the Court applied a construction that was inconsistent with its earlier claim construction when it stated in its 2006 Summary Judgment Order that “the door does not need to have completely opened by this point, it only needs to have started to open.” The Court is not persuaded by Daewoo’s arguments. First, the Court rejects Daewoo’s argument that the T-Mecha cannot infringe the “opened” limitation because its loading mechanism moves the tape from the play position before the door is opened. Daewoo’s position is based on the use of the words “from said play position” in claim 1, which it argues should be construed to require that the door must be “opened” before the cassette is moved at all, that is, before it is moved from the play position to the intermediate position in the T-Mecha. When read as a whole, however, claim 1 does not impose such a requirement. Rather, it only requires that the holder drive gear start to drive the cassette holder from the play position “so that said door is opened befor[e] said cassette casset[t]e holder is moved when said cassette holder is moved to said initial position.” Therefore, the Court concludes that the finding of literal infringement on summary judgment was correct. Nor is the Court persuaded by Daewoo’s assertion that the Court applied an inconsistent construction of the term “opened” in its 2006 Summary Judgment Order. This assertion appears to be based on the fact that the Court stated in its order that the door needed only to have started to open when the holder in the T-Mecha is moved toward the initial position from the intermediate position. Yet this statement is not inconsistent with the Court’s construction of the claim term, which construes “opened” as meaning “moved from a closed position such that the door has cleared the cassette so that ejecting the cassette will not interfere with the door.” Further, while the parties appear to disagree as to whether, as a factual matter, the door is “fully opened” in the T-Mecha, they do not dispute that when the holder is moved from the intermediate to the initial position, the door is opened sufficiently to ensure that the cassette does not interfere with the door. Therefore, the Court rejects Daewoo’s challenge to the jury’s verdict finding infringement of the '018 patent. D. The'210 Patent 1. Background The '210 patent is entitled “Mechanism for Preventing Propagation of Driving Motor Noise and Vibration on a Tape Deck and Tape Deck Having the Same.” The '210 patent describes a structure used in VCRs to reduce the noise originating in the capstan motor. The capstan motor draws the tape past the video head so that the VCR can convert the information stored on the tape into an image displayed on television. The electrical noise produced by this motor, however, can degrade the video quality. To address this problem, the '210 patent describes a structure that uses a bearing holder made of “insulating material.” '210 patent, claims 1, 2, 5, 7 and 9. In its Claim Construction Order, the Court construed the term “insulating material” as “a material with poor electrical conduction that acts to suppress switching noise generated by pulse width modulation control of the direct driving motor, thereby suppressing the video screen and audio noise caused by electrical noise produced by the capstan motor.” Claim Construction Order at 23. In adopting this construction, the court rejected Daewoo’s argument that an “insulating material” must have specific resistance (resistivity) of 107 Ohm-cm or greater. Id. at 21-23. The court also declined to adopt Funai’s proposed construction, which defined “insulating material” as “a material that exhibits sufficiently poor conduction of electricity to suppress switching noise generated by pulse width modulation control of the direct driving motor.” Id. Subsequently, the parties brought cross-motions for summary judgment on the question of infringement of the '210 patent. In particular, Daewoo requested summary judgment of non-infringement on the basis that the accused products did not infringe literally or under the doctrine of equivalents. Funai requested summary judgment only as to literal infringement. The Court held that the Lexan bearing holders that were used in Daewoo’s accused products did not literally infringe. In reaching this conclusion, the Court rejected Funai’s assertion that the Court’s construction of the term “insulating material” was purely functional, that is, so long as the bearing holders suppressed switching noise, they must be made of an “insulating material.” Rather, the Court found that the claim construction required both that the bearing holders be made from material with poor electrical conduction and that they act to suppress switching noise. Because Funai had not cited to any evidence that Daewoo’s bearing holders had “poor electrical conduction” whereas Daewoo had pointed to testimony by its own expert that its bearing holders were made of conductive material, the Court concluded that this limitation was not literally met. On the other hand, the Court found that the question of infringement of the '210 patent under the doctrine of equivalents turned on disputed facts and therefore denied summary judgment on that question. The question of whether the '210 patent was infringed under the doctrine of equivalents was presented to the jury and the jury found that it was. Daewoo now challenges that finding, asserting that the jury’s finding is not supported by substantial evidence or alternatively, is against the weight of the evidence. According to Daewoo, the bulk of Funai’s evidence went to whether the Lexan bearing holders suppress switching noise rather than whether they have poor electrical conduction. Daewoo further asserts that the evidence showed that the Lexan bearing holders had “slight electrical conductivity” and that a person of ordinary skill in the art would not have found such bearing holders to be equivalent to bearing holders with “poor electrical conductivity.” 2. Whether the Jury’s Verdict Was Supported by Substantial Evidence or Was Against the Weight of the Evidence a. Legal Standard Under Doctrine of Equivalents A device may infringe under the doctrine of equivalents “if every limitation of the asserted claim, or its ‘equivalent,’ is found in the accused subject matter, where an ‘equivalent’ differs from the claimed limitation only insubstantially.” Ethicon Endo-Surgery, Inc. v. United States Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir.1998). In determining equivalence, Courts often consider “[wjhether a component in the accused subject matter performs substantially the same function as the claimed limitation in substantially the same way to achieve substantially the same result.” Id. However, “ ‘[equivalence ... is not the prisoner of a formula and is not an absolute to be considered in a vacuum.’ ” Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 24-25, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997) (quoting Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 609, 70 S.Ct. 854, 94 L.Ed. 1097 (1950)). In Graver Tank, the Court described the equivalence inquiry as follows: What constitutes equivalency must be determined against the context of the patent, the prior art, and the particular circumstances of the case.... In determining equivalents, things equal to the same thing may not be equal to each other and, by the same token, things for most purposes different may sometimes be equivalents. Consideration must be given to the purpose for which an ingredient is used in a patent, the qualities it has when combined with the other ingredients, and the function which it is intended to perform. An important factor is whether persons reasonably skilled in the art would have known of the interchangeability of an ingredient not contained in the patent with one that was. Id. (quoting Graver Tank, 339 U.S. at 609, 70 S.Ct. 854). The doctrine of equivalents may not be applied where it would “erase ‘meaningful structural and functional limitations of the claim on which the public is entitled to rely in avoiding infringement.’ ” Conopco, Inc. v. May Dep’t Stores Co., 46 F.3d 1556, 1562 (Fed.Cir.1994) (quoting Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 935 (Fed.Cir.1987)). Failure to meet a claim limitation, by itself, is not necessarily enough to “erase” or “vitiate” that claim element. Ethicon, 149 F.3d at 1317. As the Ethicon court noted, “any analysis of infringement under the doctrine of equivalents necessarily deals with subject matter that is ‘beyond,’ ‘ignored’ by, and not included in the literal scope of a claim.” Id. (emphasis in original). Thus, the relevant inquiry is whether the subject matter is “specifically excluded” from coverage such that its inclusion under the doctrine of equivalents is “somehow inconsistent with the language of the claim.” Id. b. Evidence of Equivalence In order to find that the accused products infringed the '210 patent, the jury had to find that the Lexan bearings used in those products were equivalent to bearings that used insulating materials. Daewoo argues that this finding was not supported by substantial evidence or alternatively, was against the weight of the evidence. It points to testimony by Funai’s expert, Dr. Kazerooni, that the Lexan bearings were “slightly conductive.” See Trial Transcript at 699: 24-25. It also cites testimony by the inventor, Dr. Higuchi, that “it would be a problem” if there were electrical conduction between the printed circuit board and the deck chassis, asserting that this means there cannot be any conduction between the two components. See Trial Transcript at 467: 1-5. The Court rejects Daewoo’s arguments and finds that the jury’s finding is supported by substantial evidence and is not against the weight of the evidence. First, the Court notes that Daewoo mis-characterizes Funai’s burden, suggesting that Funai was required to show that the Lexan bearing holders in the accused products have no conductivity whatsoever or, at a minimum, that Funai was required to show that the Lexan bearing holders had a resistivity of at least 108 Ohm-cm— the level of resistivity that is undisputedly considered “insulating.” See JMOL Motion at 12; JMOL Reply at 5. As to the former, there is no support for such a standard. The Court’s construction of “insulating” did not require that there be no conduction but rather, that there be poor conduction. Nor does Dr. Higuchi’s testimony indicate that there could be no conduction. Contrary to Daewoo’s assertion, Dr. Higuchi did not state that it would be a problem “if there was any conduction between the metal printed circuit board and the metal deck chassis.” JMOL Reply at 5 (emphasis in original). Rather, he simply testified that it would be a problem if there were conduction between the two components. This testimony is not inconsistent with the Court’s claim construction requiring an “insulating material” to have poor conduction. Further, Daewoo’s argument that Lexan does not meet the “insulating material” limitation because its resistivity is 1 to 100 Ohm-cm rather than 108 Ohm-cm is incorrect because Funai was not required to demonstrate that Daewoo’s devices literally infringed. Rather, Funai was required only to demonstrate that the accused bearings were made of a material that is equivalent to an insulating material. Applying this standard, the jury’s finding was supported by substantial evidence and was not against the weight of the evidence. Dr. Kazerooni testified at length regarding his conclusion that the T-Mecha’s bearings infringed the '210 patent and explained why he concluded that the Lexan bearings were equivalent to bearings with poor electrical conduction. Dr. Kazerooni testified that the '210 inventor solved the problem of noise associated with PWM control by replacing bearings that were usually made from metal with bearings made from a resin. Trial Transcript at 656-659, 672. He then explained what it means to have “poor electrical conduction,” testifying as follows: Dr. Kazerooni: Poor — electrical conductivity is usually being presented by a word called resistivity, so it’s [the] inverse of — resistivity of a material is really high [if] it resists to electrical conduct, that means poor electrical conductivity. If you have materials [in which] resistivity [is] really low, that means they are good conductive. Counsel: Now, in terms of resistivity, is this a black and white quality, either you’ve got a very high resistivity or very low resistivity? Could you just describe the possible values a material could have? Dr. Kazerooni: Materials show different behaviors, and they have a whole spectrum of numbers in terms of resistivity. Some materials have very, very small resistivity... .These are good conductors. Like metallic stuff, they have very low resistivity ... So resistivity of the materials is a range, is a spectrum. You can’t come up to say conductive, not conductive. It’s a range of numbers. It is [a] pretty large range. Trial Transcript at 695-696. Dr. Kazerooni illustrated his point with a chart reflecting the continuum of resistivity levels, from lowest (on the left side) to highest (on right side). Id. at 121 & Trial Exhibit 447. Dr. Kazerooni testified that metal, which is a “great” conductor of electricity, has a very low resistivity of 10 Ohm-cm. Trial Transcript at 698. Moving to the right side of the chart, the resistivity levels increase, first to materials with “good electrical conduction,” then to materials that “have a slight electrical conductivity” and then to materials with no conductivity at all. Id. Dr. Kazerooni explained that materials with “slight electrical conductivity” “show a very large resistivity.” Id. Turning to the specific properties of Lexan, Dr. Kazerooni testified that it has a resistivity of 1 to 100 Ohm-cm and thus fell on the right-hand side of the chart, in the category of materials with “slight electrical conductivity.” Id. at 699-700. He testified further that “that means the resistivity of a Lexan is about a million or a hundred million times more than metal. So that’s what ... puts Lexan materials way on the right-hand side.” Id. at 700. Dr. Kazerooni also cited to a National Science Foundation report — introduced into evidence as Trial Exhibit 86 — in which it is stated that “conductive resins with [electrical resistivity] ranging from approximately 10 to the second power Ohm-cm to 10 the minus one power Ohm-cm are used for slightly electrically conducting applications.” Id. at 703. Dr. Kazerooni testified that the National Science Foundation report was important to him because Lexan was a resin that fell within the range set forth in the report, further supporting his conclusion that Lexan is equivalent to a material with low electrical conduction. Id. at 704-705. In addition to his testimony regarding Lexan’s electrical resistivity, Dr. Kazerooni also testified about the tests he conducted to determine whether the Lexan bearings achieved a reduction in PWM noise. See Trial Transcript at 705-718. According to Dr. Kazerooni, he replaced the Lexan bearings with metallic bearings and compared the level of PWM noise. Id. He reported that the metallic bearings were noisy whereas the PWM noise went away when the Lexan bearings were used. Id. at 715-716. Daewoo does not point to evidence that rebuts Dr. Kazerooni’s testimony, either as to the relative resistivity of Lexan as compared to metal or as to the noise suppression achieved by replacing metal bearings with Lexan bearings. The only evidence it cites is testimony by its own expert, Dr. Rice, that it is generally agreed that insulating materials have a resistivity of 108 Ohm-cm and that Dr. Rice did not believe a material with resistivity of 100 to 102 Ohm-cm resistivity would be substantially similar in terms of its insulating properties. See Trial Transcript at 1664-1665. The Court concludes that the testimony of Dr. Kazerooni regarding the Lexan bearings used in the accused products provides substantial evidence to support the jury’s verdict and, in particular, its finding that the Lexan bearings met the “insulating material” limitation under the doctrine of equivalents. Accordingly, the Court rejects Daewoo’s request for JMOL that the '210 patent was not infringed. On the same basis, the Court concludes that the jury’s finding is not against the weight of the evidence. E. The'538 Patent 1. Background The '538 patent is entitled “Biasing/Erasing Oscillation Circuit for Magnetic Tape Recording Apparatus.” The invention described in the '538 patent relates to the magnetic heads that are used in VCRs to record, play, and erase the video information stored on the magnetic tape in the video cassette. The '538 patent contains six claims. Claims 1 and 5 are independent claims, while the remaining claims are dependent claims. Funai asserted that the accused products infringe, both literally and under the doctrine of equivalents, all the claims of the '538 patent except claim 2. The jury agreed, finding that Daewoo infringed claims 1, 3, 4 and 5 of the '538 patent. In the JMOL Motion, Daewoo argues that JMOL should be entered in its favor on the basis that claims 1, 3 and 4 of the '538 patent are indefinite under 35 U.S.C. § 112 and that claim 5 is either indefinite or not infringed. Daewoo’s position is based on the Court’s construction of the “series junction point” language found in claims 1 and 5 of the '538 patent, which Daewoo asserts is incorrect. Claim 1 calls for a “series junction point at least between said linear record erasing head and one of the entire-width erasing head and an inductive element.” Claim 5 calls for a “series circuit connecting in series through a series junction point said entire-width erasing head and said linear record erasing head.” The Court construed the language in claim 1 as follows: a point on said series circuit between (1) the linear record erasing head and the entire-width erasing head, (2) the linear record erasing head and an inductance element, or (3) the linear record erasing head and both the entire-width erasing head and an inductance element. Claim Construction Order at 18. In its summary judgment order, the Court held that the “series junction point” language in claim 5 “does not require that the series junction point must be between the two heads, but only that all three must be in series.” November 26, 2007 Summary Judgment Order at 68. Funai argues that the Court already rejected Daewoo’s invalidity attack on claim 1 (and thus dependent claims 3 and 4 as well) at the claim construction stage of the case and should do so again. Further, to the extent Daewoo challenges the validity of claims 1, 3 and 4 based on theories it did not raise before, Funai argues, these arguments have been waived. With respect to claim 5, Funai argues that Daewoo waived its right to bring an invalidity challenge when it expressly agreed prior to trial that it would not assert such a challenge. According to Funai, it relied on this representation when it agreed to withdraw claim 6 from the trial. Even if the Court were to consider Daewoo’s challenge on the merits, Funai argues, claim 5 is not invalid and is infringed. 2. Legal Standard on Indefiniteness The requirement that claims be sufficiently “definite” is set forth in 35 U.S.C. § 112, ¶ 2, which provides that, “[t]he specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.” “The definiteness inquiry focuses on whether those skilled in the art would understand the scope of the claim when the claim is read in light of the rest of the specification.” Union Pacific Resources Co. v. Chesapeake Energy Corp., 236 F.3d 684, 692 (Fed.Cir.2001). In order to “accord respect to the statutory presumption of patent validity,” a claim should be found indefinite “only if reasonable efforts at claim construction prove futile.” Exxon Research and Engineering Co. v. United States, 265 F.3d 1371, 1375 (Fed.Cir.2001). Thus, a claim is not indefinite simply because its meaning is not ascertainable from the face of the claim. Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1342 (Fed.Cir.2003). A claim is indefinite, however, if it is “insolubly ambiguous, and no narrowing construction can properly be adopted.” Id. (citations omitted); see also Omega Engineering, Inc. v. Cole-Parmer Instrument Co., 198 F.Supp.2d 152 (D.C.Conn.2002) (holding that where dependent claims required a center dot but independent claims from which they were derived precluded a center dot, former claims were invalid for failure to satisfy the definiteness requirement because claims were logically contradictory). 3. Claims 1, 3 and 4 Daewoo’s argument that claims 1, 3 and 4 are indefinite rests on two grounds. First, Daewoo asserts that the Court’s construction of the “series junction point” language is incorrect because it does not make sense grammatically. Second, it challenges the Court’s construction of the term based on the doctrine of claim differentiation, asserting that under the Court’s construction the scope of claim 2 is the same as claim 1. The Court finds both arguments to be unpersuasive. In construing “series junction point’ in claim 1, the Court looked beyond the claim language to the prosecution history as well as the specification to determine that the words “at least” modify the words “one of’ in claim 1. On this basis, the Court concluded that the claim language, though awkward, would be understood by one of ordinary skill in the art and was not insolubly ambiguous. The Court finds the reasoning offered in the claim construction order to be sound. Further, to the extent that Daewoo now presents an entirely new ground for arguing that claims 1, 3 and 4 are indefinite, based on the doctrine of claim differentiation, that argument is waived by Daewoo’s failure to include this theory in its invalidity contentions, as required under the Patent Local Rules. Daewoo’s theory turns on construction not only of claim 1 but also claim 2 of the '538 patent — a claim that has not been construed and was not addressed at trial. Therefore, the Court rejects Daewoo’s request for JMOL on the grounds of indefiniteness as to claims 1, 3 and 4. 4. Claim 5 Daewoo asks the Court to find that claim 5 of the '538 patent is invalid as indefinite and therefore, that that claim is not infringed. Daewoo does not dispute, however, that at the pre-trial conference meet-and-confer it agreed that it was not asserting invalidity based on indefiniteness as to claim 5. This agreement is evidenced by emails by both parties dated December 10, 2007. See Declaration of Michael J. Lyons in Support of Funai’s Opposition to Daewoo’s Post-Trial Motion for Judgment as a Matter of Law or a New Trial (“Lyons Decl.”), Exs. D & E. Given that Funai relied on this agreement in asserting only claims 1, 3 and 4 at trial, it would be improper for this Court to consider Daewoo’s challenge to claim 5. Accordingly, the Court rejects Daewoo’s argument as to claim 5. F. The Damages Award 1. Background At trial, Funai’s damages expert presented two possible methods of determining Funai’s damages. The first was a “mixed” framework that included a lost profit component and a reasonable royalty component, giving rise to total alleged damages in the amount of 11.3 million dollars. See Lyons Deck, Ex. Q. The lost, profit component of the mixed framework was based on evidence Daewoo sold 1.14 million accused units to Target and .24 million accused units to other customers, sales that Funai asserts it would have been able to make but for Daewoo’s infringement of its patents. Trial Transcript at 1284-85, 1327-1300. The statistic for sales to other customers was derived by Funai’s expert, who used a market share approach under which he estimated that Funai’s sales of VCRs in the United States account for 30% of all VCR sales. Id. at 1329. The alternative framework offered to the jury was based on reasonable royalties only, giving rise to total alleged damages in the amount of 2.5 million dollars. See Lyons Decl., Ex. S. Funai’s damage calculation used October 25, 2002 as the starting point for the calculation and spanned through 2006. The jury awarded $7,216,698.00 dollars in damages against DEC and $2,298,590.00 against DEAM. Daewoo challenges the jury’s damages award on the following grounds: 1) to the extent the jury’s award was based on alleged lost profits, it is not supported by the evidence in the record; 2) to the extent the jury’s award was based on a reasonable royalty theory, it is not supported by the evidence in the record; 3) the award must be reduced in light of evidence showing that Funai failed to comply with the marking requirement under 35 U.S.C. § 287(a) and actual notice of infringement was not given, as to some accused products, until the complaint was filed in this action. 2. Lost Profits a. Legal Standard To recover lost profits, a patent holder must demonstrate that “there was a reasonable probability that, but for the infringement, it would have made the infringer’s sales.” Minnesota Mining and Mfg. Co. v. Johnson & Johnson Orthopaedics, Inc., 976 F.2d 1559, 1577 (Fed.Cir.1992). In Grain Processing Corp. v. American Maize-Products Co., the Federal Circuit explained that this causation inquiry requires a “reconstruction of the market, as it would have developed absent the infringing product to determine what the patentee would have made.” 185 F.3d 1341, 1350 (Fed.Cir.1999) (citation omitted). The court continued: Reconstructing the market, by definition a hypothetical enterprise, requires the patentee to project economic results that did not occur. To prevent the hypothetical from lapsing into pure speculation, this court requires sound .economic proof of the nature of the market and likely outcomes with infringement factored out of the economic picture.... Within this framework, trial courts, with this court’s approval, consistently permit patentees to- present market reconstruction theories showing all of the ways in which they would have been better off in the “but for world,” and accordingly to recover lost profits in a wide variety of forms. Id. A patent holder may demonstrate lost profits by proving the following: (1) demand for the patented product, (2) absence of acceptable noninfringing substitutes, (3) its manufacturing and marketing capability to exploit the demand, and (4) the amount of profit it would have made. Minnesota Mining, 976 F.2d at 1577. Daewoo argues that Funai failed to prove the first, second and fourth factors, that is, demand for the patented product, absence of acceptable noninfringing alternatives and the amount of profits, b. Demand for Patented Product At trial, Funai sought lost profits on the accused products on the basis that consumer demand in the VCR market was attributable to the advantages that were offered by the patented inventions, invoking the “entire market value rule” in support of this approach. Under the “entire market value rule,” where an apparatus contains several features, a patent holder may recover damages based on the value of the entire apparatus where it can show that the basis for customer demand is the patented feature. Imonex Services, Inc. v. W.H. Munzprufer Dietmar Trenner GMBH, 408 F.3d 1374, 1379 (Fed.Cir.2005); see also Rite-Hite Corp. v. Kelley Co., Inc., 56 F.3d 1538 (Fed.Cir.1995). Daewoo challenges Funai’s lost profit analysis on the basis of Funai’s “complete failure to tie specific customer demand for the features actually claimed in the asserted patents,” that is, the sequential VCR load system claimed in the '018 patent, the use of PWM motor claimed in the '210 patent and the use of the biasing/erasing oscillation circuit claimed in the '538 patent. The Court finds Daewoo’s argument unpersuasive. As a preliminary matter, Daewoo applies the entire market value rule too narrowly. The cases on which Daewoo relies— Imonex and Rite-Hite—require that the patent holder demonstrate that demand is based on the “patented feature.” They do not hold that demand must be based on the specific device set forth in the claims. In other words, if customer demand is based on the advantages that arise from the claimed device, that is sufficient. Here, the jury’s verdict is supported by substantial evidence of such demand and is not inconsistent with the weight of the evidence. First, with respect to the '018 patent, Funai presented substantial evidence that demand for the accused products was based on the reduction in depth of the video cassette deck, which is one of the objects of the invention. See '018 patent, cols. 1:66-2:3. In particular, Funai offered testimony that use of the sequential loading mechanism in the accused products allowed Daewoo to reduce the size of both its combination and stand-alone VCRs. See, e.g., Trial Transcript at 1696-97 (testimony of Dr. Kazerooni that practicing the '018 invention allows for a smaller housing and that if Daewoo were not allowed to use the '018 invention in the T-Mecha, the housing would have to be bigger); 1134-38 (testimony of Funai IP Chief, Mr. Hida, that use of '018 patented invention allows for smaller printed circuit board and chassis in both stand-alone and combination VCRs). Funai also offered testimony that this reduction in size was the basis for customer demand. See, e.g., Trial Transcript at 1182, 1184 (testimony of Funai VP of Sales and Marketing, Mr. Padalino, that the small size of its VCRs was important to customers like Target, in part because of the limited space available in stores for electronics, and that if you didn’t have this feature, you would be disqualified); 317-18 (testimony of Funai’s VP of Marketing, Mr. Hashimoto, that size of VCR is a very important consideration for buyers because more VCRs could be fit in a crate if they were smaller). Second, Funai presented substantial evidence as to the '210 patent that customer demand was based on the high-speed rewind capability that is an object of the patent. See '210 patent, col. 1: 16-22 (referring to “speed-up” as an object of the patent). The inventor, Mr. Higuchi, testified that by using insulated bearing holders with a PWM motor, he was able to cut the time required to rewind from four minutes to two minutes. Trial Transcript at 454. He also testified that he had received requests for a high-speed rewind feature from customers such as Sharp, Mitsubishi, Hitachi and Philips. Id. at 452-453. Mr. Padalino also testified that the quick rewind feature was important to Funai’s customers. Id. at 1182. Similarly, Daewoo’s research engineer, Mr. Choi, testified that at the time the T-Mecha was being sold, “high speed rewind was required in the market.” Id. at 1430. Finally, Funai presented testimony by a retired general manager of Funai’s IP department, Mr. Mizoo, that Funai stopped using the '210 invention only because it developed a cheaper high speed linear motor that could rewind as quickly as the PWM motor. Id. at 1090. With respect to the '538 patent, Funai presented substantial evidence that customer demand was based on the cost reduction achieved by eliminating the need for an oscillating coil, an object of the '538 patent. See '538 patent, col. 2: 34-36. In particular, Funai’s expert, Mr. Bristow, testified that one of the primary benefits of the '210 invention was the cost savings it allowed, Trial Transcript at 921, while Mr. Hashimoto testified as to the extreme price sensitivity of the VCR market. Id. at 384. The Court finds that evidence is sufficient to support a finding that the cost reduction achieved by using the invention was a basis for demand. In sum, the Court concludes that there is substantial evidence in the record from which a jury could conclude that the patented features of the '018, '210 and '538 patents were the basis for customer demand and that such a finding is not against the weight of the evidence. c. Availability of Non-Infringing Alternatives Daewoo argues that Funai did not prove that there were no non-infringing alternatives as to the three patents the jury found were infringed and therefore did not prove that it was entitled to lost profits. The Court disagrees. For the reasons stated below, a reasonable jury could conclude that there were no available non-infringing alternatives. Such a conclusion is supported by substantial evidence and is not contrary to the weight of the evidence. In Grain Processing, the Federal Circuit explained that, in reconstructing a hypothetical “but-for” market, “alternative actions the infringer foreseeably would have undertaken had he not infringed” should be considered. 185 F.3d at 1350-51. The reason for this inquiry is as follows: Without the infringing product, a rational would-be infringer is likely to offer an acceptable noninfringing alternative, if available, to compete with the patent owner rather than leave the market altogether. The competitor in the “but for” marketplace is hardly likely to surrender its complete market share when faced with a patent, if it can compete in some other lawful manner. Moreover, only by comparing the patented invention to its next-best available alternative(s) — regardless of whether the alternative(s) were actually produced and sold during the infringement — can the court discern the market value of the patent owner’s exclusive right, and therefore his expected profit or reward, had the infringer’s activities not prevented him from taking full economic advantage of this right. Id. at 1351 (citations omitted). The relevant period for determining whether there was a non-infringing alternative is the period of infringement for which the patent owner claims damages, that is, the “accounting period.” Id. at 1353. Here, Funai presented evidence that there were no non-infringing alternatives as to all three of the patented inventions. As to the '018 patent, Funai pointed to the following evidence: 1) Dr. Hamahata’s testimony that in conventional VCRs, the movement of the door and the cassette housing was simultaneous and that as a result, VCRs that did not use the '018 invention (using a sequential mechanism) could not be made more compact because the door would collide with the cassette (see Trial Transcript at 400-403); 2) a side-by-side comparison of the accused products (using the sequential loading mechanism of the invention) with the FMMecha, which uses the sequential mechanism (see Trial Exhibits 26 and 1087); and 3) deposition testimony by Mr. Kang that while Daewoo created a design around that did not use the '018 invention, it did not use it because it was not economical to do so (see Trial Transcript at 573). Based on this evidence, the Court concludes that a jury could reasonably find an absence of non-infringing alternatives as to the '018 patent. With respect to the '210 patent, Funai points to testimony by the inventor, Mr. Higuchi, that the PWM motor was twice as fast with respect to rewind speed as the motors that were being used in conventional VCRs. See Trial Transcript at 452-454. Funai also points to Mr. Higuchi’s testimony that a linear motor with an equally fast rewind speed was not available at the time of the '210 invention and that although he subsequently invented one himself, he did so with difficulty. Trial Transcript at 453-454. Also, according to Mr. Higuchi, at the time of the '210 invention, no other company had been able to use PWM motors in their VCRs because they had been unable to solve the noise problems associated with such motors. Id. at 461. Finally, Funai points to the testimony of Mr. Kang that during the time that Funai was accusing Daewoo of infringing the '210 patent, Daewoo never replaced its Lexan bearing holders with metal bearing holders. See id. at 1631. Based on this evidence, the Court concludes that a jury could reasonably find an absence of non-infringing alternatives as to the '210 patent. As to the '538 patent, Funai points to Mr. Hashimoto’s testimony that the VCR market was very cost sensitive in support of its assertion that there were no acceptable non-infringing alternatives. See Trial Transcript at 384. Based on this evidence, the Court concludes that a jury could reasonably find an absence of non-infringing alternatives as to the '538 patent. d. Amount of Lost Profits Daewoo argues that Funai has not established the amount of lost profits by substantial evidence. In particular, Daewoo asserts that the evidence shows that Target chose Daewoo over Funai to supply its VCRs not because Daewoo infringed Funai’s patents but because Daewoo offered the most attractive package of products (many of which are not alleged to have infringed Funai’s patents) at the best price. In addition, Daewoo asserts, the evidence showed that Target consistently chose Daewoo over Funai for several years and that relations between Funai and Target were strained. Daewoo also challenges the market-share approach that Funai’s expert, Mr. Meyer, used in calculating damages. According to Daewoo, Mr. Meyer assumed that Funai’s market share for all of its VCR products — both stand-alone and combination VCRs — was 30% but the evidence in the record showing a 30% market share related only to stand-alone VCRs. The Court finds that Funai has pointed to substantial evidence with respect to the amount of lost profits, and that the jury’s determination of lost profits is not contrary to the weight of the evidence. First, Funai presented substantial evidence of the products it would have sold to Target but for the infringement. In particular, it offered extensive testimony by its Vice President of Sales and Marketing, Ernest Padalino, regarding the loss of the Target account to Daewoo. See Trial Transcript at 1170-1210. Second, with respect to Daewoo’s sales to other customers, Daewoo has not demonstrated that Funai’s market share approach is not supported by substantial evidence. At trial, Meyer testified that Funai’s market share “generally” is about 30%, citing to Funai’s sale of stand-alone VCRs as an example. See Trial Transcript at 1329. The fact that Mr. Meyer used standalone VCRs as an example to illustrate the 30% figure does not persuade the Court that the unrebutted opinion of Funai’s expert as to Funai’s general market share should be rejected as having no basis in fact. 3. Reasonable Royalty Pursuant to 35 U.S.C. § 284, a patent holder is entitled to no less than a reasonable royalty on an infringer’s sales for which the patentee has not established lost profits. Rite-Hite Corp. v. Kelley Co., Inc., 56 F.3d 1538, 1554 (Fed.Cir.1995). If there is no established royalty, the amount of a reasonable royalty may be determined with reference to a hypothetical negotiation. Id. “The hypothetical negotiation requires the court to envision the terms of a licensing agreement reached as the result of a supposed meeting between the patentee and the infringer at the time infringement began.” Id. Daewoo argues that Funai’s reasonable royalty analysis is not supported by the record for three reasons: 1) Funai did not present sufficient evidence in support of its expert’s use of the Fall of 2002 as a point of reference for the hypothetical negotiation; 2) Funai did not present sufficient evidence that use of the '210 patent offered any cost savings and therefore, the royalty rate of ten cents per unit that was used by Funai’s expert should be ignored; and 3) the evidence presented by Funai supports only a reasonable royalty of six cents per unit as to the '538 patent rather than the ten cents per unit used by Funai’s damages expert. The Court finds Daewoo’s arguments to be unpersuasive. First, Funai points to evidence that DEC took over the sale of Infringing products in October 2002, which supports the use of the Fall of 2002 as a point of reference for a hypothetical negotiation. Second, while Funai did not offer evidence of cost savings as to the '210 patent, it did offer testimony by its expert that cost savings are just one component of determining a reasonable royalty. Trial Transcript at 1340. Mr. Meyer testified that another factor that influences the amount a licensee is willing to pay is greater ability to obtain national accounts on products on the basis that they incorporate the patented technology. Id. This testimony supports Mr. Meyer’s determination that a reasonable royalty for the '210 patent was ten cents per unit. Finally, as to the '538 patent, although Daewoo presented evidence at trial that it was paying six cents per oscillator coil, see Trial Transcript at 1153, Funai’s witness, Mr. Hida, testified that he had determined through his own investigation that the average cost was ten cents. Id. at 1151. When asked why Daewoo was paying only six cents for the same part, Mr. Hida responded that the cost varies depending on the supplier, the quantity ordered, the delivery schedule and the qualities of the coil itself. Id. at 1154. Based on this evidence, the Court finds that there is substantial evidence to support a reasonable royalty rate for the '538 patent of ten cents per unit and that such a finding is not against the weight of the evidence. 4. Notice Under 35 U.S.C. § 287(a), a patentee is required to give constructive notice of its invention to the public by marking products that use the patented invention. In particular, Section 287(a) provides, in part, as follows: Patentees, and persons making, offering for sale, or selling within the United States any patented article for or under them, or importing any patented article into the United States, may give notice to the public that the same is patented, either by fixing thereon the word “patent” or the abbreviation “pat.”, together with the number of the patent, or when, from the character of the article, this can not be done, by fixing to it, or to the package wherein one or more of them is contained, a label containing a like notice ... 35 U.S.C. § 287(a). Section 287(a) further provides that where a patentee fails to mark its products that practice an invention, damages for infringement may be awarded only for infringement after the infringer has been given actual notice of the infringement. Id. The Federal Circuit has construed section 287(a) as requiring that where a patentee uses the patented invention, marking must be “substantially consistent and continuous.” Maxwell v. J. Baker, Inc., 86 F.3d 1098, 1111 (Fed.Cir.1996) (holding that marking requirement was satisfied even though 5% of product that was sold by licensees was not marked). This requirement applies also to licensees. Id. Where a third party that does not have a relationship with the patentee is practicing the invention, a “rule of reason” approach is applied. Id. Under that approach, the third party’s failure to comply is not conclusive of whether a patentee’s marking is “substantially consistent and continuous.” Id. Rather, the question is whether reasonable efforts were made to ensure compliance. Id. Compliance with section 287(a) is a question of fact. Id. Here, Daewoo argues that Funai did not comply with the marking requirement as to any of the three patents at issue. Daewoo further asserts that Funai’s damages must be limited because it did not give actual notice of infringement until April 3, 2003 and then, only listed two products as infringing in its letter to Daewoo. a. '018 patent Funai presented evidence that 100% of its own products that used the '018 invention were marked. Trial Transcript at 1051 (Mizoo testimony). Its Original Equipment Manufacture (“OEM”) customers, however, did not mark their products, even though they contained the patented technologies at issue in this case. Id. at 1051. Accordi