Full opinion text
MEMORANDUM AND ORDER KEITH P. ELLISON, District Judge. Pending before the Court are the following motions: Filed by Plaintiff Tesco Corporation (“Tesco”): — Motion for Partial Summary Judgment on Defendants’ Anticipation Invalidity Defense and Motion to Amend Claim Construction (Doc. No. 279); — Motion for Partial Summary Judgment of No Inequitable Conduct (Doc. No. 281); — Motion to Strike the Incomplete Reexamination Files of the Patents-in-Suit as Evidence from Defendants’ Motions for Summary Judgment (Doc. No. 338). Filed by Defendant Frank’s Casing Crew & Rental Tools, Inc. (“Frank’s”): — Motion for Summary Judgment of No Willful Infringement of U.S. Patent Nos. 7,140,443 and 7,377,324 (Doc. No. 275); — Motion for Summary Judgment of Invalidity of U.S. Patent Nos. 7,140,443 and 7,377,324 (Doe. No. 284); — Motion for Partial Summary Judgment of Non-Infringement of Tesco’s “Pivotal Connection” Claims by Frank’s Sub-Mounted Supertawg and Motion to Amend Claim Construction (Doc. No. 289); — Motion for Partial Summary Judgment of Non-Infringement of the “Channel Key” and “Anti-Rotation” Claims in Patent Nos. 7,140,443 and 7,377,324 (Doc. No. 291); — Motion to Strike Testimony of Tommy Warren (Doc. No. 323). Filed by Defendant National Oilwell Vareo, L.P. (“NOV”): — Motion for Partial Summary Judgment of Non-Infringement Regarding “Channel Key” and “Anti-Rotation” Claims (Doc. No. 283); — Motion for Partial Summary Judgment of Patent Invalidity for Indefiniteness Pursuant to 35 U.S.C. § 112, ¶ 2 (Doc. No. 293); — Motion for Partial Summary Judgment of Non-Infringement Regarding “Pivotal Connection” Claims and Motion to Amend Claim Construction (Doc. No. 294); — Motion for Summary Judgment of Invalidity Due to Obviousness (35 U.S.C. § 103(a)) (Doc. No. 300). Filed by Defendant Weatherford International, Inc. (“Weatherford”): — Motion for Summary Judgment of No Infringement (Doc. No. 296); — Motion to Strike the Expert Report and Exclude the Testimony of Gary Wooley and Motion to Supplement Claim Constructions (Doc. No. 299). Upon considering the Motions, all responses thereto, and the applicable law, the Court finds that Tesco’s Motion to Strike Reexamination Files (Doc. No. 338) should be granted in part and denied in part, Weatherford’s Motion to Strike the Report and Testimony of Gary Wooley (Doc. No. 299) should be denied, Frank’s Motion to Strike the Testimony of Tommy Warren (Doc. No. 323) should be dismissed as moot, Defendants’ Motions for Summary Judgment of Non-Infringement of the “Pivotal Connection” Claims (Doc. Nos. 289, 294, 296) should be denied, Defendants’ Motions for Summary Judgment of Non-Infringement of the “Channel Key” and “Fitted for Anti-Rotation” Claims (Doc. Nos. 283, 291) should be granted in part and denied in part, NOV’s Motion for Summary Judgment of Invalidity Due to Obviousness (Doc. No. 300) should be denied, Tesco’s Motion for Summary Judgment on Defendants’ Anticipation Defense (Doc. No. 279) should be denied, NOV’s Motion for Summary Judgment of Invalidity Due to Indefiniteness (Doc. No. 293) should be denied, Frank’s Motion for Summary Judgment of Invalidity Due to the On-Sale Bar (Doc. No. 284) should be denied, Tesco’s Motion for Summary Judgment on Defendants’ Inequitable Conduct Defenses (Doc. No. 281) should be granted in part and denied in part, and that Frank’s Motion for Summary Judgment of No Willful Infringement (Doc. No. 275) should be granted in part and denied in part. The Court also finds it appropriate to further construe the claim terms as a matter of law, and does so in this order and the accompanying claim construction chart. I. BACKGROUND Tesco owns U.S. Patent No. 7,140,443 (the “'443 patent”) and U.S. Patent No. 7,377,324 (the “'324 patent”). The '324 patent, granted in May 2008, is a continuation of the '443 patent, granted in November 2006. Tesco brought suit against Frank’s, NOV, Weatherford, and Offshore Energy Services, Inc. (“OES”) for infringement of these patents. The '443 and '324 patents describe a tool used on a drilling rig. Drilling rigs are used to bore and encase holes in the ground for the purpose of extracting oil. This process involves oilfield tubulars, or pipes, generally segmented into lengths of 30-40 feet. The drilling rig screws the pipe segments together to form a pipe string used to drill or encase the hole in the ground. More specifically, the patents describe an apparatus and method for handling the sections of the pipe or pipe strings that are used for drilling or lining a well bore. This pipe handling device is positioned below a top drive, a device placed in the upper part of a drilling rig which bears the weight of suspended pipe as it is driven into a well bore. Link arms are used to raise segments of a pipe string and place those segments into a pipe engaging apparatus such that the pipe segment can be rotated and connected with the pipe string being used to line or drill a well bore. Tesco’s product is commonly-referred to as the casing drilling system (“CDS”). Tesco alleges that products sold by each Defendant infringe on the claims of the '443 and '324 patents. Specifically, Tesco asserts claims 13, 18, 25, 27, 43, 55, and 59 of the '443 patent and claims 1, 4, 12,14,17, and 27 of the '324 patent. In October and November 2008, Weatherford filed requests for inter partes reexamination of the patents with the United States Patent and Trademark Office (“PTO”). (Doc. No. 54, at 1; Doc. No. 60, at 1.) PTO granted both re-examination requests. Defendants then moved for a stay of this proceeding pending the conclusion of the reexamination proceedings (Doc. No. 34), which the Court denied in February 2009. (Doc. No. 61.) In January and February 2009, PTO issued its first Office Actions in the two reexaminations, rejecting fifty-eight of the seventy claims in the '443 Patent (Doc. No. 54, at 1) and thirty-three of the thirty-four claims in the '324 Patent (Doc. No. 60, at 2). In January 2010, PTO issued an Actions Closing Prosecution (“ACP”) for each of the reexaminations of the Tesco Patents. (Doc. No. 195, at 3.) Of the seven claims in the '443 Patent asserted against the Defendants, PTO rejected five and confirmed two. (Id., at 5.) Of the six claims in the '324 Patent asserted against the Defendants, PTO rejected five and confirmed one. (Id.) All the confirmed claims include a “channel key” limitation that is absent from all of the rejected claims. (Id., at 3.) After the Actions Closing Prosecution were issued in the reexaminations, Frank’s filed another Motion to Stay the Case Until Issuance of ReexamL nation Certificates (Doc. No. 195), which the Court denied in August 2010. (Doc. No. 317.) On January 5, 2010, 722 F.Supp.2d 737 (S.D.Tex.2010), the Court issued an order construing the claims of the patents-in-suit as a matter of law under Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). (Doc. No. 176 (the “Markman Order”).) This case is scheduled to go to trial on October 25, 2010. II. MOTIONS TO AMEND CLAIM CONSTRUCTION All of the moving parties ask the Court to engage in additional claim construction beyond that included in the Markman Order. Tesco, Frank’s, NOV, and Weather-ford all request that the Court construe the terms “main body,” “pipe engaging apparatus,” and “pipe gripping mechanism.” Frank’s, NOV, and Weatherford also request that the Court amend its constructions of “link arm mounted by a pivotal connection to move with the top drive,” “pivotally connectable,” and “pivotally connected/pivotally mounted/pivotal connection.” The Federal Circuit has held that “a district court may engage in claim construction during various phases of litigation, not just in a Markman order,” and “may engage in rolling claim construction, in which the court revisits and alters its interpretation of the claim terms as its understanding of the technology evolves.” Conoco, Inc. v. Energy & Environmental Intern., L.C., 460 F.3d 1349, 1359 (Fed.Cir. 2006). “When the parties present a fundamental dispute regarding the scope of a claim term, it is the court’s duty to resolve it.” 02 Micro Intern. Ltd. v. Beyond Innovation Technology Co., Ltd., 521 F.3d 1351, 1362 (Fed.Cir.2008). The goal of claim construction is to arrive at the ordinary and customary meaning of a claim term in the eyes of a person of ordinary skill in the art. Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed.Cir.2005) (en banc). The Court now considers in turn each term for which construction is requested: A. “link arm mounted by a pivotal connection to move with the top drive”; “pivotally connectable”; “pivotally connected/pivotally mounted/ pivotal connection” In the Markman Order, the Court construed the term “link arm mounted by a pivotal connection to move with the top drive” to mean “link arm mounted to a surface by a pivotal connection to move with the top drive, but not connected to any part of, or surface supported by, the top drive itself.” (Doc. No. 176, at 14.) In doing so, the Court noted that the parties did not dispute that “Tesco’s patents do not cover any embodiments of this device in which the link arms are connected directly to a top drive,” nor that Tesco’s patents “do cover any embodiments where the link arms are mounted onto the pipe engaging apparatus, even when this connection is achieved through mounting the link arms onto a bracket that is then mounted onto the pipe engaging apparatus.” (Id. at 12.) With respect to embodiments in which the link arms are connected to “intermediate surfaces,” meaning surfaces “positioned below the top drive, but not part of the main body of the pipe-handling device such that the link arms can be said to be ‘directly on the device,’ ” the Court held that “Tesco’s patents do not cover all of the intermediate surfaces” but that the claims did not exclude all embodiments in which the link arms were not “directly” connected to the pipe engaging apparatus. (Id. at 13 (emphasis in original).) A significant portion of the current claim construction disputes stems from the parties’ differing interpretations of the Court’s construction of this term. Frank’s and NOV ask the Court to add to its construction of this term the phrase “including but not limited to the top drive shaft or quill,” so it would be defined as “link arm mounted to a surface by a pivotal connection, but not connected to any part of, or surface supported by, the top drive itself, including but not limited to the top drive shaft or quill.” (Doc. No. 289, 294.) Frank’s and NOV also seek to add that definition onto the constructions of “pivotally connectable,” and “pivotally connected/pivotally mounted/pivotal connection.” (Id.) Weatherford asks the Court to clarify that “If the link arms are connected to a surface intermediate the top drive and pipe engaging apparatus, which surface is supported by the top drive, then the link arms are not connected to the pipe engaging apparatus.” (Doc. No. 299.) Tesco argues that those amendments are unnecessary. At the outset, the Court finds it necessary, in light of the parties’ competing interpretations and in order to avoid confusion, to clarify its intention in construing the term “link arm mounted by a pivotal connection to move with the top drive.” The Court now adds the word “directly” into that definition, to read: “link arm mounted to a surface by a pivotal connection to move with the top drive, but not connected to any part of, or surface directly supported by, the top drive itself.” In so doing, the Court expresses no view as to whether any, or all, intermediate surfaces (i.e. those between the top drive and the pipe engaging apparatus) on the accused devices are directly supported by the top drive itself. That determination is part of applying the Court’s claim construction to the accused devices at issue, which is a question of fact for the jury. See, e.g., PPG Indus, v. Guardian Indus. Corp., 156 F.3d 1351, 1355 (Fed.Cir.1998) (“after the court has defined the claim with whatever specificity and precision is warranted by the language of the claim and the evidence bearing on the proper construction, the task of determining whether the construed claim reads on the accused product is for the finder of fact”). Next, the Court declines to adopt the phrase “including but not limited to the top drive shaft or quill.” The definition of “link arm mounted by a pivotal connection to move with the top drive,” as clarified in this order, sufficiently defines the locations of link arm connections that are excluded from the coverage of the patents-in-suit. Frank’s and NOV’S proposal asks the Court to partially determine which particular surfaces are supported by the top drive. The Court declines to do so, because such application of the claim constructions to the accused products is a question of fact for the jury. If a jury finds that link arms are connected to a surface that is part of the top drive, it could not reasonably find that the device is within the scope of the patents-in-suit. Therefore, the proposed construction is unnecessary to clarify the meaning of the claim terms. Finally, the Court finds it appropriate to include Weatherford’s proposed sentence in its construction, with the additional word “directly.” The new sentence states, “If the link arms are connected to a surface intermediate the top drive and pipe engaging apparatus, which surface is directly supported by the top drive, then the link arms are not connected to the pipe engaging apparatus.” The validity of that statement should be clear from the Mark-man Order, as it essentially says, “If the link arms are connected to neither the pipe engaging apparatus nor the top drive, the link arms are not connected to the pipe engaging apparatus.” However, in an abundance of caution, the Court now incorporates that sentence into the construction. See 02 Micro Intern. Ltd., 521 F.3d at 1362 (“When the parties present a fundamental dispute regarding the scope of a claim term, it is the court’s duty to resolve it.”). Omitting the word “directly” would risk confusing the jury about which pivotal connections are excluded from the patents. The constructions of “pivotally connectable” and “pivotally connected/pivotally mounted/pivotal connection” are thus amended to add the sentence “If the link arms are connected to a surface intermediate the top drive and pipe engaging apparatus, which surface is directly supported by the top drive, then the link arms are not connected to the pipe engaging apparatus.” B. “pipe engaging apparatus” Although at the time of the Markman hearing, the parties agreed that this term did not need to be construed, they now all agree that construction is needed. Furthermore, the parties agree to Tesco’s proposed definition: “a structure or equipment including a main body with an upper end for drive connection directly or indirectly to a top drive, and a pipe gripping mechanism.” This construction finds support in the claim language, which states, for example, “13. A pipe handling system comprising: a pipe engaging apparatus for gripping a pipe joint and having a main body including an upper end for drive connection to a top drive and a pipe gripping mechanism....” (Doc. No. 279, Ex. 1, at 9.) Accordingly, the Court adopts the agreed definition, and construes “pipe engaging apparatus” to mean “a structure or equipment including a main body with an upper end for drive connection directly or indirectly to a top drive, and a pipe gripping mechanism.” C. “main body” Despite their agreement regarding “pipe engaging apparatus,” the parties vehemently dispute the proper construction of the component parts, “main body” and “pipe gripping mechanism.” For “main body,” Tesco proposes the definition “a structure including a housing for other parts or components, such as an actuator for the pipe gripping mechanism.” Frank’s, NOV, and Weatherford all propose the definition “the main portion of the pipe engaging apparatus, which has an upper end for connection directly or indirectly to the top drive, and to which one or more link arms can be connected.” In arguing that “main body” be construed to require “a housing for other parts or components,” Tesco points to the specification in the patent, which states: Referring to FIG. 2, a pipe handling system is shown including a pipe handling device 10 a and a pipe engaging apparatus 12 a including a main body 14 a and a housing 32 carrying, for example, inwardly directed grapples, which can’t be seen in this drawing, formed to engage about the outer surface of a pipe, such as a section of casing 33, to be gripped. (Doc. No. 279, Ex. 1, at 4:33-40.) Tesco’s expert Tommy Warren also testified that “main body” would be understood by people of ordinary skill in the art to include “a housing that may house other parts.” (Doc. No. 279, Ex. 22, at 135:11-16.) Defendants argue that nothing in the claim language or the specifications limits what constitutes a “main body.” The Court agrees with Defendants that the claims do not require “main body” to include “a housing for other parts or components, such as an actuator for the pipe gripping mechanism.” First, the language of the claims themselves in no way suggests that the main body must house anything. Rather, the claim language requires only that the main body 1) be part of the pipe engaging apparatus; and 2) have an upper end for drive connection to a top drive. (Doc. No. 279, Ex. 1, claims 13, 43, and 55; Ex. 2, claim 1.) Second, the specification does not add such a limitation. Although the specification is “highly relevant to the claim construction” and “the single best guide to the meaning of a disputed term,” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996), it is well established that each feature of the specific embodiment described in the specification does not constitute a limitation on the patent claims. See, e.g., Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1325 (Fed.Cir.2003) (“courts must take extreme care when ascertaining the proper scope of the claims, lest they simultaneously import into the claims limitations that were unintended by the patentee”); Ventana Medical Systems, Inc. v. Biogenex Laboratories, Inc., 473 F.3d 1173, 1181 (Fed.Cir. 2006) (“Although the specification often describes very specific embodiments of the invention, we have repeatedly warned against confining the claims to those embodiments”) (internal citation omitted). Here, there is no suggestion in the language of the specification that the housing is a requirement of the main body. Instead, the specification merely states that the device “is shown” with certain components. Moreover, it is not even clear from the specification that the specific embodiment described includes a main body that contains housing. (See Doc. No. 279, Ex. 1, at 4:33-40 (“pipe engaging apparatus 12a including a main body 14a and a housing 32”) (emphasis added).) Neither is Warren’s testimony that a person of ordinary skill in the art would interpret “main body” to include a housing sufficient to add this limitation into the claim. That statement, without further elaboration, cannot overcome the intrinsic evidence in the claims and specification that such a limitation is not present. See Kara Technology Inc. v. Stamps.com Inc., 582 F.3d 1341, 1348 (Fed.Cir.2009) (“A court should discount any expert testimony that is clearly at odds with the claim construction mandated by the claims themselves, the written description, and the prosecution history, in other words, with the written record of the patent.”) (internal citation omitted). On the other hand, Defendants’ proposed definition finds support in the claim and specification language, along with the plain meaning of the term “main body.” The claims make explicit that the main body is part of the pipe engaging apparatus. (See, e.g., Doc. No. 279, Ex. 1, claim 13 (referring to “pipe engaging apparatus main body”).) The specification makes clear that, although the main body must have an upper end for drive connection to the top drive, that connection can be either direct or indirect. (Id. at 3:56-58 (“The pipe engaging apparatus can be connectable, directly or indirectly, at its upper end 18 to a top drive 20.”).) The claims set forth that the main body must be connectable to the top drive and that the main body is part of the pipe engaging apparatus. Therefore, the main body may connect either directly or indirectly to the top drive. Finally, Tesco objects that, essentially, “Defendants’ proposed construction is simply ‘main body’ means ‘the main portion of the pipe engaging apparatus.’ ” (Doc. No. 350, at 4.) Tesco may be correct in that summation, but Defendants’ proposed construction also captures the full meaning of “main body” as claimed in the patents. The main body is one of very few components of the pipe engaging apparatus that is specified, and both “main” and “body” are used in their common senses. However, Defendants have presented no evidence that “main body” should be construed to require that “one or more link arms can be connected,” and the Court finds it unnecessary to do so. Therefore, the Court construes “main body” as “the main portion of the pipe engaging apparatus, which has an upper end for connection directly or indirectly to the top drive.” D. “pipe gripping mechanism” Tesco asks that the Court construe “pipe gripping mechanism” as “a mechanism in which pipe is gripped with some form of gripping force provided by radial movement of an element of the gripper for rotational and axial movement.” Defendants ask the Court to construe the term as “a device for gripping pipe which transmits force or motion.” Further, the parties disagree as to whether a device must have more than one part to constitute a “mechanism.” The parties vigorously dispute this point because it could determine whether the threaded connection used in prior art constitutes a “pipe gripping mechanism” for purposes of anticipation invalidity. See Section IV.D.2 below. Tesco, citing Mark’s Standard Handbook for Mechanical Engineers, argues that a “mechanism” must have “two or more moving parts.” Defendants, citing Merriam-Webster Dictionary, argue that “mechanism” essentially means “machine,” and that a screw is one of the six “simple machines.” The Court finds, based on the claim and specification language, that the only limitation properly read into the term “pipe gripping mechanism” is “for rotational and axial movement.” Claim 55 of the '443 patent and claim 1 of the '324 patent, among others, describe “a pipe gripping mechanism to grip a pipe for rotational and axial movement.” (Doc. No. 279, Ex. 1, 13:5-6, Ex. 2, 8:34-35.) However, there is no support in the claims or specification either for Tesco’s proposed limitation “with some form of gripping force provided by radial movement of an element of the gripper,” or for Defendants’ proposed limitation “which transmits force or motion.” The Court finds no evidence, either presented by the parties or found in the patents, that requires such limitations. The Court also declines to find any further limitations in the word “mechanism,” such as Tesco’s proposed “two or more moving parts.” In the context of the patents, “mechanism” does not appear to place such a limit on the pipe gripping device. Furthermore, it is far from clear from the extrinsic evidence that Tesco’s proposed definition is appropriate. Although Mark’s Standard Handbook for Mechanical Engineers suggests that such a meaning is common in that field, the dictionary Defendants cite suggests that, in common usage, one part can constitute a mechanism. Other dictionaries suggest that either usage is appropriate. See, e.g., American Heritage Dictionary, Second College Edition (1982) (defining “mechanism” as “la. A machine or mechanical appliance, b. The arrangement of connected parts in a machine. 2. A system of parts that operate or interact like those of a machine. 3. An instrument or process, physical or mental, by which something is done or comes into being ....”) Absent language in the patent specifying that a pipe gripping mechanism must contain more than one part, the jury is capable of applying the ordinary meaning of the word to the accused devices. The Court thus construes “pipe gripping mechanism” to mean “a mechanism in which pipe is gripped for rotational and axial movement.” The claim constructions in this order are set forth in the claim construction chart at the end of the order. III. Motions to Strike A. Legal Standard Evidence is admissible only if it is relevant, meaning “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R.Evid. 401. Further, “[ajlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403. Federal Rule of Evidence 702 provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise....” “[TJhe trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). “A district court should refuse to allow an expert witness to testify if it finds that the witness is not qualified to testify in a particular field or on a given subject.” Wilson v. Woods, 163 F.3d 935, 937 (5th Cir.1999); see also Sundance, Inc. v. DeMonte Fabricating Ltd., 550 F.3d 1356, 1363 (Fed.Cir.2008) (“it is an abuse of discretion to permit a witness to testify as an expert on the issues of noninfringement or invalidity unless that witness is qualified as an expert in the pertinent art”). However, “Rule 702 does not mandate that an expert be highly qualified in order to testify about a given issue. Differences in expertise bear chiefly on the weight to be assigned to the testimony by the trier of fact, not its admissibility.” Huss v. Gayden, 571 F.3d 442, 452 (5th Cir.2009) (citing Daubert, 509 U.S. at 596, 113 S.Ct. 2786). B. Motion to Strike Reexamination Files Tesco moves to strike the PTO reexamination files as summary judgment evidence. (Doc. No. 338.) Tesco argues that the files are incomplete and that the presumption of patent validity does not apply in reexaminations. Therefore, Tesco argues, the files are irrelevant, or at the very least more prejudicial than probative. See Fed.R.Evid. 403. Frank’s argues in response that the reexamination is virtually complete, and that the files are relevant to invalidity, willful infringement, prosecution history estoppel, and inequitable conduct. Further, Frank’s points to several cases in which district courts have considered reexamination files, and argues that there is no risk of undue prejudice because only the Court, not the jury, will consider the files as evidence at this stage. The Court finds that the examiners’ rejections and confirmations of claims in the reexamination proceedings are inadmissible for purposes of proving invalidity of the patents at the summary judgment stage. Unlike in reexaminations, those challenging the validity of a patent in litigation must overcome a presumption of validity by proving by clear and convincing evidence that a patent is valid. The conclusions of examiners as to whether a claim should be confirmed or rejected using a completely different standard have no probative value in this context. The Federal Circuit has held that “the grant by the examiner of a request for reexamination is not probative of unpatentability.” Hoechst Celanese Corp. v. BP Chemicals Ltd., 78 F.3d 1575, 1584 (Fed.Cir.1996). As one district court held, “evidence of incomplete patent reexamination proceedings is not admissible to prove invalidity of a patent, because it has no probative value on that issue.” Transamerica Life Ins. Co. v. Lincoln Nat. Life Ins. Co., 597 F.Supp.2d 897, 907 (N.D.Iowa 2009). Although Hoechst and Transamerica Life Ins. Co. dealt with mere grants of reexamination rather than rejections of claims in reexamination and Actions Closing Prosecution, there is still no probative value on the issue of invalidity due to the differing standards applied in reexamination and in this litigation. Furthermore, even if there were some marginal probative value, it is outweighed by the risk of prejudice and confusion due to the improper weight likely to be given to the PTO examiners’ conclusions. See Fed.R.Evid. 403. Even if instructed that the standards were different and thus that the examiners’ conclusions are not dispositive in this case, there is a serious risk that a jury would view the examiners as expert and authoritative. See, e.g., Callaway Golf Co. v. Acushnet Co., 576 F.3d 1331, 1343 (Fed.Cir.2009) (affirming district court’s ruling that little relevance of non-final reexamination redeterminations was outweighed by high risk of jury confusion); Transamerica Life Ins. Co., 597 F.Supp.2d at 907; Amphenol T & M Antennas, Inc. v. Centurion Intern., Inc., 2002 WL 32373639, at *2 (N.D.Ill. Jan. 17, 2002). Although the risk of prejudice is less when only the judge will consider the evidence, see Gulf States Utilities Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir.1981) (“This portion of Rule 403 has no logical application to bench trials.”), “[t]he admissibility of summary judgment evidence is subject to the same rules of admissibility applicable to a trial.” Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1024 (5th Cir.1995); Fed.R.Civ.P. 56(e)(1) (“A supporting or opposing affidavit must ... set out facts that would be admissible in evidence ... ”); Charleswater Products, Inc. v. Nevamar Corp., 178 F.3d 1310 (Table), 1998 WL 911688, at *2 (Fed. Cir.1998) (upholding district court’s exclusion of summary judgment evidence because it would be inadmissible at trial under Federal Rule of Evidence 403). The reexamination proceedings are, however, relevant to the issue of willful infringement. Safoco, Inc. v. Cameron Intern. Corp., 2009 WL 2424108, at *20 (S.D.Tex. July 31, 2009). Contrary to Tesco’s claim, In re Seagate does not require that only pre-litigation events be considered in determining whether there is “an objectively high likelihood that its actions constituted infringement of a valid patent.” 497 F.3d 1360, 1371 (Fed.Cir.2007) (en banc). Rather, In re Seagate says merely that pre-litigation conduct by the defendant is irrelevant to the subjective inquiry of whether the objective risk “was either known or so obvious that that should have been known to the accused infringer.” Id. The Federal Circuit and other courts have accordingly considered information from after the commencement of litigation in their willful infringement inquiries. See, e.g., DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1337 (Fed.Cir.2009); Pivonka v. Central Garden & Pet Co., 2008 WL 486049, at *2 (D.Colo. Feb. 19, 2008). Finally, information from the reexamination proceedings other than 1) the fact that reexamination was opened, or 2) the conclusions of the examiners — for example, what evidence Tesco presented or what statements Tesco made — is relevant to issues such as prosecution history estoppel and inequitable conduct. Furthermore, the risk of prejudice is not present when the evidence is not conclusions of examiners, as there is no danger of improperly conflating the different standards. See Fed.R.Evid. 403. Therefore, the Motion to Strike Reexamination Files is granted in part and denied in part. C. Motion to Strike Expert Report and Testimony of Gary Wooley Weatherford moves to strike the expert report and exclude the testimony of Tesco’s expert witness Dr. Gary Wooley. (Doc. No. 299.) In support of its motion, Weatherford argues that Dr. Wooley is not qualified to testify as an expert on the subject matter of this case because, although he has three degrees in engineering, none of his education or experience is related to the design or use of pipe-handling equipment of any kind, much less of the type disclosed in the Patents-in-Suit. (Doc. No. 299, at 10.) Weatherford further argues that Dr. Wooley’s opinions are contrary to the Court’s claim construction and will thus confuse the jury. In response, Tesco points to Dr. Wooley’s “general experience in rig operations and the design and testing of oilfield equipment,” arguing that Weatherford’s objections “should go to the weight of Dr. Wooley’s testimony, not its admissibility.” (Doc. No. 331, at 8.) a. Dr. Wooley’s Qualifications The Court agrees with Tesco that Dr. Wooley is qualified under Federal Rule of Evidence 702. Even if he does not have specific experience studying or working with pipe handling devices, his three degrees in engineering and his experience in oil fields sufficiently qualify Dr. Wooley as an expert on the subject matter of this case. Rule 702 does not require the extreme specificity of expertise that Weatherford proposes. Neither do the cases Weatherford cites in support of its argument. In Proveris Sci. Corp. v. Innovasystems, Inc., the Federal Circuit found no abuse of discretion when the district court limited the testimony relating to aerosol sprays used in drug delivery devices by an engineer whose sole relevant experience was “using plumes to maneuver satellites.” 536 F.3d 1256, 1267 (Fed.Cir.2008). In Sundance, Inc. v. DeMonte Fabricating Ltd., the Federal Circuit did find abuse of discretion where the district court allowed a patent lawyer with no technical expertise in the art to testify on the questions of infringement and validity. 550 F.3d 1356, 1363 (Fed.Cir.2008). Unlike the experts at issue in Proveris and Sundance, Dr. Wooley is a trained engineer who has technical experience in the field at issue in the case, oil drilling. “A witness qualified as an expert is not strictly confined to his area of practice but may testify concerning related applications; a lack of specialization does not affect the admissibility of the opinion, but only its weight.” Trenado v. Cooper Tire & Rubber Co., 2009 WL 5061775, at *2 (S.D.Tex. Dec. 15, 2009) (citing Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 176-77 (5th Cir.1990), abrogated on other grounds by Little v. Liquid Air. Corp., 37 F.3d 1069 (5th Cir.1994)); Peteet v. Dow Chemical Co., 868 F.2d 1428, 1431 (5th Cir.1989) (“The fact that Dr. Teitelbaum is not a specialist in any other field goes to the weight of his opinion, not its admissibility.”). Therefore, the jury may consider Dr. Wooley’s lack of more specific experience with casing running systems in evaluating the weight to give his testimony, but the Court finds Dr. Wooley to be qualified as an expert, b. Risk of Confusion Weatherford further argues that Dr. Wooley’s opinions are contrary to the Court’s claim construction and will thus confuse the jury. Weatherford’s primary argument is that Dr. Wooley’s expert report indicates that, if the link arms are connected to any intermediate surface between the top drive and the pipe engaging apparatus, then they are connected to the main body of the pipe engaging apparatus. This position, Weatherford contends, contradicts the Court’s construction of “link arms mounted by a pivotal connection to move with the top drive.” Tesco argues in response that Dr. Wooley’s report is in line with the Court’s construction, and that Dr. Wooley does acknowledge that there are intermediate surfaces that are “supported by” the top drive, and thus excluded from the patents. As discussed in Section II above, the application of the Court’s claim construction to the accused products is a question of fact for the jury. Therefore, the Court declines to rule on the precise situations in which an intermediate area is a part of the pipe engaging apparatus and those in which it is supported by the top drive. As a result, the testimony of Dr. Wooley, along with defense experts expressing contrary opinions, will assist the jury in determining whether the accused products infringe the patents-in-suit. Some risk of jury confusion is inevitable in applying the Court’s construction of the technical terms at issue in this case. See CytoLogix Corp. v. Ventana Medical Systems, Inc., 424 F.3d 1168, 1172 (Fed.Cir. 2005) (“The risk of confusing the jury is high when experts opine on claim construction before the jury even when ... the district court makes it clear to the jury that the district court’s claim constructions control.”) However, it is not sufficiently clear to the Court that Dr. Wooley’s report contradicts the claim construction rather than merely presenting one interpretation of how the construction applies to the accused products. Accordingly, the probative value of the report outweighs any risk of prejudice, and the motion to strike is denied. To the extent that Dr. Wooley’s testimony at trial contradicts the claim construction, as amended today, particular statements may be excluded if the Court finds that the risk of prejudice is sufficiently high. For the time being, however, the motion to strike is denied. D. Motion to Strike Testimony of Tommy Warren Frank’s moves to strike the testimony of Tesco’s expert Tommy Warren on the topic of claim construction. (Doc. No. 323.) Specifically, Frank’s argues that Tesco failed to timely disclose Mr. Warren as an expert on the topic of claim construction and so cannot now rely on his testimony in its Motion to Amend Claim Construction. Tesco responds that Warren merely testified at his deposition “as a person of ordinary skill in the art,” rather than an expert, on claim term meaning. Tesco further argues that Warren did provide opinions in his report with respect to several terms, and that his deposition testimony was only in response to questions from NOV’S counsel. Because the Court is not persuaded by Warren’s testimony with regard to proposed claim construction, it need not reach the issue of whether it is outside the scope of his expert report. IV. Motions for Summary Judgment A. Legal Standard for Summary Judgment A motion for summary judgment requires the Court to determine whether the moving party is entitled to judgment as a matter of law based on the evidence thus far presented. See Fed.R.Civ.P. 56(c)(2). “Summary judgment is appropriate when, drawing all justifiable inferences in the nonmovant’s favor, there exists no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” Transocean Offshore Deepwater Drilling, Inc. v. Maersk Contractors USA, Inc., 617 F.3d 1296, 1302 (Fed.Cir.2010). “[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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court may not make credibility determinations or weigh the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). “The court should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.’ ” Id. at 151, 120 S.Ct. 2097. Hearsay, conclusory allegations, unsubstantiated assertions, and unsupported speculation are not competent summary judgment evidence. Fed.R.Civ.P. 56(e)(1); see, e.g., McIntosh v. Partridge, 540 F.3d 315, 322 (5th Cir.2008); Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.1996) see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (noting that a non-movant’s bur- ’ den is “not satisfied with ‘some metaphysical doubt as to the material facts’ ”) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). B. Motions Regarding “Pivotal Connection” Claims Frank’s, NOV, and Weatherford all move for partial summary judgment that their accused products do not infringe on Tesco’s claims regarding the “pivotal connection” component of the patents-in-suit. (Doc. Nos. 289, 294, 296.) As discussed in Section II.A. above, whether the accused products infringe on those claims turns on whether their link arms are connected to the pipe engaging apparatus, the top drive, or an intermediate area. If they are connected to the pipe engaging apparatus, they are covered by the claims. If they are connected to the top drive, they are not covered by the claims. If they are in an intermediate area, they are only covered by the claims if they are not attached to a surface directly supported by the top drive. (See Doc. No. 176, Markman Order, at 10-14; Section II above.) 1. Legal Standard 35 U.S.C. § 271(a) provides, “Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.” Infringement is a question of fact, Technology Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1327 (Fed.Cir.2008), although the underlying claim construction is a question of law. Markman, 52 F.3d 967. The patentee has the burden to prove infringement by a preponderance of the evidence. Technology Licensing Corp., 545 F.3d at 1327. “An infringement issue is properly decided upon summary judgment when no reasonable jury could find that every limitation recited in the properly construed claim either is or is not found in the accused device either literally or under the doctrine of equivalents.” Gart v. Logitech, Inc., 254 F.3d 1334, 1339 (Fed.Cir. 2001). To constitute literal infringement, an accused product must have every element and limitation of the patent-in-suit. Builders Concrete, Inc. v. Bremerton Concrete Products Co., 757 F.2d 255, 257 (Fed. Cir.1985); Frank’s Casing Crew & Rental Tools, Inc. v. Weatherford Intern., Inc., 389 F.3d 1370, 1378 (Fed.Cir.2004). To constitute infringement under the doctrine of equivalents, the differences between elements of the accused product and the patented invention must be “insubstantial to one of ordinary skill in the art.” Wavetronix LLC v. EIS Electronic Integrated Systems, 573 F.3d 1343, 1360 (Fed.Cir.2009) (internal quotation marks omitted). Thus, a patentee “can prove equivalence by showing on a limitation-by-limitation basis that the accused product performs substantially the same function in substantially the same way with substantially the same result as each claim limitation of the patented product.” Id. However, “the determination of infringement under the doctrine of equivalents is limited by two primary legal doctrines: (1) prosecution history estoppel and (2) the ‘all elements’ rule,” the application of which are questions of law. Seachange Intern., Inc. v. C-COR, Inc., 413 F.3d 1361, 1378 (Fed.Cir.2005) (internal citation omitted). Where “a narrowing amendment has been made for a substantial reason relating to patentability,” prosecution history estoppel can prevent patentees from claiming infringement by any products that fall “between the original claim limitation and the amended claim limitation.” Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 344 F.3d 1359, 1367 (Fed.Cir.2003) (en banc). “[T]he ‘all elements rule’ provides that the doctrine of equivalents does not apply if applying the doctrine would vitiate an entire claim limitation.” Asyst Technologies, Inc. v. Emtrak, Inc., 402 F.3d 1188, 1195 (Fed.Cir.2005); see also Searfoss v. Pioneer Consol. Corp., 374 F.3d 1142, 1151 (Fed.Cir.2004) (summary judgment appropriate where finding of infringement under doctrine of equivalents would vitiate a claim requirement). In addition, the “[doctrine of] ensnarement bars a patentee from asserting a scope of equivalency that would encompass, or ‘ensnare,’ the prior art.” DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1322 (Fed.Cir.2009). 2. Frank’s Tesco alleges that Frank’s product SuperTAWG infringes on Tesco’s claims. The parties agree that the SuperTAWG consists of two components: the Praying Mantis, which contains link arms but no pipe engaging apparatus, and the TAWG, which is a pipe engaging apparatus. However, Frank’s views the Praying Mantis and the TAWG separately in its infringement analysis while Tesco insists that the SuperTAWG as a whole is the accused product. Frank’s argues that the Praying Mantis is non-infringing because its sub is connected above the TAWG, and because the link arms are solely supported by the top drive, not the pipe engaging apparatus. Tesco argues that the SuperTAWG is the accused product and must be viewed as a whole. Tesco further contends that the sub to which the Praying Mantis and its link arms are connected is part of the main body of the pipe engaging apparatus, and thus covered by the claims. 3. Weatherford Tesco alleges that Weatherford’s products TorkDrive 750HD, TorkDrive 500M, Compact External, and Compact External Plus infringe on Tesco’s claims. Weather-ford argues that the link arms are excluded from the patents’ coverage because they are attached to a surface that is supported by the top drive. Specifically, Weatherford argues that the link arms on its products are connected to the “TorkSub” or mandrel, which are supported by the top drive. In addition, Weather-ford contends that the weight of the link arms is completely supported by the top drive and bypasses the pipe engaging apparatus by remaining on the outside. Tesco argues that it is not sufficient for the TorkSub and mandrel to be supported by the top drive because every surface below the top drive is supported by the top drive, including the pipe engaging apparatus. Further, Tesco, relying on the testimony of Tommy Warren, argues that components are only part of the top drive if they “stay with the top drive day in and day out.” Because the accused Weather-ford products, including the link arms and the pipe engaging apparatuses, each attaches as a unit to the top drive, Tesco argues that they are part of the pipe engaging apparatus rather than the top drive. 4. NOV Tesco alleges that NOVs product CRT-350 infringes on the claims. NOV argues that the CRT-350’s link arms are not connected to the pipe engaging apparatus. Instead, they are connected to the “main shaft,” which is a sub or mandrel, via the “swivel.” NOV contends that the main shaft is not part of the pipe engaging apparatus and is supported by the top drive itself, so the CRT-350 does not infringe. NOV also argues that the load path of the link arms is supported only by the top drive and not by the pipe engaging apparatus. Tesco argues in response that the link arms are only connected to the top drive to the extent that the entire CRT-350 device is connected to the top drive, because the CRT-350 device as a whole attaches to the top drive. Tesco further argues that it is not sufficient for a device to be supported by the top drive because every surface below the top drive is supported by the top drive, including the pipe engaging apparatus. Tesco again argues that the load path is irrelevant to whether link arms are attached to the top drive or to surfaces supported by the top drive. Finally, Tesco argues that the main shaft — to which the link arms are connected — is part of the main body of the pipe engaging apparatus. 5. Analysis The Court finds that summary judgment is inappropriate for Defendants’ motions regarding non-infringement of the “pivotal connection” claims. At least two major disputes of material fact underlie the parties’ competing interpretations of how the Court’s claim construction applies to the accused products. First, genuine issues of material fact exist regarding whether the link arms on the accused products are attached to the pipe engaging apparatus. At the heart of this dispute is the question of whether particular components below the top drive constitute part of the “main body” of the pipe engaging apparatus or not. If they do constitute part of the main body — and thus part of the pipe engaging apparatus-then they are within the scope of the patents-in-suit. The Court’s construction of “main body” in this order clarifies that a main body may connect either directly or indirectly to the top drive. Therefore, the fact that a component connects directly to the top drive does not necessarily make it part of the main body of the pipe engaging apparatus. The Court’s construction also rejects the notion that the “main body” must include a housing for other parts. However, the Court’s construction does not delineate which components of the accused devices constitute a “main body,” as applying the claim construction to the accused devices is a question of fact for the jury. The parties fundamentally disagree about whether the link arms on the accused products are connected to the pipe engaging apparatuses. Defendants all contend they are not, while Tesco’s experts Warren and Dr. Wooley testify that they are. However, the parties’ dispute revolves around competing interpretations of the Markman Order and does not consider today’s amended claim construction — in particular, the Court’s construction of the term “main body.” Therefore, factual issues remain with regard to this question. Second, genuine issues of material fact exist regarding whether the link arms are attached either to a surface that is part of the top drive or to a surface that is directly supported by the top drive. In disagreeing with Tesco’s overly broad statement that it is not sufficient for a surface to be supported by the top drive because every surface is supported by the top drive, the Court today clarified its claim construction to exclude from the claims devices in which link arms are connected to surfaces “directly supported by” the top drive. In light of this clarification, there remain genuine factual disputes as to whether the surfaces to which the link arms are attached are part of, or “directly supported by” the top drive. The parties clearly disagree on these points, yet the evidence they provide does not address the claim construction as amended today. Therefore, Defendants are not entitled to summary judgment of non-infringement as to the “pivotal connection” claims. C. Motions Regarding “Channel Key” and “Anti-Rotation” Claims NOV and Frank’s move for partial summary judgment on the ground that their accused products do not include a “channel key” and are not “fitted for anti-rotation.” (Doc. Nos. 283, 291.) Three of Tesco’s claims (claims 18 and 43 of the '443 patent and claim 4 of the '324 patent) contain the “channel key” limitation and four (claims 25, 27, and 59 of the '443 patent and claim 12 of the '324 patent) contain the “fitted for anti-rotation” limitation. The Court has construed “channel key” to mean “a mechanical projection adapted to fit into a guide slot to prevent rotation,” and “fitted for anti-rotation” to mean “ ‘fitted for anti-rotation’ using ‘a key that fits into a guide slot extending from the top drive.’ ” Therefore, if the accused products do not contain a “channel key” and are not “fitted for anti-rotation” within the Court’s definitions of those terms, they do not infringe the claims that contain those limitations. 1. Legal Standard for Summary Judgment of Non-Infringement (Discussed in Section IV.B.1. above.) 2. The Accused Devices NOV’s accused product CRT-350 contains two mechanisms to prevent rotation of the device’s air swivel: a “torque dolly” and a set of chains or straps. Tesco argues that both mechanisms contain a “channel key” and are “fitted for anti-rotation.” NOV argues that the torque dolly is not a “key” because it is not designed to go inside of something. Rather, like eyeglass frames or tongs, the torque dolly arms are designed to receive a guide rail between them. NOV argues that the chains and straps do not constitute a “channel key” because they do not protrude out and so are also not “mechanical projections.” NOV further contends that the CRT-350 does not contain any guide slot, citing testimony from Tesco’s expert Gary Wooley in which Dr. Wooley states that the torque dolly does not fit into a slot, but rather infringes as equivalent. Regarding the chains/straps, NOV disputes Dr. Wooley’s contention that anything they wrapped around constitutes a guide slot. NOV also argues that, even if the CRT-350 did have a channel key and guide slot, the guide slot is not “extending from the top drive.” Frank’s argues that its SuperTAWG and FA-1 tools do not contain channel keys— and thus do not infringe these claims — for similar reasons to those described by NOV. Frank’s argues that its products contain essentially the same system as NOV’s for preventing rotation, wherein the “torque reaction kit” goes around the outside of a single guide rail or dual rails. Finally, Frank’s and NOV argue that their accused products cannot infringe these claims under the doctrine of equivalents because of prosecution history estoppel, the all elements rule, and ensnarement. Tesco, citing testimony from Dr. Wooley, argues that the torque dolly arms are mechanical projections that fit into a guide slot, such as the sides of an I-beam-shaped torque rail or the back of a square beam. Tesco argues that the chains do project out from the CRT-350. Tesco further argues that the chains must wrap around some sort of slot, or else they would “presumably risk slipping off of the top drive.” Tesco also argues that, even if the torque dolly arms do not fit into a guide slot, they still infringe under the doctrine of equivalents by performing the same anti-rotation function. Regarding the “fitted for anti-rotation” limitation, Tesco argues that both the top drive guide rails and the chains literally extend down from the top drive. Finally, Tesco argues that the doctrine of equivalents should apply because neither prosecution history estoppel, the all elements rule, or ensnarement applies, and the accused products contain substantially the same features as the “channel key” and “fitted for anti-rotation elements.” 3. Analysis a. Literal Infringement First, Tesco has failed to carry its burden to prove literal infringement of the “channel key” and “fitted for anti-rotation” claims. The evidence demonstrates that the torque dolly systems used in NOV’s and Frank’s accused devices do not literally constitute a “channel key” for purposes of that limitation. Although the torque dolly arms may be a “projection,” they cannot be said to be “adapted to fit into a guide slot.” Rather than fit into something that could reasonably be called a slot, the torque dolly arms fit around guide rails. Tesco’s evidence from Dr. Wooley’s testimony to support the argument that the accused devices contain channel keys and guide slots is based only on hypothetical iterations of the devices in which the torque reaction arms either fit into an “I-beam” or wrap around the back of a straight beam. Such speculation is insufficient to meet the preponderance of the evidence standard to prove infringement. Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1330 (Fed.Cir.2001) (“Under the precedent of this circuit, however, that a device is capable of being modified to operate in an infringing manner is not sufficient, by itself, to support a finding of infringement.”). Tesco presents no evidence that the accused devices actually function in that manner, and the only evidence it provides to suggest that the accused devices could even be modified to operate in such an infringing manner is 1) testimony from Frank’s expert James Brugman stating, “I suppose it’s possible” that a single or double I-beam could be used in that manner; and 2) testimony from Dr. Wooley about torque reaction kits generally, rather than Frank’s and NOV’s accused devices in particular. Cf. High Tech Medical Instrumentation, Inc. v. New Image Industries, Inc., 49 F.3d 1551, 1556 (Fed.Cir.1995) (“Of course, if a device is designed to be altered or assembled before operation, the manufacturer may be held liable for infringement if the device, as altered or assembled, infringes a valid patent.”) (emphasis added). Furthermore, Dr. Wooley acknowledged that the torque beam on the accused devices does not “extend from the top drive” and that there was no literal infringement of the “fitted for anti-rotation” claims. (Doc. No. 283-2, at 72, Wooley Dep. 361:12-21.) Neither does NOV’s chain/strap system literally constitute a “channel key.” Tesco presents no evidence that the chains or straps are adapted to fit into a guide slot. Tesco’s speculation that the chains or straps must fit into some type of slot or risk slipping is inadequate to raise an issue of fact. Although the Court may not determine the credibility to be given to Dr. Wooley’s testimony at this stage, the Court does find that his statement that whatever the chains or straps wrap around constitutes a “guide slot,” (see Doc. No. 325, Resp. to Mot. for Summary Judgment, at 13), is thoroughly contradicted by any ordinary meaning of the term “guide slot.” Tesco provides no evidence that the casing running tool contains any groove or indentation into which the chains fit in order to prevent rotation. As with the torque dolly system, Tesco’s unsupported speculation is insufficient to avoid summary judgment. (See Doc. No. 325, Resp. to Mot. for Summary Judgment, at 14 (“[Wjithout at least a depression or groove for them to wrap around and hold against, the chains/straps would presumably risk slipping off the top drive.”).) b. Doctrine of Equivalents i. Prosecution History Estoppel NOV’s and Frank’s accused products do not infringe two of the “channel key” claims under the doctrine of equivalents because prosecution history estoppel applies. Under the Festo test, there is a presumption that Tesco surrendered any claims equivalent to the “channel key” limitation. See Festo, 344 F.3d at 1367. Tesco initially submitted an independent claim 11, which did not contain the channel key limitation and was rejected; a dependent claim 14, which contained the channel key limitation and was allowed; and a dependent claim 19, which contains an “elevator control mechanism” limitation, and was allowed. Tesco then combined claim 11 with claim 19 to create the amended claim 11, and combined claim 11 with claim 14 to create the new claim 58. The PTO allowed both of those claims. Claim 58 in the amended application became claim 43 of the '443 patent. “[T]he rewriting of dependent claims into independent form coupled with the cancellation of the original independent claims creates a presumption of prosecution history estoppel.” Felix v. American Honda Motor Co., Inc., 562 F.3d 1167, 1182 (Fed.Cir.2009) (quoting Honeywell Intern. Inc. v. Hamilton Sundstrand Corp., 370 F.3d 1131, 1134 (Fed.Cir.2004) (en banc)). The presumption applies in this case because Tesco combined accepted dependent claim 14 (containing the channel key limitation) with rejected independent claim 11, and did not resubmit claim 11 in its original form. That does not end the inquiry, however, as Tesco may rebut the presumption by showing 1) that “an alleged equivalent would have been ‘unforeseeable at the