Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND MEMORANDUM OPINION MATHY, United States Magistrate Judge. Pursuant to the consent of the parties filed on November 6, 1998, in compliance with Fed.R.Civ.P. 52, 56 and 65, the Court enters the following Findings of Fact and Conclusions of Law and Memorandum Opinion in connection with the combined evidentiary hearing on plaintiffs motion for issuance of a preliminary injunction and claims construction hearing, which began on August 30, 1999 and concluded on September 17, 1999. As discussed below, this Order also decides other issues raised by defendant’s motion for summary judgment and plaintiffs motion for partial summary judgment. I. JURISDICTION The Court has jurisdiction over plaintiffs claims that defendant- has infringed its patent, 28 U.S.C. §§ 1331, 1338(a) and 2201(a), and over defendant’s counterclaim for declaratory judgment that plaintiffs patent is invalid and not infringed by defendant, 28 U.S.C. §§ 1338(a), 2201 and 2202. Venue is proper under 28 U.S.C. § 1400(b). II. PROCEDURAL HISTORY This case concerns claims of- alleged patent infringement. Data Race, Inc. (“plaintiff’ or “Data Race”) filed its original complaint and motion for issuance of a preliminary injunction on August 18, 1998 alleging that defendant Lucent Technologies, Inc. (“defendant” or “Lucent”) has infringed one of its patents, United States Patent No. 5,764,639 (“ ’639 patent”); misappropriated confidential and proprietary information in breach of contract and theft of trade secrets; violated the Sherman Antitrust Act; and engaged in unfair competition. Among other allegations, Data Race averred that Lucent Technologies’ operation of Lucent’s Internet Telephony Server for Enterprises (“ITS-E”) with Lucent’s Virtual Telephone application infringed the ’639 patent used in plaintiffs competing product marketed under the name “Be There!” On September 17, 1998 the Court set a September 25, 1998 hearing to address plaintiffs request for expedited discovery and defendant’s request to stay the case pending arbitration. The September 17 Order also called upon plaintiff to file an advisory on or before September 22, 1999 to inform the Court whether it wished to proceed with an evidentiary hearing on its motion for preliminary injunction on September 25. On September 21,1998 defendant filed an advisory informing the Court that defendant had decided not to offer Virtual Telephone for general distribution and that no release date had been selected. On September 22, 1998 plaintiff filed an advisory in which it withdrew its request for a preliminary injunction. Therefore, the September 25, 1998 hearing did not address the issuance of a preliminary injunction. Following the September 25 hearing, on October 2, 1998, the undersigned issued a report to the District Court recommending, inter alia, that plaintiffs motion for expedited discovery and defendant’s motion for stay pending arbitration each be denied. With specific respect to plaintiffs motion for preliminary injunction and in reference to plaintiffs advisories, the undersigned recommended that the portion of the Complaint that had been construed as a motion for preliminary injunction be denied without prejudice to plaintiff “filing a separate motion for a preliminary injunction with a request for an evidentiary hearing after it has obtained the preliminary discovery which it believes it is required to support its application.” On October 27, 1998 the District Court accepted that report. That same day, plaintiffs first amended complaint, which asserted only claims of patent infringement, the “live” complaint at issue in this case, was filed. Lucent had answered plaintiffs first amended complaint on October 19, 1998 asserting the defenses of non-infringement, invalidity (for anticipation and obviousness) and unenforceability (for inequitable conduct) and asserting a counterclaim for declaratory judgment of non-infringement and invalidity of the ’639 patent. On August 3, 1999 plaintiff filed its renewed motion for issuance of a preliminary injunction. In sum, plaintiff argues that after plaintiffs’ first request for preliminary injunction, Lucent shifted the Virtual Telephone application from the original hardware platform (the ITS-E server) to a different platform, the MultiMedia Communications Exchange (“MMCX”) server, release 3.0, and decided to offer the Virtual Telephone for sale in conjunction with the new MMCX release 3.0 server. Plaintiff argues that the Virtual Telephone continues to infringe the ’639 patent because the elements of the invention claimed in the ’639 patent are included in the MMCX, release 3.0, with the Virtual Telephone application. Plaintiff requests a preliminary injunction to prevent Lucent from “making, using, selling or offering to sell its ... [MMCX] ... server, release 3.0, which includes a Virtual Telephone application (“Virtual Telephone”).” Plaintiff asserts infringement of claims 1, 14 and 39 of the ’639 patent. Lucent argues, in sum, that Data Race’s request for a preliminary injunction should be denied for five reasons. First, Lucent argues that Virtual Telephone does not infringe the ’639 patent. Second, Lucent argues that even if there is infringement, the MMCX server, including the concept and technology for the Virtual Telephone, was invented prior to the date plaintiff filed its patent application and, therefore, the ’639 patent is invalid. Third, Lucent argues that the ’639 patent is invalid under 35 U.S.C. § 102(a) and (e) because it was anticipated by the prior art and under 35 U.S.C. § 103 because, in light of the prior art, it would have been obvious to a person of ordinary skill in the art at the time of the claimed invention. Fourth, Lucent argues that the ’639 patent is unenforceable due to plaintiffs inequitable conduct before the United States Patent and Trademark Office (“PTO”). Fifth, Lucent argues that plaintiff has failed to demonstrate irreparable harm because the harm plaintiff alleges is compensable in money. Between August 30, 1999 and September 17, 1999, the Court held an evidentiary hearing on plaintiffs’ motion for preliminary injunction. Prior to the hearing, the parties filed Markman briefs, proposed claim construction statements, a joint proposed claim construction statement, and briefing on the requested preliminary injunction. Prior to the hearing, the parties stipulated to the admission of most of the evidence. At the hearing, three witnesses testified for plaintiff: Dr. W.B. Barker and Kenneth L. Witt, two of the three inventors of the ’639 patent, and plaintiffs expert witness, Scott O. Brad-ner. Defendant called four witnesses: Bryan S. Katz, Alan J. Literati, Richard S. Vidil and defendant’s expert, Dr. Stephen Weiss. At the close of defendant’s case, plaintiff re-called Mr. Witt as a rebuttal witness. At the beginning of the hearing, Lucent made an oral motion pursuant to Fed. R.Civ.P. 65(a)(2) to consolidate the preliminary injunction hearing with the trial on the merits. Data Race opposed this motion on the ground that it had a right to a jury trial. The Court denied the motion to consolidate, ruling that Data Race had a right to jury trial if it could establish compensatory damages for its claim of infringement. Two motions were carried with the case: defendant’s oral motion for partial findings under Rule 52(c), Fed. R.Civ.P., made at the close of plaintiffs case-in-chief and defendant’s motion to strike the rebuttal testimony of Mr. Witt. At the close of the evidence the Court extended the time for the parties to file motions for summary judgment until October 1, 1999; ordered the parties to file proposed findings of fact and conclusions of law on or before October 4, 1999; and called for responses to any motions for summary judgment to be filed on or before October 8,1999. The Court has now reviewed the parties’ proposed findings of fact and conclusions of law, Lucent’s motion for summary judgment, Data Race’s motion for partial summary judgment and the parties’ responses thereto. For the reasons stated in this Order, the Court concludes that Data Race has not established a claim for damages and, therefore, summary judgment in favor of Lucent on damages is appropriate. Accordingly, because Data Race is not entitled to a jury trial on its remaining claim for injunctive relief, the Court may decide the remaining issues on the merits. The Court concludes that Data Race has not met its burden of proof that it is entitled to issuance of a preliminary injunction. Although, in the preliminary injunction context, Data Race has met its burden of showing a reasonable likelihood that Lucent cannot produce clear and convincing evidence that the patent is invalid, Data Race has not established reasonable likelihood that the MMCX, release 3.0 with Virtual Telephone infringes the ’639 patent. The Court further concludes that there is no genuine issue of material fact regarding the issue of infringement or, in the alternative, that judgment on the issue of infringement should be entered in favor of defendant. The Court also concludes that Lucent has not presented sufficient evidence to render as “plainly evident” the invalidity of the patent in suit. III. ISSUES 1. Has plaintiff satisfied its burden of proving entitlement to a preliminary injunction to prevent defendant from making, using, selling and offering to sell its MMCX server, release 3.0, which includes a Virtual Telephone application during the pendency of this lawsuit? 2. Is there a genuine issue of material fact with respect to plaintiffs request for damages on its claim of infringement? 3. Is there a genuine issue of material fact with respect to the issue of infringement or, alternatively, may judgment be entered on the issue of infringement? 4. Are Lucent’s defenses of invalidity and unenforceability “plainly evident”? IV. STANDARDS A. Preliminary Injunction Standards District courts are authorized by statute to issue preliminary and permanent injunctions in patent cases. Whether or not to grant a preliminary injunction against patent infringement involves substantive matters unique to patent law and, therefore, the law of the Court of Appeals for the Federal Circuit controls. As to purely procedural aspects of injunctions, such as whether there has been compliance with Fed.R.Civ.P. 52(a) and 65, the law of the regional circuit, that is, the Fifth Circuit Court of Appeals, controls. According to the Federal Circuit, the test for entitlement to a preliminary injunction has four parts. A preliminary injunction to stop allegedly infringing acts may be granted only if the patentee demonstrates: “(1) a reasonable likelihood of success on the merits, (2) an irreparable harm, (S) the balance of hardships tipping in the patentee’s favor, and (4) a tolerable effect on the public interest.” A preliminary injunction has been rightly described as a “drastic and extraordinary remedy” not to be routinely granted. Equity requires that “the district court must weigh and measure each factor against the other factors and against the form and magnitude of the relief requested.” No factor or circumstance may be ignored. If the preliminary injunction is granted, the weakness of the showing regarding one factor may be overborne by the strength of the showing on the others. If a preliminary injunction is denied, the absence of an adequate showing on any one factor can be sufficient to justify the denial, depending on the weight assigned the other factors. The Federal Circuit has stated that it is preferable that all factors be considered, but the first two factors — likelihood of success on the merits and irreparable harm — are central and “a movant cannot be granted a preliminary injunction without ... carrying] its burden on both factors.” The matter of preliminary injunc-tive relief is committed to the sound discretion of the trial court. The trial court’s decision will be overturned only upon a showing that it made “a clear error of judgment in weighing relevant factors or exercised its discretion based upon an error of law or clearly erroneous factual findings.” Findings of fact are reviewed under the clearly erroneous standard and conclusions of law are reviewed de novo. In patent cases, the Court’s analysis of movant’s likelihood of success on the merits focuses on the infringement and validity of the asserted patent claims. An infringement analysis consists of two steps. First, the court addresses, as a matter of law, the correct scope of the claims. Second, the court compares the properly construed claims to the accused device in order to determine, as a matter of fact, whether all claim limitations are present, either literally or by a substantial equivalent, in the accused device. B. Claim Construction 1. Timing Claim construction is a matter for the Court. The Markman decision established a court’s obligation to instruct the jury on the meaning of words used in a claim. It is not necessary for a court to construe definitively the patent claims when ruling on a motion for preliminary injunction. Nevertheless, in this . case, given the timing of the filing of the motion for preliminary injunction in the context of the filing of claim construction statements and briefs, and given plaintiffs representations that there are no non-damage related issues which were not presented in evidence at the preliminary injunction hearing, the Court concludes it is appropriate at this time to construe the disputed terms in claims 1, 14 and 39 of the ’639 patent even apart from its disposition of summary judgment issues. Indeed, the parties’ arguments to the Court anticipate that the Court will construe claims' 1, 14 and 39 at this time. 2. Priority of Evidence Claims are construed from the vantage point of a person of ordinary skill in the art at the time of the invention. In construing a claim, a court looks first to the intrinsic evidence of record, namely, the language of the claim, the specification, and the prosecution history. The claim language itself defines the scope of the claim and “a construing court does not accord the specification, prosecution history, and other relevant evidence the same weight as the claims themselves, but consults these sources to give the necessary context to the claim language.” In its discretion; the court may also look at extrinsic evidence: testimony from inventors and expert witnesses, dictionary definitions and treatises. Although extrinsic evidence may be considered if needed to assist the court in understanding the technology at issue or in determining the meaning or scope of technical terms in a claim, reliance on any extrinsic evidence is improper where the public record, that is, the claims, specification, and file history, unambiguously defines the scope of the claims. Competitors have the right to look at the public record and attempt to “invent or design around” a claimed invention. That right would be hollow if expert testimony can alter that record. Expert testimony, or other extrinsic evidence, including prior art, will be used only to aid the Court in understanding the claim, not to broaden the scope of the patent or to contradict the claim language, the specification or the prosecution history. It is well established that “claims must be interpreted and given the same meaning for purposes of both validity and infringement analyses.” Markman has led some courts to decline to consider prior art in interpreting claim language, reserving all such issues for the separate inquiry into validity. In this case, the Court looks to intrinsic evidence — the patent itself, including the claims, the specification and prosecution history — in defining the disputed claims. The claims define the scope of the invention. The Court has accorded the disputed terms their plain and customary meaning in the relevant art, unless it is clear from the specification and the prosecution history that the inventors accords the term an alternate meaning. A patentee may be Ms own lexicographer if the special definition of the term is clearly stated in the specification or prosecution history or when the specification defines a term by implication. Thus, the Court has reviewed the specification, which may act as a “dictionary,” either expressly or by implication. The portions of the prosecution Mstory in evidence also been reviewed and considered. The Court gives only limited consideration of “extrinsic” evidence, as noted expressly herein, such as dictionaries or expert witness testimony, to explain the terms of art or to address the parties’ contentions about the claims, but not to “vary or contradict the claim language” or to “contradict the import of other parts of the specification.” There is presumed to be “a difference in meaning and scope when different words or phrases are used in separate claims.” There is a presumption against construing claims as being so similar as to “make a claim superfluous.” Although the Federal Circuit has held that claims should be read in view of the specification, the Court repeatedly has cautioned against limiting the scope of a claim to the preferred embodiment or specific examples disclosed in the specification. Claims and interpretation of the prosecution history is undertaken to sustain the validity of the claims, if possible, short of actually redrafting the claims. “The construction that stays true to the claim language and most naturally aligns with the patent’s description of the invention will be, in the end, the correct construction.” The figures in the ’639 patent may be considered “in the same manner and with the same limitations as the specification.” C. Summary Judgment Standards The applicable standard in deciding a motion for summary judgment is set forth in Fed. R.Civ.P. 56, which provides in pertinent part as follows: the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact. In an employment discrimination case, the Court focuses on whether a genuine issue of material fact exists as to whether the defendant intentionally discriminated against the plaintiff. A fact is material if it might affect the outcome of the lawsuit under the governing law. A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted. The movant on a summary judgment motion, in this case bears the initial burden of providing the court with a legal basis for its motion and identifying those portions of the record which it alleges demonstrate the absence of a genuine issue of material fact. The burden then shifts to the party opposing the motion to present affirmative evidence in order to defeat a properly supported motion for summary judgment. All evidence and inferences drawn from that evidence must be viewed in the light most favorable to the party resisting the motion for summary judgment. Thus, summary judgment motions permit the Court to resolve lawsuits without the necessity of trials if there is no genuine dispute as to any material facts and the moving party is entitled to judgment as a matter of law. When affidavits are used to support or oppose a motion for summary judgment they “shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Affidavits that are not based on personal knowledge or that are based merely on information and belief do not satisfy the requirements of Rule 56(e), and those portions of an affidavit that do not comply with Rule 56(e) are not entitled to any weight and cannot be considered in deciding a motion for summary judgment. Neither shall conclusory affidavits suffice to create or negate a genuine issue of fact. V. ANALYSIS With the foregoing principles on claim construction in mind, the Court makes the following background findings regarding the ’639 patent and Lucent’s accused device, and, thereafter, the disputed claim elements in claims 1, 14 and 39 of the ’639 patent. A. The Claimed Invention: The ’639 Patent Data Race is the holder of U.S. Patent No. 5,764,639 (the “ ’639 patent”), entitled, “System and Method for Providing a Remote User With a Virtual Presence To An Office.” The ’639 patent issued on June 9, 1998 based upon an application filed on November 15, 1995 and is generally directed to a system and method for enabling a remote user to maintain a “virtual presence” at a corporate office. Data Race claims infringement of three claims of the ’639 patent: claims 1, 14 and 39. The following is a summary of the key elements of the claimed invention described in those claims. The commercial embodiment of the claimed invention is a product called “Be There!” Claim 1 Claim 1 is an apparatus claim that describes a system that provides a “remote user,” which included a telecommuter, road warrior, branch office or remote small office with a “virtual presence” at the corporate office. According to the patent, “virtual presence” means a remote user’s ability to send and receive voice or data communications to and from the corporate office just as if the user were physically located in the corporate office. Thus, the remote user’s telephone mirrors the telephone the user has at the corporate office and provides the remote user with the same functions as the office private branch exchange (“PBX”), such as conference call, call forwarding and call transfer. The remote user also can access data applications on the office local area network (“LAN”) just as if the remote user were located at the corporate office. The system described in claim 1 includes a user communications device that is “adapted for coupling to a transmission media” which is defined to include the PBX, asynchronous transfer mode (“ATM”) networks, T1 lines and other types of transmission media, to include a normal telephone line or an Integrated Services Digital Network (“ISDN”) line (used for digital data and voice communications). The system described in claim 1 also includes a “virtual presence server” (“VPS”) “located at the corporate office” with “one or more connections for coupling to a telephony server and a local area network” and “one or more connections for coupling to transmission media.” The VPS is installed in the corporate office and connected to the “transmission media” (such as the PSTN), the office telephony server (such as the PBX) and the office LAN. The VPS allows a remote user to establish a “virtual presence” when the remote user dials into the VPS and establishes a connection over the “transmission media” with the telephony server and the LAN. Claim 1 provides that the communications device (such as a personal computer) of the remote user, after connecting to the VPS through “transmission media,” transmits “identification information” through the “transmission media” to the VPS. The VPS routes communications received by either the LAN or the telephony server “which are intended for the remote user of said user communication device” to the remote user over the “transmission media.” Claim 14 Claim 14 is a dependent claim of claim 1 and, therefore, incorporates the elements of claim 1 and adds some additional elements. Under claim 14, the “user communications device transmits communications including address information of said user communications device where said user communications device can be contacted.” The address information is typically the telephone number of the remote user. Under claim 14, the VPS uses the “address information” to “route” communications from the PBX or the LAN to the remote user over the “transmission media.” Claim 39 Claim 39 is a method claim. Claim 39 provides a method for providing a “virtual presence at a corporate office, wherein the corporate office includes a telephony server and a local area network, wherein the corporate office further includes a[VPS] which routes communications between the corporate office and the user communications device.” Claim 39 states that the “user communications device connect[s] to the [VPS] at the corporate office.” Claim 39 also states that the “user communications device connects] to the corporate office [LAN]”, that the “user communications device operates] as an extension of the telephony server in the corporate office” and that “the [VPS] automatically rout[es] ... communications from said corporate office to said user communications device.” B. The Accused Device; Lucent’s Virtual Telephone Lucent’s Virtual Telephone provides customers with the ability to use their computer as a telephone from a remote location. The Virtual Telephone application is a voice-only product. To access data applications from a remote location, the remote user must bring up a separate application on the computer screen. A premise of Virtual Telephone is that the remote worker will use other, readily available technology to access the office LAN and, thus, the Virtual Telephone user will be able to access data stored on the office computer or send e-mail at the same time as speaking on the telephone. The Virtual Telephone remote user must separately log into the LAN to access the LAN’s servers and their associated applications. The Virtual Telephone remote user is able to log into an e-mail server and send and” receive e-mails without running the Virtual telephone application. If the remote user desires to run the Virtual Telephone application after logging into the LAN, the remote worker must separately log into the MMCX server. The MMCX server is connected to the office LAN and the office PBX. There are no other connections. The MMCX is not connected to the transmission media, as that term is defined in the ’639 patent. Virtual Telephone uses “voice over internet protocol (IP)” which means that it turns signals into small digital packets or data packets that are placed on the office LAN and are treated like other data carried on the LAN. Those packets are then routed by devices on the LAN to a remote user who has signed on to the Virtual Telephone and has signed on to the office LAN from a remote location. To use Virtual Telephone from a remote location, a remote user must first establish a connection to the LAN by running standard remote access software to log into the office remote access server (“RAS”). After a connection is established between the remote user and the RAS, the RAS assigns the remote user’s device a temporary Internet Protocol (or “IP”) address that is used by the RAS to route communications to or from the remote user over the LAN. In the Virtual Telephone application, the PBX is manually administered to forward calls from the remote user’s office extension to the MMCX server over a trunk connection after a specified number of unanswered rings. This is sometimes referred to as a “coverage path.” After a Virtual Telephone remote user logs onto the MMCX server, a call that is intended for the remote user’s office extension is transferred to the MMCX server if the office extension is not answered. If the remote user is logged into the MMCX server, the MMCX server then “packe-tizes” the call, ie., it breaks the call into small packets of data and places the IP address received earlier from the RAS in front of each packet of data. The MMCX server then places the data packets onto the LAN. At that point, the call is a stream of data packets. It bears no resemblance to the analog signal that was originally sent to the MMCX server by the PBX. The MMCX server places all calls that it receives on the LAN. After placing the call on the LAN, the MMCX server has finished its job. In effect, the MMCX server acts as a gateway between the PBX and the LAN by turning voice calls received from the PBX into IP data packets that can be handled by the LAN. When the MMCX server places the call on the LAN, the call looks just like any other IP information addressed to the client, such as an e-mail. The LAN delivers the data packets to all the servers. The RAS then picks the data packets intended for its particular remote user off the LAN and routes them to that remote user. After the RAS sends the data packets across the transmission line to the remote user, the software in the remote user’s computer reassembles (or “un-packetizes”) the data packets and turns them into an analog voice call. The “soft phone” on the remote user’s computer screen rings, and the remote user can answer the phone by clicking on the computer screen. The remote user can talk to the caller by using a handset or headset connected to the computer. C. Claim Construction of Disputed Terms in the ’639 Patent Prior to the preliminary injunction hearing the parties submitted a joint claim construction chart which set forth each party’s proposed construction of the terms used within claims 1, 14 and 39 of the ’639 patent. During the preliminary injunction hearing, both parties presented evidence regarding the meaning of certain disputed terms in claims 1, 14 and 39. The Court finds that each term in claims 1, 14 and 39 is used consistently throughout the claims and the specification of the ’639 patent. The Court accepts the parties’ definitions on the undisputed terms as set forth in the parties’ joint claim construction chart, since these stipulated constructions comply with 35 U.S.C. § 112. The Court also accepts the parties’ definitions on the remaining disputed terms not discussed herein. The Court makes the following findings with respect to the material disputed terms which are to be construed in all claims as indicated herein. These terms, as construed, are the basis for the Court’s conclusions with respect to injunc-tive relief. “remote user” The ’639 patent defines the term “remote user” as follows: “the remote user may either be a telecommuter or a road warrior, or may be a resident in a branch office, also referred to as a remote small office” who accesses a corporate office from a physically distant location over a transmission media. The claimed invention described in claims 1, 14 and 39 provides a “remote user” with a “virtual presence” to a corporate office. The claimed invention can be practiced with connectivity between one or more remote users and the corporate office. The Court rejects plaintiffs proposed construction of “remote user” since it omits the reference to a resident in a branch office. “virtual presence” The term “virtual presence” means a remote user’s ability to send and receive voice and data communications to and from a corporate office with the full capabilities and user interfaces of the corporate office just as if the remote user were physically present in the corporate office. The term “virtual presence” is not commonly used in the relevant art. The Court looks to the intrinsic evidence, from the perspective of one of ordinary skill in the relevant art, to determine the meaning of “virtual presence.” The term' “virtual presence” is used in the “summary of invention” section of the ’639 patent: The present invention enables the concept of virtual presence or “telepresence” whereby a user at a remote location has the full capabilities and user interfaces of the corporate office just as if the user were physically located at the corporate office. Thus the telephone of the remote user mirrors the telephone the user sees at the corporate office, including substantially the same button configurations at substantially the same locations performing substantially the same functions. This language. shows that “virtual presence” entails full functionality of the office telephone and LAN from the remote location. The “summary of invention” states further: According to the invention, the remote user makes outgoing telephone calls, sends faxes, transmits data, sends email and performs internet access as if the remote user were physically present in the corporate office. Likewise, incoming calls, faxes, data transmissions and email received at the corporate office are routed to the remote user as if the remote user were physically present in the corporate office. Therefore, a coworker or external party who telephones the user at the corporate office is unaware that the user is actually not physically located at the corporate office, hut rather is at a remote location. The plain meaning of this language shows that “virtual presence” entails transparency from the outside, that is, a person calling the corporate office for the remote worker would be connected to the remote user without being able to perceive that the remote user is not in the corporate office. The joint claim construction chart indicates that plaintiff originally proposed this interpretation of “virtual presence”: “[t]he remote user transparently operates as if, and appears to a coworker or other party to be, physically located in .the remote user’s corporate office.” Plaintiff further highlighted the central feature of transparency in its opening statement, when arguing that if the office door of the remote worker were closed, the remote worker’s colleagues at the corporate office should not be able to tell that the remote worker was not in his 'office when a call was placed to the remote worker’s office phone. Two of the inventors, Dr. Barker and Mr. Witt,. testified, in sum, that virtual presence allows a remote user to appear to those interacting with him or her to be in the office. In the course of the preliminary injunction hearing, however,- plaintiff contended that the claims do not require transparency or, as characterized by plaintiff, “true virtual presence.” Plaintiff now argues that the ’639 patent “describes preferred embodiments in which the virtual presence server instructs the corporate PBX to automatically forward all calls to the remote user” but, in these embodiments, the caller with a display telephone .would be aware that the PBX had forwarded the call. Therefore, plaintiff argues, if virtual presence requires transparency, a preferred embodiment in the specification would not fall within the scope of the claims — an interpretation, plaintiff argues, is rarely, if ever, correct. Instead, plaintiff argues that a “reasonable impression” of transparency is all that is required. The words of the patent clearly indicate that transparency was part of the claimed invention. In addition, the specification repeatedly emphasizes the importance of transparency to the concept of virtual presence and defines “virtual presence” or “telepresence” to include transparency. This definition, if not dispositive, is highly relevant. Transparency is not at issue with respect to data communications. ' Transparency is at issue with respect to voice communications. Plaintiffs expert, Mr. Bradner, a person -with ordinary skill in the art, agreed at the preliminary injunction hearing that, under the words of the ’639 patent, a person who calls the office number of the remote user and whose call is transferred to a remote location should not be able to perceive that the remote worker is not in the office; therefore, if the forwarding of the call is apparent, it would be “incomplete virtual presence, at best” and that “virtual presence” “probably” is not present as that term is used in the patent. To practice the invention, the PBX must send calls to the remote worker in a way that insures transparency. “identification information” and “address information” The term “identification information” means specific information from the user communication device that identifies that specific device, its user and where the device is located, that is stored in the VPS and that is used by the VPS to determine if the data and voice communications received by the LAN or telephony server, respectively, are intended for the remote user and used by the VPS to route such data and voice communications to the remote user. The term “address information” means a designation of the identity of the user communication device sufficient to indicate where the user communication device can be contacted. The information is typically a telephone number. “Identification information” must have all of the following characteristics: (1) it must be “of said user communications device;” (2) it must be received by and provided to the VPS from the user communications device; (3) it must be used to determine if a communication from the LAN or PBX is intended for the remote user; (4) it must be used by the VPS to “route” communications received by the-LAN or PBX which are intended for the user communications device to the remote user communications device; and (5) it must provide the identity of the remote user. In sum, identification information identifies the remote user communications device and how the remote user’s computer can be contacted by the VPS. The only example of identification information provided by the ’639 patent is “caller ID” information in a description of “the preferred embodiment.” Mr. Bradner conceded that no other information is provided in the patent as to what is “identification information” although the patent allows that other types of identification information may be received. The specification distinguishes “identification information” from “security data” but does not preclude the possibility that security data could be included within identification information. Caller ID information may be sufficient for use as the identifier when the PSTN is the network between the VPS and the user communication device. But, if other networks are present, other identifiers would be necessary. One with ordinary skill in the art would consider that “identification information” used in routing data in an IP network may include an IP address, but, as Bradner conceded, cannot consist only of an IP address. An IP address alone cannot meet the first and fifth criteria listed above and does not meet the third and fourth criteria with respect to voice communications. Moreover, the ’639 patent expressly claims an embodiment of the VPS that disconnects from the remote user and then reconnects to the remote user when the remote user receives a call at the office; and IP address alone cannot be used to call the remote user and reestablish a connection between the remote user and the VPS. Significantly, the PTO distinguished prior art in which the “identification information” was an IP address, indicating that the examiner concluded that an IP address alone was not “identification information.” The term “address information” as used in claim 14 is similar to “identification information” found in claims 1 and 39. “Address information” refers to the identifier portion of identification information that indicates the identity of a user communications device sufficient to indicate where the user communications device can be contacted. Address information received from the user communications device is stored or placed into the memory of the VPS. The VPS accesses or retrieves the stored address information from its memory to route communications received by either the LAN or the telephony server to the remote user communications device over the transmission media. “routes” The term “routes” means to choose an appropriate destination from two or more possibilities and to direct based on that choice. The VPS routes by directing a voice or data communication meant for a particular remote user over the transmission media to the appropriate remote user communications device. Communications are “routed from either the telephony server or the [LAN] to said user communications device” by means of the “transmission media.” Routing implies a choice between alternative destinations. Although plaintiffs proposed construction requires “routing” to be based on “identification information,” and although a person with ordinary skill in the art would understand how an IP address is used in data routing, the patent does not specify a single method of routing. The term “automatically routes” or “automatically routing” as used in claim 39 means that routing, as defined above, is accomplished without the further intervention or instruction to the user communication device or by the remote user. “virtualpresence server (vps)” The term “virtual presence server” means a server located at the corporate office that executes software that enables the remote user to maintain a virtual presence at the corporate office by dialing the VPS and establishing a direct connection. The “summary of the invention” section of the ’689 patent states: “The [VPS] executes software that enables the remote user to maintain a virtual presence at the corporate office” by dialing the VPS and establishing a connection. Access from the remote user to the VPS is through the PSTN and not the LAN. After the remote user connects to the VPS through the PSTN, then the remote user connects to the LAN through the VPS. Access from the remote user to the telephony server is not through the LAN or RAS (remote access server) but directly through the VPS. Plaintiffs proposes a definition of VPS as a node on the LAN. With respect to data communications, the VPS may be a node on the LAN even though figure two to the patent suggests that the VPS is not connected directly to a LAN but connected to a LAN through a RAS. With respect to voice communications, a remote worker receives a call at a remote location when the call is sent from the PBX through the VPS. The LAN is not involved at all in the delivery of the call to the remote worker and, so far as voice is concerned, the VPS is not ever a node on the LAN. Accordingly, plaintiffs definition of VPS to mean an node on a LAN is not accepted. Plaintiff also suggests that the VPS must be capable of supporting more than one user at the same time. The definition of “remote user” makes it clear that a system that covers only one user is covered by the ’639 patent. The two testifying experts, Bradner and Weiss, people with ordinary skill in the relevant art, each agreed that a server can serve only one user and that the claimed invention could be practices by a system that supports only one remote user. “virtual presence server (vps) communications device” A virtual presence server communications device is a modem, ISDN adapter or similar device attached to the VPS that connects to the VPS through the transmission media to allow the remote user to dial up the VPS and establish a connection with the VPS through the connection media in order to transmit and receive communications. “coupling” or “coupled” The term “coupling” or “coupled” refers to the direct connection of two or more circuits or systems in such a way that power or signal information may be transferred from one to the other. Lucent proposes that “coupling” or “coupled” requires a direct connection. Plaintiff argues that this construction is contrary to a recent Federal Circuit case in which “coupled” was not limited to a mechanical or physical coupling. Rather, plaintiff argues that coupling merely requires an association such that information may be exchanged. Plaintiff further argues that if Lucent’s definition were accepted, the remote user could never “couple” to the VPS because of the numerous intermediate hops within the PSTN. Although the ’639 patent discusses “coupling] through a communication mechanism or channel” which, arguably, suggests intermediate connections or “hops,” the patent also discusses the VPS having “connections” that are adapted for “coupling” to a transmission media, the telephony server and the LAN and the patent refers to the user communications device as being adapted for “coupling” to the transmission media. These “couplings” imply direct connections between the elements, without unnecessary intervening connections between the elements, as illustrated by figure 2 of the patent, but do not exclude intermediate “hops” within an element, for example, within the PSTN. The direct connections also do not exclude the logical connections proposed by plaintiff. This construction is not inconsistent with the teaching of Johnson Worldwide Associates, Inc. “one or more connections for coupling to transmission media” The term “one or more connections for coupling to transmission media” means at least one point of connection to a transmission media such as the PSTN that is different from the “one or more connections for coupling to a telephony server and a local area network.” Claim 1 of the ’639 patent describes three connections: (1) a connection from the user communications device at the remote site to the VPS at the corporate office through the transmission media (e.g., PSTN); (2) a connection from the VPS to the telephony server (e.g., PBX); and (3) a connection from the VPS to the LAN. Claim 14, which is dependent on claim 1, necessarily requires the same three connections. Claim 39 describes the first connection. Plaintiff argues that even though the three separate connections are shown in the embodiments to the ’639 patent, claims 1 and 14 uses only the phrase “one or more connections for coupling” and that three distinct connections are not required. Plaintiff urges that the specific phrase “one or more connections for coupling” means only “at least one point of connection for a data communications path.” The Court cannot agree. The claims themselves require connections and the claims describe distinct connections. Claim 1 requires that the remote user dial up, using the transmission media (e.g., PSTN), the “virtual presence server communication device” (e.g., one or more modems or one or more ISDNs) to establish a connection with the VPS. The VPS is separately connected to the LAN and separately connected to the PBX. The connections are most significant to the ’639 patent in part because the examiner distinguished prior art based on the nature of the connections. D. Plaintiff Has Not Met Its Burden of Showing Entitlement to a Prelimi-narg Injunction Plaintiffs amended complaint and motion for injunctive relief asserts one claim: patent infringement. This claim will be examined in the context of plaintiffs burden of proof in seeking a preliminary injunction. 1. Reasonable Likelihood of Success on the Merits To establish a 'likelihood of success on the merits, a plaintiff seeking a preliminary injunction in a patent infringement suit must show that it' likely will be able to prove infringement and that it likely will be able to overcome any challenge to the validity or enforceability of its patent. In this case, the burden is always on the Data Race to demonstrate entitlement to preliminary injunctive relief, but such entitlement is determined in the context of the burdens that would inhere at a trial on the merits. Therefore, Lucent, the patent challenger, retains the burden of establishing invalidity and Data Race retains the burden of showing a reasonable likelihood that Lucent cannot produce clear and convincing evidence that the patent is invalid and, therefore, that the attack on the validity of the patent will fail. Title 35, United States Code, section 271 makes liable anyone who (a) “without authority makes, uses, offers to sell or sells any patented invention;” (b) “actively induces infringement of a patent”; or (c) “offers to sell or sells ... a component of a patented [invention] ... knowing the same to be especially made or especially adapted for use in an infringement of such patent____” As noted, “[a]n infringement analysis entails two steps: (1) the claims must be construed; and (2) the properly construed claims must be compared to the allegedly infringing device.” At the preliminary injunction stage, Data Race must show reasonable likelihood of succeeding on its claim that Lucent is infringing its patent. At trial, as a patentee, Data Race bears the burden of proving infringement by a preponderance of the .evidence. “To establish literal infringement, every limitation set forth in a claim must be found in an accused product, exactly.”' To establish infringement under the doctrine of equivalents, every limitation of the asserted claim or its equivalent must be found in the accused product or process and the “equivalent” differs from the claimed invention only insubstantially. The presumption of validity of a patent, being procedural and not substantive, does not alone create a presumption of irreparable harm. Rather, the presumption of validity acts as a procedural device to place the burden of going forward with evidence and the ultímate burden of persuasion of invalidity on the alleged infringer. It does not, in this case, relieve Data Race from the carrying the normal burden of demonstrating it likely will succeed on all disputed liability issues at trial. For the reasons discussed further below, the Court concludes that Data Race has not established a reasonable likelihood of success on the merits. Although, as discussed further below, the Court finds that Data Race has shown a reasonable likelihood that Lucent will not show that the patent is invalid, the Court also finds that Data Race has not established a reasonable likelihood that Virtual Telephone infringes the ’639 patent. Based on the findings herein, the evidence shows that: Virtual Telephone does not infringe any claim of the '639 patent because: (1) Virtual Telephone does not provide “virtual presence” as required by claims 1, 14 and 39; (2) Virtual Telephone does not have the connections required by claims 1, 14 and 39; (3) Virtual Telephone performs no “routing” as required by claims 1, 14 and 39; and (4) Virtual Telephone does not use “identification information” as required by claims 1, 14 and 39. Accordingly, the Court concludes that Data Race has not carried its burden of showing reasonable likelihood of success on the merits of its claim for infringement. Irreparable Harm Because Data Race has not made a clear showing that the ’639 patent was infringed, there is no presumption of irreparable harm. Moreover, even if Data Race had established reasonable likelihood of success on the merits (or to have prevailed on the merits of its infringement claim, as discussed further below), Data Race has not adequately proved irreparable harm that entitles it to injunctive relief. As a general rule, a preliminary injunction will be refused when the accused infringer is solvent and money will adequately compensate. There is no presumption that money damages will be inadequate. There is no evidence that Lucent is not solvent. The evidence shows that Lucent has never sold Virtual Telephone or offered it for sale. The four customers who are “beta” testing a version of Virtual Telephone have not purchased Virtual Telephone and cannot purchase it until Lucent makes each an offer to sell. Plaintiff relies on a portion of Mr. Katz’s deposition in which he stated, and then modified, his opinion that the MMCX with the Virtual telephone application had been offered for sale to the beta test customers. Katz’s unsupported subjective belief cannot take precedence over the written beta test contracts which expressly state that Lucent has not and may not ever offer the Virtual Telephone application for sale. Unlike the price quotation letters considered by the Federal Circuit in 3D Systems, Inc. v. Aarotech Laboratories, Inc., the beta test contract in evidence does not contain a fixed price term or even an offer to sell. As discussed further below, at the preliminary injunction hearing Data Race announced to the Court that it intended to pursue a theory of “corrective advertising” damages at the trial on the merits, but it conceded that Data Race had not undertaken any such advertising nor did it produce any evidence of Lucent’s advertising expenditures relating to Virtual Telephone that might illustrate how such damages might relate to Data Race’s harm. Additional evidence of corrective advertising damages have not been presented to the Court in response to summary judgment. With respect to “traditional” patent infringement damages, and as discussed further below, Dr. Barker testified that Data Race had no evidence that any losses incurred by Data Race in connection with Be There! were attributable to Lucent and that he could not identify any customer who refused to buy Be There! because of Lucent’s Virtual Telephone. Dr. Barker testified that Data Race encouraged the public and its own customers to try out Virtual Telephone because of its confidence that Be There! was a superior product. Even if the Court were to consider the declaration of Walter Bratic, submitted in opposition to summary judgment, in reference to this element of the test for a preliminary injunction, plaintiff has not met its burden. In sum, Data Race has produced insufficient evidence of damages or harm. Balance of Hardships Regarding this factor, the Court must balance the harm to the patent owner that will result from the denial of the preliminary injunction with the harm to the alleged infringer that will result if the injunction is entered. Plaintiff argues that the “negligible” cost to be incurred by Lucent if the preliminary injunction issues is outweighed by the harm to Data Race if the preliminary injunction does not issue. The Court cannot agree. Even assuming, arguendo, that Data Race has demonstrated a reasonable likelihood that Virtual Telephone is infringing, Data Race’s inability to identify any lost sale of Be There! or any quantifiable detriment to any customer relationship suffered by Data Race due to Lucent’s development of Virtual Telephone is key. Dat Race’s showing on harm must be balanced against the harm caused to Lucent by an injunction which would prevent if from continuing to test, perfect and bring to the competitive marketplace a product which, based upon the record in this case, is not infringing. Therefore, the Court concludes that Data Race has not met its burden of showing that the threatened injury it would suffer if injunctive relief did not issue outweighs the damage granting the injunction would cause to defendant. Tolerable Effect on the Public Interest Regarding this factor, the focus typically is on whether there exists some critical public interest that would be harmed by the grant of an injunction. Plaintiff argues that the public interest is served by protecting patents. The Court does not quarrel with this black letter statement of law and public policy. Data Race has not shown that denying the injunction will dis-serve the public interest in the facts and circumstances of this case. The public generally benefits from aggressive competition in the market place among non-infringing products. E. Plaintiff Has Not Established a Genuine Issue Regarding Damages Lucent has moved for summary judgment on plaintiffs claim for damages as a result of Lucent’s alleged infringement of the ’639 patent arguing that there are no disputed issues of material fact with respect to damages. In response, plaintiff argues that it is seeking both traditional compensatory damages and damages under a “corrective advertising” theory and that both aspects of their damages claim should be submitted to a jury for final resolution. Section 284 makes compensatory damages in an amount not less than a reasonable royalty available as a remedy for infringement. Traditionally, compensatory damages are proven by evidence of actual lost profits or an established or reasonable royalty. Data Race bears the burden of proving damages by a preponderance of the evidence. Prior to a discussion of whether plaintiff has sustained its summary judgment burden, the Court once again addresses plaintiffs changing positions on damages and the adequacy of the opportunity afforded plaintiff to conduct damages-related discovery. On May 14, 1999 defendant filed an advisory with the Court notifying the Court that Data Race was not at that time pursuing any relief other than injunctive relief. The advisory specifically indicated that Data Race “currently does not seek recovery or have any evidence of economic or monetary damages; and, although a claim for damages is pleaded in plaintiffs first amended original complaint for patent infringement, plaintiff seeks only permanent injunctive relief in this action.” At no time did Data Race contest that advisory. In reliance on the advisory, defendant did not pursue damages-related discovery from plaintiff. At the August 30, 1999 preliminary injunction hearing, Data Race announced that it intended to pursue a damages remedy and confirmed that it had served on defendant a second set of interrogatories regarding damages on Friday, August 27, 1999. Data Race acknowledged, in sum, that it had no evidence of lost profits or “traditional damages” but argued that the Court should allow plaintiff to prove compensatory damages under a “corrective advertising” theory or model. The immediate significance of Data Race’s assertion of a claim for damages during the preliminary injunction hearing related to Lucent’s request that the preliminary injunction hearing be consolidated with a trial on the merits. Date Race opposed the motion, arguing that it had a right to a jury trial on its request for damages. The Court denied the motion to consolidate, holding that Data Race had a Seventh Amendment right to a trial by jury on its claim for damages. The Court also declined to extend discovery in order to give Data Race additional time to collect evidence of damages. Although Data Race filed its original complaint, request for injunctive relief and request for expedited discovery in August 1998, Data Race apparently undertook no discovery focused on damages until Friday, August 27, 1999 when plaintiff served its second set of interrogatories. The answers to the interrogatory requests were not due until well after the expiration of the August 31, 1999 discovery deadline. The parties did not agree to conduct discovery after the expiration of the discovery deadline. Lucent proffered that the damages and accounting information plaintiff sought was voluminous. Had the Court allowed opposed discovery after the cut-off date, fairness would have required a reciprocal extension for defendant to pursue defensive discovery on damages, an action which, in turn, would have compelled a further continuance in the filing of dispositive motions and, likely, the trial. Data Race has not established a proper predicate to justify such actions. Data Race explains that it decided to revive its claim for damages when it learned of Lucent’s decision to shift the Virtual Telephone application from the ITS-E platform to the MMCX server and of Lucent’s plan to make Virtual Telephone “generally available” in mid-August, 1999. Plaintiff contends that it did not learn of these decisions until it took a deposition of one of Lucent’s representatives on July 22, 1999 and, thereafter, plaintiff decided to renew its motion for preliminary injunction and decided to pursue damages. Although it is well past summer 1999, there is no evidence that Lucent has made MMCX release 3.0 “generally available.” Moreover and more fundamentally, Data Race has not countered the facts which demonstrate that it knew in 1998 that Lu-cent intended to release an MMCX-based Virtual Telephone in the summer of 1999. Vidil’s af