Fail-Safe LLC v. A.O. Smith Corp. (744 F. Supp. 2d 831, 2010)

ORDER

J.P. STADTMUELLER, District Judge.

Litigation is often the story of regret, and the underlying facts in this case present the quintessential example of such a tale. Undoubtedly, the defendant, A.O. Smith Corporation (“AOS”), wishes it had never contacted the plaintiff, Fail-Safe LLC (“FS”), in 2002 regarding the safety device that FS had developed for use in swimming pools. Similarly, the plaintiff likely laments the fact that it never entered into a written agreement with AOS either formalizing the two companies’ relationship or, at the very least, protecting the confidentiality of the information FS was imparting to AOS in discussions with AOS representatives. Moreover, if FS could turn back the hands of time, it surely would have filed its complaint in this case sooner than April 11, 2008. (Docket # 1). In short, the instant case, as it stands today, is a product of a series of questionable business decisions by both sides, causing each respective party a considerable amount of angst and regret. Against this backdrop, the court must resolve the defendant’s January 5, 2010 motion for partial summary judgment (Docket # 121), the motion identified by all of the parties as the issue on the clerk’s docket that the court should first decide. (Docket # 186). This order will also discuss several other pending motions and the future course of this litigation. The court’s hope is that, through this order, the parties’ tale of regret will soon reach its final chapter. The court begins by noting the undisputed facts animating the defendant’s motion for summary judgment.

UNDISPUTED FACTS

This case centers on the two parties’ efforts to develop appropriate technology to effectively combat “pool suction entrapment” accidents. Pool suction entrapment occurs when a swimmer is trapped by the suction forces created by water rushing out of a drain in an artificial pool, such as a swimming pool, hot tub, or spa. Pool suction entrapment can be quite serious. During the period 1999 to 2009, the Consumer Product Safety Commission reported ninety-four incidents of “circulation entrapments, including 12 fatalities ... and 79 injuries.” See Kevin Gipson, 1999-2009 Reported Circulation/Suction Entrapments Associated with Pools, Spas, and Whirlpool Tubs, 2010 Memorandum, United States Consumer Product Safety commission, (May 24, 2010) http://www. cpsc.gov/library/foia/foialO/os/entraplO.pdf (last visited August 27, 2010). Threatened by costly litigation, the swimming pool industry, including the two parties, has endeavored to eliminate accidents caused by pool suction entrapment by developing a safety vacuum release system (“SVRS”), the general term used to refer to a drain entrapment release device. The court begins by discussing FS’s initial efforts to develop a successful SVRS.

A. FS, the FBSI, and the Suction Safe Pump

Founded in 1997 by Joe Cohen (“Cohen”), FS is a Colorado limited liability company that manufactures anti-entrapment devices. FS’s initial attempt at creating a SVRS was its Flow Blockage Suction Interrupt (“FBSI”) valve, a “mechanical valve” that operated by letting “air into [a pool’s] piping,” releasing the vacuum that was creating the suctioning of water and, in turn, releasing the bather. (PPFF ¶ 122). The FBSI valve was triggered “when the vacuum in a pool’s circulation system reache[d] a designated level.” (PPFF ¶ 122). However, the valve, by removing water from the pool’s piping, caused the well-pump motor in the pool to overheat, as “the heat of the motor running without water would damage or destroy the attached pump.” (PPFF ¶ 122). The flaw with the FBSI valve prompted FS to “approach” outside companies to seek a solution to the problem with the valve, including the Franklin Electric Company (“Franklin”). (DPFF ¶ 26).

Around 1987, Franklin had developed a technology called the “Pumptec,” later, known as the “Loadtec” (McAfee Dep. 16), that was used initially in jetted-bathtubs and in submersible wells. Franklin’s invention was an “underload sensing device” that would determine “when a pump ... [was] not running full,” such as when the water level in a jetted bathtub “didn’t cover the jets,” and would “shut down” the motor. (McAfee Dep. 13-14). “Franklin was awarded patents related to detecting the unloading of pump motors by measuring a decrease in the motor’s power factor.” (DPFF ¶ 18). The Loadtec product that was sold by Franklin in the “early 1990s” had a feature that allowed for a two-minute delay on start-up, (McAfee Dep. 25), and would shut off in response to “situation where the flow was blocked if the power factor dropped below” a certain trip point. Id. at 229.

FS hoped that it could use Franklin’s technology in conjunction with the FBSI valve to shut down a pool’s well-pump motor at the appropriate time. As a consequence, “FS and Franklin entered into a written agreement in July 1999,” (DPFF ¶27), where FS “aequire[d] the exclusive marketing rights of the Loadtec Technology with respect to swimming pool circulation pumps in order to sell a Franklin pump motor along with the [FS] valve as a complete safety package.” See Docket # 122 Ex. 16 (“Agreement Between Franklin Electric Co., Inc. and Fail-Safe, LLC for the License of the Franklin Loadtec Technology”). Several adjustments had to be made to Franklin’s technology to have it operate properly with FS’s valve. For example, a “soft-start feature” was added, which “slowed acceleration when the motor started up” in order to “reduce pressure spikes in the circulation system.” (PPFF ¶ 126). The nature of the other adjustments that were made to Franklin’s technology and who was responsible for such adjustments are disputed by the parties. It is undisputed, however, that the motor, as modified, contained a “startup logic delay, a means to detect loss of water flow, the use of a soft-start as applied to a swimming pool pump motor, and a means to enable pool pump motors to accommodate the varying electrical power level available to the pump.” (PPFF ¶ 135). The motor and valve collectively were known as the “Suction-Safe Pump.”

The Suction-Safe Pump was “offered for sale [to the public] beginning in 1999 and [was] demonstrated at trade shows.” (DPFF ¶ 29). The product was not terribly successful though, as the estimated sales for the device through 2003 were “approximately 300 to 350 units.” (DPFF ¶ 30). The Suction-Safe Pump “suffered from nuisance trips” (Pl.’s Resp. DPFF ¶ 31) and, in August of 2001, FS, in conjunction with Franklin, conducted tests on the altered load-sensor, finding the “trip points for hazards and the normal operating parameters to avoid shutting down [the motor] in the wrong circumstances.” (PPFF ¶ 131). Franklin independently tested the load-sensor “about two and a half months” after FS tested the product. (McAfee Dep. 222). However, despite FS’s and Franklin’s efforts, FS eventually stopped selling the Suction Safe Pump, and the exact reasons production stopped on the Suction Safe Pump are disputed.

B. AOS’s Initial Efforts at Creating aSVRS

The court briefly pauses its discussion of the undisputed facts regarding FS and its efforts to built an anti-entrapment device and shifts to the other party in this case, AOS. The defendant, a Delaware corporation with its principal place of business in Milwaukee, Wisconsin, manufactures motors for pool and spa pumps. AOS’s efforts in developing an anti-entrapment device began in late 2000. In November of 2000, William Mehlhorn (“Mehlhorn”), an engineer for AOS, and other representatives from the company attended an industry trade show in Orlando, Florida. Mehlhorn and the other AOS employees visited several booths at the trade show, including FS’s booth, witnessing demonstrations of devices “aimed at detecting suction entrapment events.” (DPFF ¶ 8-9). Upon witnessing the demonstrations from the other companies, Mr. Mehlhorn “wondered] if [AOS] could” develop a similar SVRS device using electronic load sensors. (Mehlhorn Dep. 60). Mehlhorn’s thoughts developed into a “skunk works project” — a side project that, as Mehlhorn described in his deposition testimony, he would work on “about a day a month.” (Mehlhorn Dep. 60). The following year, 2001, Mehlhorn began crafting “schematics” and the physical “circuit boards” for a “pool pump suction detector,” that would “measure a motor’s power factor and shut-off at a certain amount of decrease in that power factor reading.” (DPFF ¶ 11). By the late spring of 2002, Mr. Mehlhorn had spent about eighteen days working on the SVRS project.

C. AOS and FS’s Initial Interactions

Around the same time period, Mike Metzler (“Metzler”), AOS’s marketing manager, “saw an ad [for FS’s products] in ... Pool and Spa News,” a trade publication. (Metzler Dep. 78). In April of 2002, intrigued by FS’s Suction-Safe Pump, as the product was “the only thing [he] saw ... in the pump market that was along the lines of’ complying with potential regulations regarding pool suction entrapment prevention, (Metzler Dep. 74), Metzler requested that AOS sales representatives ask the Colorado company about the product. Soon after, conversations between FS’s Cohen and AOS’s Metzler occurred. The exact subject matter of the initial conversations between Cohen and Metzler is disputed, but it is undisputed that those conversations: (1) did not result in any sort of formal arrangement between the parties; and (2) did not touch on the question of confidentiality regarding the information discussed between the parties.

Meanwhile, in May of 2002, AOS accelerated its efforts on Mr. Mehlhorn’s SVRS project, as Mehlhorn and his supervisor, Ron Bartos (“Bartos”), and Metzler, “visited Sta-Rite Industries in Delavan, Wisconsin, to discuss potential solutions to the suction entrapment problems facing the swimming pool industry.” (DPFF ¶ 12). The agenda for the meeting included “discussion on how Sta-Rite [understood] the current ‘anti-entrapment safeguard’ market conditions and future trends” and “Sta-Rite’s relationship with” FS. (PPFF ¶ 154). The parties agree that FS’s technology was discussed at this meeting.

That same month, Mehlhorn tested the well-pump motor he had been working on, with a “test setup consisting] of [the motor] and a barrel of water.” (PPFF ¶ 142). Later tests were performed using a horse trough. During testing, although the exact date is disputed, Mehlhorn, after “rigorous analysis,” concluded that the pump’s “input power,” as opposed to its “power factor,” would be the most appropriate means to measure a motor’s load. (Mehlhorn Dep. 121-22). In October of 2002, AOS’s engineering department “recommended that [the pump protector circuit] be made a [formal] ‘project’ for 2003.” (PPFF ¶ 157). In the late fall of 2002, Mr. Mehlhorn “began working to design a circuit to economically measure motor input power.” (DPFF ¶ 16). Mehlhorn, in his sworn testimony, identified schematics from the spring of 2003 that displayed the preliminary “circuit developments” used to create a device that measured motor input power. (Mehlhorn Dep. 137).

In November 2002, the plaintiff “terminated” its relationship with Franklin, and “as soon as” FS signed the termination agreement, Mr. Cohen called AOS’s Metzler. (Cohen Dep. 10/21/09 218). After a few conversations between Cohen and Metzler, on January 6, 2003, Cohen wrote to the AOS executive to formally inform AOS that “after experiencing [a] 25% failure [rate] in the field with the Franklin Loadtec Motor, we have elected to notify Franklin Electric Company that we are terminating our agreement with them.” (Docket # 122 Ex. 18). Moreover, the letter stated that FS “would like to go forward with [AOS’s] development of [FS’s] pump-protector pool pump motor.” (Docket # 122 Ex. 18). The January 6, 2003 letter also included a short “description of several desired features of a pump protector motor that could be supplied by AOS.” (DPFF ¶ 37). The January 6, 2003 letter did not contain any discussion of confidentiality.

Mr. Metzler responded to Mr. Cohen’s letter on January 16, 2003, writing that AOS “would be pleased to work and develop concepts for suction entrapment with” FS. (Docket # 122 Ex. 19). Metzler further noted that AOS “already [has] some prototypes at [the company’s] Corporate Technology Center in Milwaukee.” Id. AOS’s marketing manager suggested a “meeting date to begin development together in 2003-2004.” Id. Additionally, Metzler proposed an “18-month exclusivity” period “once the first shipment occurs.” Id. Mr. Metzler closed the letter by stated that: “We look forward to setting a meeting date and beginning the process.” Id. Mr. Cohen stated in his deposition testimony that he “assume[d] that when [he] got a letter from a major corporation like [AOS] ... that [FS and AOS were] in a joint venture” and “had a fiduciary duty at that time.” (Cohen Dep. 10/21/09 221). No letters or documents stated that FS and AOS were actually in a joint venture at that time, nor can FS point to any words expressed by AOS to indicate that they were in a joint venture with FS.

D. AOS’s Efforts in Developing a Motor for FS

In the months that followed, FS and AOS had numerous conversations to discuss AOS developing a motor for FS. Mr. Cohen asserts that those conversations implied that the companies were “moving forward in a joint venture.” (Cohen Dep. 10/21/09 223) (“We discussed the fact that ... we were moving forward in a joint venture.”). Mr. Metzler testified that the conversations were “strictly” related to AOS “developing a motor for his pump.” (Metzler Dep. 85). On March 10, 2003, Mr. Cohen sent Mr. Metzler a letter described internally as a “project outline for the development of a new ‘Pump-Protector Motor,’ designed to eliminate common operational problems which are destructive to centrifugal pumps, as used for the circulation of water in aquatic facilities.” (Docket # 122 Ex. 17). The letter initially provided AOS “background” on FS’s history with Franklin, noting that the motor developed by Franklin was “unreliable, as 25% failed in the field,” and “required too much current to operate in normal conditions.” Id. The letter further “summarized FS’s desired features for a load-sensing motor,” (DPFF ¶ 40), such as “dry-run protection,” “soft-starting,” a “notched end bell,” “leak protection,” and a “corrosion-proof motor case.” (Docket # 122 Ex. 17). The letter also included over twenty pages of “test results of the Franklin Loadtec Pump Motor,” which included the “trigger points” for the Loadtec motor at which the motor would cease to operate. Id. The parties dispute what other information the test results provided. Mr. Cohen testified that, after he sent the March 10, 2003 letter, he discussed in more detail the data map with Mr. Metzler. (Cohen Dep. 10/21/09 223). Nothing in the March 10, 2003 letter indicates the letter or its accompanying test results were meant to be confidential. Moreover, FS does not provide any evidence that Mr. Cohen affirmatively told Mr. Metzler to treat FS’s information as confidential during any of their conversations. Additionally, nothing in the March 10, 2003 letter provides evidence of any sort of agreement to go forward with the project by the two parties.

On March 31, 2003, Mr. Cohen traveled to Milwaukee to meet Metzler and several of AOS’s engineers, including Jaime Watkins (‘Watkins”), Mr. Mehlhorn, and Mr. Bartos. During the meeting, FS’s president signed AOS’s “standard confidentiality agreement.” (DPFF ¶ 43). The confidentiality agreement pledged that FS, as a “supplier of research consulting services,” would “maintain confidential for a period of fifteen ... years from the date [of the agreement] all information” made available to FS by AOS. (Docket # 157, Ex. TT). Notably, there was no similar agreement requiring that AOS would maintain the confidentiality of information provided by FS to AOS, despite the fact that “FS, through Mr. Cohen, had entered into other various confidentiality agreements [protecting FS’s intellectual property rights] prior to his work with AOS.” (DPFF ¶ 99). FS, however, as it had done in its relationship with Franklin, opted to share information with AOS without a confidentiality agreement protecting the Colorado company’s information.

In addition to signing the confidentiality agreement at the meeting, FS shared information regarding what features the Colorado company thought “would be important ... to have in the” device, discussed the desired features of the product as outlined in the March 10, 2003 letter, and then had discussions with and made recommendations to AOS regarding the “hydraulic rationale for [the] features [in the device], how to correct [AOS’s] test stand, and how to test any prototype.” (PPFF ¶ 171). Moreover, the parties “discussed the features of the Loadtec at the March 31, 2003 meeting.” (PPFF ¶ 172).

The parties’ proposed findings focus considerably on Mr. Mehlhorn’s impressions regarding the March 31, 2003 meeting, presumably as evidence of the nature of the relationship between FS and AOS at the time of the meeting. The court notes before discussing Mr. Mehlhorn’s impressions of the meeting that Mr. Mehlhorn is an engineer for AOS and quite readily admitted in his testimony that he was “not familiar with business issues” at AOS. (Mehlhorn Dep. 157). AOS’s engineer stated in his deposition testimony that he “found out” at the meeting that “high fail rates” with the motors produced by Franklin created a “desire to get some kind of business relationship between the two companies,” prompting the meeting. (Mehlhorn Dep. 177-78); (PPFF ¶ 174). Mehlhorn answered affirmatively to a question asking him if it was “ever explained to you that you would be working with [FS] to develop” the pump protector motor. (Mehlhorn Dep. 158). However, Mr. Mehlhorn clarified his statement later in the deposition with the following dialogue:

Q Was your understanding that you were going to work together with Joe Cohen?

A In a sense, yes.

Q What do you mean by “in a sense”? A Well, he was going to test whatever we came up with, and he was going to provide the Franklin motor to kind of set up a baseline for what it is we needed to do, so there was definitely materials going back and forth.

Q And was it a — you know, were you jointly developing a particular product or — yeah, were you jointly developing a particular product?

A It was more on A.O. Smith to develop the motor to replace the Franklin.

Q Did you work together on any aspects of the circuit board?

A No.

Q Did Joe provide any input into the development of the circuit board?

A No.

(Mehlhorn Dep. 202) Mr. Mehlhorn later described the project as an endeavor where “AOS [was] preparing [a] product prototype for FS to replace the Franklin motor.” (Mehlhorn Dep. 220).

Following the March 31, 2003 meeting, Mr. Mehlhorn contacted Mr. Cohen to discuss “vacuum spike issues” and the “test stand.” (PPFF ¶ 177). With regard to the test stand, Mr. Cohen “suggested that AOS make the test stand adjustable to simulate different pump heights relative to the pool, increase the length of piping in its test stand, install a vacuum gauge, and add a valve to the suction side of the pump.” (DPFF ¶ 82). In doing so, Mr. Cohen noted the “technical standards promulgated by” the American Society of Mechanical Engineers (“ASME”) and the Association for Testing and Materials (“ASTM”) “related to the requirements for testing and implementing SVRS systems.” (DPFF ¶ 83). FS has not presented any evidence suggesting that Mr. Cohen told Mr. Mehlhorn that their conversations would be confidential.

In April of 2003, “Mr. Cohen provided AOS one of its publically available Suction-Safe pumps with a Loadtec motor for testing purposes.” (DPFF ¶ 46). Mr. Mehlhorn tested the Franklin motor “in April and May.” (PPFF ¶ 178). By August of 2003, Mr. Mehlhorn and Mr. Cohen discussed AOS’s efforts, contemplating “whether [a] product would be available in time for the next swimming pool season.” (PPFF ¶ 181). One month later, Mr. Mehlhorn “made arrangements to send a prototype [of the motor] to Mr. Cohen ... for testing on Cohen’s test stand.” (PPFF ¶ 182). In October of 2003, Mr. Mehlhorn continued to work on the project, recognizing “various mistakes and problems.” (PPFF ¶ 183). By late October 2003, Mehlhorn had reported to Mr. Cohen that a prototype of the motor “would be shipped to [FS] in a couple of weeks.” (PPFF ¶ 184). Mr. Mehlhorn also reviewed Franklin’s patents to ensure that there were “no patent infringement .issues.” Id. An inter-office weekly report dated October 31, 2003, from Mr. Mehlhorn to Mr. Bartos states that “as far as we know, all the functions Joe Cohen needs for his testing are operational.” (Docket # 157, Ex. C). There is no evidence that Mr. Mehlhorn was actively talking with upper-management at AOS, such as Mr. Metzler, at this time, nor is there any evidence that Mr. Mehlhorn knew at the time in question of the exact relationship FS had with AOS. (Mehlhorn Dep. 157, 220).

E. FS’s Proposal to Develop a Stand-Alone SVRS Motor

On September 22, 2003, Mr. Cohen wrote to Steve O’Brien (“O’Brien”), an executive at AOS, with the purpose of “communicating] a clear understanding of [FS’s] perspective of the swimming pool pump motor development project in progress between our companies.” (Docket # 122, Ex. 21). First, Mr. Cohen summarized the relationship of the companies to date, stating that because FS was “experiencing an untolerable [sic] failure rate with the Franklin motor, [the company] terminated [the] agreement with Franklin.” Id. FS’s president further stated that he had “contacted Mike Metzler,” who had “presented that [AOS] was ready and willing to immediately begin to develop [a] new swimming pool pump motor under [FS’s] direction” to replace the Loadtec motor. Id. Mr. Cohen also referenced Mr. Metzler’s January 16, 2003 letter and FS’s visit to Milwaukee. Next, the September 22, 2003 letter shifts focus, stating that Mr. O’Brien had “informed [Cohen] that [AOS] is interested in promoting” the product that they had been working on as a “life saving device,” as opposed to a “pump protecting device.” Id. Mr. Cohen then wrote that “if [AOS] is willing to market this new motor as a stand-alone ... SVRS ... [FS] would be very much in favor of that.” Id. Then, Mr. Cohen issued a formal “proposal to move forward and commercialize,” stating the following:

At this point in time, our companies will need to enter into a formal Agreement to proceed with the development of this pump motor as an SVRS. Presently, Fail-Safe has not granted any rights to AO Smith for the commercial use of any proprietary intellectual property, developed and owned by Fail-Safe, and there is no formal agreement in place between our companies.

Id. (emphasis added). Mr. Cohen concluded his letter by listing ten formal points to a potential agreement between the companies with respect to developing the pump as a SVRS.

F. The Decline of FS’s and AOS’s Relationship

It is unclear if AOS ever formally responded to Mr. Cohen’s September 22, 2003 proposal. Moreover, the parties dispute the exact nature of conversations that took place in late 2003. Mr. Schlanger testified that in “late December” Mr. O’Brien called Schlanger to tell him that, per a conversation with AOS’s legal department, the “project” invited “too much liability” and that AOS was “cancelling this project.” (Schlanger Dep. 275-76). Mr. O’Brien disputes that this conversation occurred and claims that in “early 2004” he was informed by Mr. Schlanger “that [FS] had chosen not to continue to invest in their valve.” (O’Brien Dep. 89). However, it is undisputed that in January 2004 Mr. O’Brien “asked Mr. Mehlhorn to not talk to [FS] anymore.” (PPFF ¶ 200).

Starring in January of 2004, a series of letters led to the demise of the working relationship between the parties. On January 2, 2004, Mr. Cohen sent a letter to seventeen different pump manufacturers, stating that “pump manufacturers must act now to protect the pool industry as well as the swimming public” to prevent suction entrapment. (Docket # 122, Ex. 22). The letter noted in bolded font that: “We have developed the solution.” Id. The letter further asserted that “in conjunction with [AOS] ... we have developed a load-sensor pump motor.” Id. The letter closed by inviting pump manufacturers to contact AOS to express support for the load-sensor motor.

On January 19, 2004, Mr. O’Brien responded to Mr. Cohen’s January 2, 2004 letter, writing to the pump manufacturers that Mr. Cohen’s “letter contained] inaccuracies [AOS] believes must be corrected,” as the letter did not “reflect the opinions of AOS or its employees” and was “written without any consultations with or participation of anyone” at AOS. (Docket # 122, Ex. 23). First, AOS noted that despite FS’s claims that it was working with AOS to develop a load-sensor pump motor, “the only arrangement between [the parties] involves [AOS] agreeing to consider development of a pump protector motor.” Id. The letter further disputed FS’s claims that a motor was designed that would pass the latest standards for SVRS technology and that prototype motors are “already constructed and waiting to be tested.” Id. Finally, the letter concluded that “developing an electronic pump shut off device to the point that it is ready to manufacture would take months or even years in our estimation.” Id. Mr. O’Brien also sent a letter directly to Joe Cohen with respect to his January 2, 2004 letter. (Docket # 155 Ex. 24). The letter noted that “the only project between [FS] and [AOS] involves [AOS] agreeing to consider developing a ‘pump protector pool motor.’ ” Id. The letter further accused Mr. Cohen of breaching the March 30, 2003 confidentiality agreement and insisted that Cohen “cease further communication about this project immediately.” Id. The January 19, 2004 letter also noted that the confidentiality agreement contained language that inventions conceived of as a result of the joint efforts of the company are “the property of’ AOS. Id. Finally, the letter closed by clarifying that: (1) AOS had “not yet determined that a load sensor device, when used with a motor and a pump, is a viable method for reducing the occurrence of suction entrapment”; and (2) “the only device [AOS has] agreed to develop for [FS] is the dry running pump motor protector device, and [AOS] has not yet delivered prototypes to [FS].” Id.

The correspondence between the two companies became even more heated with a January 22, 2004 letter from Mr. Schlanger to Mr. O’Brien. (Docket # 122, Ex. 25). Schlanger began the letter by stating “We are glad to see that you like our intellectual property enough to claim ownership of it for yourself.” Id. Schlanger then opted to “revisit the facts” of FS’s work with trying to develop SVRS devices. Specifically, Schlanger noted that AOS “approached [FS] in 2002, to see if [FS] would direct the development of an [AOS] motor with similar features” to that of the Franklin Loadtec motor. Id. The letter further asserted that after FS’s relationship with Franklin ended, FS “contacted Mike Metzler ... to see if the Company was still interested in developing the [pump-protector] motor.” Id. The letter continued by stating that FS, through Metzler’s January 16, 2003 letter, could “claim rights to the ‘pump protector motor.’ ” Id. The letter then disputed the validity of the confidentiality agreement signed by Joe Cohen, stating it was “never executed by [AOS], and “there was no valid consideration.” Id. Mr. Schlanger’s letter further noted that “even if’ the confidentiality agreement is valid, it would not “cover” any inventions conceived of in 1999, before the parties contemplated working on a pump protector motor. Finally, the letter stated that FS was “electing] to withdraw [its] offer of licensing] out technology to [AOS] made in” the September 22, 2003 letter. Id. Schlanger warned AOS that FS was “pursuing a U.S. Patent on [the] technology.” Id. The letter closed with Schlanger ominously stating that “perhaps another motor company will be interested in acquiring technology that could allow them to increase their pool industry share.” ' Id. It is unclear if there were any letters from AOS to FS directly responding to Mr. Schlanger’s January 22, 2004 letter.

There is evidence in the record, however, that Mr. O’Brien, in phone calls to Mr. Schlanger in February of 2004, “represent[ed] that [AOS had] decided to move forward with the load sensor SVRS motor.” (Docket # 122, Ex. 27). On February 23, 2004, an internal memorandum written by Mr. O’Brien provided an “update” regarding AOS’s dealings with FS. The memorandum stated the following:

Dave Price (AOS patent legal council [sic]) has advised we should get a copy of [FS’s] patent. To obtain this, I have spoken with [Schlanger] and told him that if he had a patent that applies to our device, we would be more inclined to work with [FS] than to dispute their claim. Bill advised me that they only filed a “provisional patent” which allows them to reduce the concept to patent within one year ... I am more convinced than ever that they have nothing that applies. They are also out of funding, which means Joe is available on a fee basis to help with testing and coordinating through [relevant industry standards] if we need him.

(Docket # 157, Ex. KKK). Testimony from Mr. O’Brien further supports that AOS was actively determining whether to “involve” FS in the project, depending on the validity and merits of FS’s patent rights. (O’Brien Dep. 194-95).

The following day, Mr. Schlanger sent another letter to Mr. O’Brien. (Docket # 157, Ex. UU). Schlanger, referencing dialogue between the parties that apparently occurred since the January 22, 2004 letter was written, thanked Mr. O’Brien “for keeping [FS] advised on the status of [the] product development project,” as O’Brien had “indicated that [AOS] had decided to move forward to commercialize the new load sensor swimming pool pump motor.” Id. Mr. Schlanger further stated that FS was “ready and willing to assist [AOS] with the development of this new motor,” but “in order for [such a project] to move forward, [FS] feel it imperative that [FS] enter into an agreement with [AOS] which honors [the plaintiff’s] intellectual property rights.” Id. FS’s Chief Financial Officer asked Mr. O’Brien to consider several points when “evaluating [FS’s] stake in [the] project,” including that FS “applied for U.S. patent protection ... for the use of ... any load sensor device as a means of providing a [SVRS]” and that “[AOS] clearly approached [FS] to head up design of this new motor.” Id. Moreover, Schlanger asserted that the “lifesaver motor,” while “programmed differently” and is a “different product” from the “pump protector motor” that the parties “originally set out to develop,” “utilizes [FS] intellectual property” and is, therefore, “clearly covered under [the] agreement” providing FS “with the first 18 months of marketing rights once the motor is commercially available.” Id. The letter closed with the statement that: “We would like to work with [AOS] as a team to develop this new motor and bring it to market as quickly as possible.” Id. That same month, FS, through Mr. Cohen, issued a press release stating that the company had “applied for U.S. Patent protection for the use of an electrical load sensor as a [SVRS].” (Docket #157, Ex. UU).

In the spring of 2004, “Mr. O’Brien contacted [FS] to discuss the technical side of the project and relevant legislative proposals.” (PPFF ¶ 209). “O’Brien stated that he would prepare a proposal to memorialize the parties’ ventures and forward it to FS.” (PPFF ¶ 210). “Shortly thereafter, Mr. O’Brien told Mr. Schlanger that he had drafted an agreement for” FS and had given it to AOS’s “legal department to review.” Id. AOS never provided a formal proposal to FS, however. (Schlanger Dep. 293).

Around the same time period, in April of 2004, Mr. O’Brien authored an internal AOS memorandum entitled “Pool Pump Load Sensor Device: Project Plan,” discussing, in relevant part, the defendant’s relationship with FS. Specifically, the memorandum read:

[AOS] began development of the [load sensing motor] device several years ago, and began working with [FS] in 2002 since this organization appeared to be most involved in developing protective devices, namely their automatic shut off valve. [FS] convinced AOS that the best approach for AOS would be to only market the motor as a pump dry-running protection device to be used in conjunction with the [FS] pump and valve. As testing of the AOS device evolved, it became apparent to [FS] and AOS that the electronic shut off device could be used in place of the [FS] valve, eliminating the need for the valve. Since that time, [FS] has attempted to claim rights to the AOS concept. At this time, there is no compelling reason to include [FS]; they would only drive up the price of the device, but at some point their development expertise may be utilized.

(Docket # 157, Ex. UU). Internal documents also indicate that AOS was concerned that FS had expressed a “belie[f that] they have a patent of the motor concept and [a desire] to be paid royalties.” Id. The same documents show that AOS was planning on “rejecting FS’s] request” for royalties, but did leave open the possibility that AOS would “keep [FS] involved since this company is considered the biggest advocate of suction protection.” Id.

In July of 2004, Mr. O’Brien stated that “he would fly to Denver, Colorado to meet with [FS] to discuss the financial details of [a potential joint-]venture and execute the agreement.” (PPFF ¶ 211). However, the following day, Mr. O’Brien changed his mind and stated that he would not be coming to Denver. Id. The parties’ impasse lingered into the fall. On October 13, 2004, Mr. Schlanger emailed Mr. O’Brien, “checking] with [him to] see how the SVRS Motor project was progressing.” (Docket # 155 Ex. S). Schlanger also asked in the email whether AOS was “still planning to roll [the SVRS motor] out at [a trade] show in Las Vegas.” Id. Two days later, Mr. Schlanger reached Mr. O’Brien by phone, and Mr. O’Brien “declined to discuss any potential work with FS.” (DPFF ¶ 58). At Mr. Schlanger’s deposition, he responded affirmatively to the question of whether on October 15, 2004, he “knew things weren’t going to work out the way [FS] wanted” with AOS. (Schlanger Dep. 314). There are no other documents that the parties cite to the court regarding any formal communications between Schlanger or Cohen and O’Brien or Metzler after October 2004.

G. The eMod and the Guardian

In December of 2004, “AOS introduced” a product called the eMod at the “National Pool and Spa Expo and began selling the eMod in May of 2006.” (DPFF ¶60). There is no evidence in the record that FS attended the 2004 Pool and Spa Expo. Moreover, FS did not obtain a physical sample of the eMod motor until 2006. However, AOS’s introduction of the eMod was a not a complete surprise for FS, as there is plenty of evidence in the record showing that FS knew that AOS had crafted a load sensor pump using FS’s alleged trade secrets as early as 2004. Mr. Cohen stated emphatically in his November 20, 2009 deposition that he knew AOS had a “prototype load sensor pump motor built” in October of 2004, as Mr. Mehlhorn had informed FS of such information. (Cohen Dep. 11/20/09 145). Moreover, Cohen noted that the “prototype that Bill Mehlhorn built was using ... [FS’s] trade secrets.” Id. Moreover, Mr. Schlanger testified that he was “justified in writing” letters in “early 2004” to AOS because the defendant was using “the information [FS] provided to” AOS as the “foundation for the development of its [load sensor] motor.” (Schlanger Dep. 313-14).

Later in the year and in the midst of this litigation, AOS introduced and sold the Guardian, another load-sensing pool pump motor. (Mehlhorn Dep. 266). Much of the proposed findings for each side involve whether the Guardian is a different product from the eMod. What is undisputed, however, is that the Guardian is a load-sensing motor that will shut down due to a “loss of prime, flow-blockage, and deadhead.” (PPFF ¶220). The Guardian is also programmed to shut down within three seconds in the event of a loss of flow, to interrupt electrical power to the motor to shut down the motor, and to wait until the pump is primed before monitoring the motor’s load. Id. However, Mr. Mehlhorn testified that the eMod and the Guardian are “not the same product.” (Mehlhorn Dep. 167). Regardless of whether or not the two products are the same product, both sides concede that the Loadtec, the eMod, and the Guardian all serve the same general function and, accordingly, have some similar features.

H. What Information Did FS Provide to AOS for its eMod and Guardian Motors?

The court’s extended discussion of FS’s and AOS’s efforts to create a successful SVRS device begs the question of what information FS provided to AOS, prompting FS’s April 11, 2008 complaint (Docket # 1), alleging unjust enrichment, and misappropriation of trade secrets claims against the defendant. The complaint itself indicates that FS provided such information in the March 10, 2003 letter when Mr. Cohen provided Mr. Metzler with “an outline of potential new and innovative features that could be designed into the new pump motor as well as the proprietary data for the load-sensing and delay technology used on ... [the] Loadtec motor.” (Compl. ¶ 16). FS’s unjust enrichment claim indicates that FS shared with AOS “proprietary hydraulic testing and operational procedures for a load-sensing, suction entrapment-preventative motor.” Id. at ¶ 31. FS’s misappropriation of trade secrets claim states that FS conveyed information relating to the “design and manufacture of a load-sensing, suction entrapment preventative pool pump motor.” Id. at ¶ 36. The court scoured the record and the parties’ proposed findings of fact, finding that the following evidence supported FS’s general claim that the plaintiff provided AOS with information that was useful to AOS in producing its eMod and Guardian motors.

Mr. Mehlhorn testified that he incorporated into the initial 2003 version of the eMod, because of a “discussion” with Mr. Cohen, two features that: (1) removed power from the system to enable the motor to restart; and (2) “inhibited” the motor from shutting down for two minutes after the pump is “powered on to allow the pump to fully prime.” (Mehlhorn Dep. 217). Mr. Mehlhorn further testified that during the “early versions of the eMod” the motor had a soft-start function — a means by which the motor would slowly accelerate at startup — that was inspired by a function on the Franklin motor. Id. at 217-18. Moreover, a specification sheet dated June 11, 2003, provides that the: (1) power removal function; (2) shutdown inhibitor on startup function; and (3) the soft-start function, were all part of AOS’s initial specifications for the design of its pool pump protector motor. These three features are the only specific features that the plaintiff argues and supports with evidence in its proposed findings as features on a device created by AOS that were even somewhat attributable to the information that FS provided to AOS.

FS asserts that the information the plaintiff imparted to AOS consisted of: (1) “project outlines” provided in the January 6, 2003, and March 10, 2003 letters to AOS that listed the specific features needed in the motor; (2) the general recommendations or “know how” provided orally by Mr. Cohen to AOS during meetings and phone calls regarding: (a) “the design features of the motor”; (b) the “rationale” for the features of the motor; (c) testing data; and (d) “how to construct a test stand to properly test a prototype”; (3) the “testing data” provided in March 10, 2003 letter; and (4) the Suction Safe Pump FS provided to AOS for “use in developing the new motor in April 2003.” (Pl.’s Resp. DPFF ¶ 69). Additionally, FS has provided expert testimony asserting the opinion that the information the plaintiff provided to AOS constitutes a “substantial amount of contribution” and allowed AOS “to create a functional prototype” of an anti-entrapment device, which became the precursor to AOS’s eMod and Guardian products. (Neuhalfen Dep. 224).

The court also notes how AOS’s products departed from the Loadtec motor and where AOS did not use FS’s information when developing the eMod and the Guardian. The later versions of the eMod and the Guardian did not incorporate the soft-start feature and changed the logic delay on startup. (Mehlhorn Dep. 171). Moreover, neither the eMod or the Guardian have a “notched end-bell,” id. at 172, a feature listed in FS’s January 6, 2003, and March 10, 2003 letters to AOS. While the record indicates that the initial test stand used by Mr. Mehlhorn in 2003 was changed per Mr. Cohen’s recommendations (Mehlhorn Dep. 192-193; Docket # 157, Ex. C), AOS’s engineer testified that he changed the test tank and “kept making [his own] refinements” after FS’s President provided his suggestions. (Mehlhorn Dep. 239-40). Additionally, in detecting and shutting off the motor in response to a loss of prime, the eMod and the Guardian do “not measure a change in power factor,” like the Loadtec, but rather “measures the change in input power.” (DPFF ¶ 108). Finally, Mr. Mehlhorn testified that he did not “use the data that [AOS] acquired from [FS regarding] ... how to set” the Loadtec motor in developing the eMod or the Guardian. (Mehlhorn Dep. 210). In fact, Mr. Mehlhorn testified that he had not seen the test data “until March of’ 2007. Id. at 200.

The court, satisfied that whatever facts are in dispute or not in dispute has been resolved by the court, proceeds to evaluate AOS’s motion, made pursuant to Fed. R. Civ. P. 56, and determine whether there is any “genuine issue as to any material fact” regarding whether: (1) FS’s misappropriation of trade secrets claim should be dismissed in its entirety; and (2) FS’s unjust enrichment claim should be “limited to any misappropriation occurring no later than December 2004.” (Docket # 121).

DISCUSSION

Summary judgment is appropriate where the “pleadings, the discovery, and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Wis. Alumni Research Found. v. Xenon Pharms., Inc., 591 F.3d 876, 882 (7th Cir.2010). A genuine issue of material fact exists when a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “The initial burden is on the moving party ... to demonstrate that there is no material question of fact with respect to an essential element of the non-moving party’s case.” Delta Consulting Group, Inc. v. R. Randle Constr., Inc., 554 F.3d 1133, 1137 (7th Cir.2009) (quoting Cody v. Harris, 409 F.3d 853, 860 (7th Cir.2005)). Once the movant satisfies this initial burden, the burden then shifts to the non-moving party who “may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Doe v. Cunningham, 30 F.3d 879, 883 (7th Cir.1994) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). In ruling on a summary judgment motion, the court must view the evidence plus all inferences reasonably drawn from the evidence in the light most favorable to the non-moving party. TAS Distributing Co., Inc. v. Cummins Engine Co., Inc., 491 F.3d 625, 630 (7th Cir.2007). With these standards in mind, the court looks to the specific allegations made by the plaintiff beginning with FS’s misappropriation of trade secrets claim.

A. Misappropriation of Trade Secrets

FS’s second claim for relief is that AOS misappropriated trade secrets “relating to the design and manufacture of a load-sensing suction, entrapment-preventative pool pump motor.” (Compl. ¶¶ 35-41). AOS, in its briefs supporting its motion, raises a bevy of arguments for granting summary judgment on the trade secret misappropriation claim. The court begins by examining AOS’s first argument — “FS’s claim for misappropriation of trade secrets should be dismissed because it is time barred.” (Def.’s Br. 14).

1. Statute of Limitations Issue

Under Wisconsin law, which adopts the Uniform Trade Secret Act (“UTSA”), an action claiming misappropriation of a trade secret must “be commenced within 3 years after the misappropriation of a trade secret is discovered or should have been discovered by the exercise of reasonable diligence.” Wis. Stat. § 893.51. Moreover, “the unanimous conclusion of courts considering” the issue of when a claim for misappropriation of trade secrets arises for statute of limitations purposes have concluded that a claim arises “only once” — “at the time the initial misappropriation” is discovered. Amalgamated Indus. v. Tressa, Inc., 69 Fed. Appx. 255, 261 (6th Cir.2003) (emphasis added). The law, in turn, defines a “misappropriation of a trade secret” as either the acquisition of a trade secret through improper means or by “disclosing or using” the trade secret of another. Wis. Stat. § 134.90. FS only alleges that AOS “used” FS’s trade secrets without its consent and does not claim that AOS acquired FS’s trade secrets through unlawful means. (Compl. ¶ 39). The question for the court, therefore, is whether FS commenced its action claiming a misappropriation of a trade secret within three years after AOS’s initial “use” of FS’s trade secret was “discovered or should have been discovered by the exercise of reasonable diligence.”

Slightly complicating matters is the fact that the parties entered into a “tolling agreement” on November 29, 2007, whereby AOS agreed that the time from the date of the agreement until January 15, 2008, would “not be counted in determining the time in which [FS] ... shall be required by any applicable statute of limitations ... to file an action against” AOS. (Docket # 122, Ex. 32). The tolling agreement specifically stated, however, that the agreement would not “impact any of [AOS’s] statute of limitations ... defenses that may have accrued as of the date of [the] agreement or that may accrue after the termination of this agreement.” Id. The parties belatedly provided the court with additional tolling agreements that indicated the tolling period was extended until April 11, 2008. On April 11, 2008, the plaintiff filed its complaint. (Docket # 1). Accordingly, the issue for the court changes slightly, as the court must determine on summary judgment whether there are disputed facts regarding whether FS “discovered or should have discovered” AOS’s initial “use” of FS’s trade secrets by November 28, 2004, three years prior to the date of the first tolling agreement.

That issue, of course, begs the further question of what a “use” of a trade secret entails, as the initial use is the touchstone for when the statute of limitations period begins. Unfortunately, the word “use” is “rarely defined” in trade secret case law, 1 Roger M. Milgrim, Milgrim on Trade Se crets § 1.01 n. 72 (2010), and the parties made no attempt to clarify the issue for the court. However, as the Restatement (Third) of Unfair Competition (herein “Restatement ”) explains, “misusing” a trade secret is quite a broad concept:

There are no technical limitations on the nature of the conduct that constitutes “use” of a trade secret ... As a general matter, any exploitation of the trade secret that is likely to result in injury to the trade secret owner or enrichment to the defendant is a “use” under this Section. Thus, marketing goods that embody the trade secret, employing the trade secret in manufacturing or production, relying on the trade secret to assist or accelerate research or development, or soliciting customers through the use of information that is a trade secret all constitute “use.”

Restatement § 40 cmt. c; see generally Penalty Kick Mgmt. v. Coca Cola Co., 318 F.3d 1284, 1292 (11th Cir.2003) (finding it “prudent to consult the Restatement for guidance to determine what constitutes ... ‘use’ under the” UTSA). Accordingly, the court will need to determine whether there is a dispute regarding whether FS “discovered” an initial “use” of its trade secrets by AOS — such as AOS “employing [FS’s] trade secret in manufacturing or production” or AOS “relying on the trade secret to assist or accelerate research or development” of AOS’s products — on or before November 28, 2004. Restatement § 40 cmt. c.

While the court has explored what a “use” of a trade secret can be, the court must also examine what the word “discovers” means for purposes of determining the date FS’s claim arose. The Seventh Circuit, in Sokol Crystal Prods. v. DSC Communications Corp., 15 F.3d 1427 (7th Cir.1994) (interpreting Wisconsin law), explained that, in order to “discover” the

misuse of a trade secret, a plaintiff must have more than an “abstract concern” or mere “suspicions and fears” of misuse of their trade secret. Id. at 1430. Rather, the statute of limitations on a trade secret misappropriation claim does not begin to run until a plaintiff has sufficient information to make a “meaningfully colorable” claim. Porex Corp. v. Haldopoulos, 284 Ga.App. 510, 515, 644 S.E.2d 349 (Ct.App. 2007); see also Chasteen v. UNISIA JECS Corp., 216 F.3d 1212, 1218 (10th Cir.2000) (holding that the statute of limitations on trade secret misappropriation claims begins to run when the plaintiff possesses knowledge of sufficient facts from which a jury has the possibility of inferring misuse of the plaintiffs trade secrets); Knights Armament Co. v. Optical Sys. Tech., Inc., 636 F.Supp.2d 1283, 1293 (M.D.Fla.2009) (“Although suspicion alone is insufficient to run the limitations period, ‘when there is reason to suspect that a trade secret has been misappropriated, and a reasonable investigation would produce facts sufficient to confirm this suspicion (and justify bringing suit), the limitations period begins, even though the plaintiff has not conducted such an investigation.’ ”) (internal citations omitted). A “meaningfully colorable” claim is one in which the lawsuit “could survive a motion to dismiss for failure to state a claim.” In re Cygnus Telecomms. Tech., 536 F.3d 1343, 1357 (Fed.Cir.2008) (interpreting Minnesota’s version of the UTSA).

Applying these various principles to the case at hand, the undisputed evidence confirms that FS knew of or should have discovered AOS’s initial alleged trade secret misappropriation before November 28, 2004. FS’s September 22, 2003 letter suggesting the parties “enter into a formal agreement to proceed with the development” of the pool pump motor as an SVRS device explicitly stated that FS had “not granted any rights to [AOS] for the commercial use of any proprietary intellectual property.” (Docket # 122, Ex. 21). Mr. Cohen admitted in his deposition that Mr. Mehlhorn informed FS in October of 2003 that AOS had built a “prototype load sensor motor.” (Cohen 11/20/09 Dep. 145). Given: (1) the lack of any agreement between FS and AOS for the latter company to use the plaintiffs proprietary information to develop an SVRS; and (2) FS’s unwavering belief that AOS could not have produced a load-sensor motor without FS’s help, Mr. Mehlhorn’s disclosure in October of 2003 placed FS on clear notice that AOS was “employing” FS’s proprietary information in manufacturing or producing a load sensing motor and “relying” on FS’s information to “assist and accelerate” AOS’s research and development of the SVRS device, a clear “use” of FS’s trade secrets. Restatement § 40 cmt. c. Moreover, FS admitted without any qualifications in its January 2, 2004 letter to its manufacturers that AOS was employing FS’s information to “develop the solution” to pool suction-entrapment through a load-sensing motor (Docket # 122, Ex. 22) — a stark claim, given that FS knew that AOS had “not granted any rights to [the defendant] for the commercial use of any proprietary intellectual property.” (Docket # 122, Ex. 21). Additionally, Mr. Schlanger’s letter to Mr. O’Brien on January 22, 2004, formally accused AOS of “claiming ownership” of FS’s “intellectual property.” (Docket # 122, Ex. 25). Even more blatantly, Mr. Schlanger thanked Mr. O’Brien in his February 24, 2004 letter “for keeping [FS] advised on the status of [the] product development project,” referencing the fact that Mr. O’Brien informed FS that the defendant “had decided to move forward to commercialize the new load sensor swimming pool pump motor.” (Docket # 157, Ex. UU). Furthermore, Mr. Schlanger’s October 13, 2004 email to Mr. O’Brien confirms that FS knew about AOS’s “SVRS Motor project,” as Mr. Schlanger openly asked how the project was “progressing” and if AOS was “still planning to roll [the SVRS motor] out at [a trade] show in Las Vegas.” (Docket # 155 Ex. S). Finally, both Mr. Cohen and Mr. Schlanger unabashedly admit in their deposition testimony that they “knew” that AOS was producing a load-sensing motor using the information FS had provided in the summer and fall of 2004. (Cohen Dep. 11/20/09 145; Schlanger Dep. 313-14). None of the evidence suggests that FS had a mere “abstract concern” or slight “suspicion” that AOS was misappropriating FS’s trade secrets; indeed, FS openly admitted it knew that AOS was using FS’s trade secrets well before November 28, 2004.

The only argument that FS makes in rebuttal is that even though it “knew” that AOS was using FS’s trade secrets in 2004, FS was only “speculating” about AOS’s use in 2004 and could not confirm such use until FS inspected the AOS’s eMod motor. (Pl.’s Resp. Br. 12). There are several problems with FS’s contention. First, as discussed above, there is no evidence that FS was “speculating” about AOS’s alleged misappropriation of FS’s trade secrets in 2004: FS was emphatic, whether in its letters from 2003 and 2004 or in the deposition testimony' of Mr. Cohen and Mr. Schlanger, that it “knew” AOS had misappropriated FS’s trade secrets in 2004. The only “evidence” that FS has presented contradicting the premise that FS knew of AOS’s misappropriation in 2004 is the affidavit of Mr. Cohen concluding that FS “did not know that [AOS] had misappropriated [FS’s] trade secrets until we inspected and tested the actual functioning of the eMod motor in May of 2006.” (Cohen Deck ¶ 57). However, it is axiomatic that “parties cannot thwart the purposes of Rule 56 by creating ‘sham’ issues of fact with affidavits that contradict their prior depositions.” Bank of Illinois v. Allied Signal Safety Restraint Systems, 75 F.3d 1162, 1168 (7th Cir.1996); see also Payne v. Pauley, 337 F.3d 767, 773 (7th Cir.2003) (“Conclusory allegations, unsupported by specific facts, will not suffice.”)

Second, FS misreads the holding of the Seventh Circuit in Sokol Crystal to say that a statute of limitations period for a trade secret misappropriation claim begins when a plaintiff is “certain” of the misappropriation. The Sokol Crystal decision is largely a product of the facts presented to that court. In that case, the court had to determine when the plaintiff knew that the defendant was misusing the plaintiffs trade secret. 15 F.3d at 1430. The plaintiff in Sokol Crystal did not “discover” the defendant’s misappropriation upon receiving a device created by the defendant that was “similar to” the plaintiffs device, as the plaintiff “did not yet know the use to which [the similar device was] going to be put.” Id. Instead, the plaintiff in that case “discovered” the misappropriation when the defendant sold the device to a third party. Id. For the court, the mere creation of a device by the defendant that was similar to the plaintiffs product, which was very much allowed under the parties’ confidential information agreement, merely provided a “suspicion” of misuse, which was insufficient to “start the clock of the statute of limitations.” Id. Rather, it was only when the plaintiff discovered that the defendant was going to violate their information sharing agreement by selling the product in question that the statute of limitations period began. Id. Here, unlike in Sokol Crystal, there was no agreement between the parties allowing for AOS to employ FS’s alleged trade secrets in manufacturing AOS’s products or for AOS to use FS’s alleged trade secret to assist AOS’s research and development of the eMod. Id. at 1429 (“The agreement, in substance, prohibited Granger from using Sokol’s confidential information for any purpose other than that for which it was received.”) In fact, this case stands in contrast with Sokol Crystal because, in this case, the actual commercialization of the eMod was not the defendant’s initial misuse of the plaintiffs proprietary information. The evidence, as discussed above, clearly indicates that FS knew AOS was “using” plaintiffs proprietary information before November 28, 2004.

More broadly, the argument that Sokol Crystal stands for the proposition that the “statute of limitations on trade secret misappropriation claims begins to run ... when a plaintiff can positively and directly prove misappropriation,” such as through physically inspecting the product, is deeply flawed. Chasteen, 216 F.3d at 1218; see also Intermedies, Inc. v. Ventritex, Inc., 822 F.Supp. 634, 641 (N.D.Cal. 1993) (holding that the premise that a “ ‘cause of action’ cannot ‘accrue’ for statute of limitations purposes unless and until it is clear that a plaintiff has, as a matter of historical fact, a winning claim, i.e., until a plaintiff is in a position to present evidence which will (regardless of what evidence the defense musters) establish facts which make liability a legal certainty” is fundamentally wrong). Such a proposition would obliterate the purposes of the statute of limitations, providing a perverse incentive to plaintiffs with potential trade secret misappropriation claims to be less than diligent in exploring their claims. Moreover, as the court in Intermedies concluded, requiring that the statute of limitations period begins only when the plaintiff “can unassailably establish a legal claim for trade secret misappropriation” would eviscerate the statute of limitations, as only claims that “ultimately proved to have merit,” as opposed to those with specious or unsupportable claims, would have a clear limitations period. Id. In fact, taking FS’s argument to its logical extreme, as no jury has yet found that AOS actually misappropriated FS’s trade secrets, it is still not absolutely certain that AOS misused FS’s information, and, as such, under FS’s logic, the limitations period has not yet begun to run. Setting a standard of near certain knowledge of misappropriation as the measure by which the limitations period’s clock starts would be absurd and, as such, this court is persuaded that a claim for trade secret misappropriation accrues when the plaintiff merely has sufficient information to make a “meaningfully color-able” claim, Porex Corp., 284 Ga.App. at 515, 644 S.E.2d 349,' — that is, sufficient information to state a claim that could survive a motion to dismiss. In re Cygnus Telecomms. Tech., LLC, 536 F.3d at 1357. Moreover, as discussed above, the record indicates that as of the summer of 2004, if not the fall of 2003, FS had “discovered” AOS’s use of FS’s proprietary information, starting the statute of limitations period.

Finally, the court notes that the plaintiff has failed to present any information or any evidence relevant to the court’s inquiry that FS discovered upon its examination of the eMod device in 2006. FS’s April 11, 2008 complaint did not allege that the examination of the eMod device provided any sort of insight as to