Full opinion text
STARK, District Judge: This action was brought by Plaintiff Leader Technologies, Inc. (“Leader”) against Defendant Facebook, Inc. (“Face-book”) alleging that Facebook’s website, available at www.facebook.com, infringes claims 1, 4, 7, 9, 11, 16, 21, 23, 25, 31, and 32 of U.S. Patent No. 7,139,761 (the “'761 patent”). A seven-day jury trial was held, and the jury returned a verdict finding that Facebook literally infringed each asserted claim of the '761 patent, but did not control or direct either its employees or its end users. The jury also concluded that the '761 patent was not invalid based on anticipation and obviousness, but was invalid based on the on sale bar and public use bar. Following the jury’s verdict, Facebook filed four Renewed Motions For Judgment As A Matter Of Law (D.I. 628, 629, 630, 631) and completed briefing on a Motion For Summary Judgment Of Invalidity Of Claims 1, 4, 7, 21, 23, 25, 31 And 32 Of U.S. Patent No. 7,139,761 [Summary Judgment Motion No. 1] (D.I. 382) in accordance with the Court’s instructions. In addition, Leader filed one Renewed Motion For Judgment As A Matter Of Law Or A New Trial (D.I. 626). For the reasons discussed, Facebook’s Renewed Motion For Judgment As A Matter Of Law Of No Indirect Infringement (D.I. 630) will be granted and Faeebook’s remaining Motions will be denied to the extent they seek judgment as a matter of law and denied as moot to the extent they seek a new trial. In addition, Leader’s Renewed Motion For Judgment As A Matter Of Law Or A New Trial (D.I. 626) will be denied. LEGAL STANDARDS I. Motion For Judgment As A Matter Of Law To prevail on a renewed motion for judgment as a matter of law following a jury trial, the moving party “ ‘must show that the jury’s findings, presumed or express, are not supported by substantial evidence or, if they were, that the legal conclusions implied [by] the jury’s verdict cannot in law be supported by those findings.’ ” Pannu v. Iolab Corp., 155 F.3d 1344, 1348 (Fed.Cir.1998) (quoting PerkinElmer Corp. v. Computervision Corp., 732 F.2d 888, 893 (Fed.Cir.1984)); accord Price v. Delaware Department of Correction, 40 F.Supp.2d 544, 549 (D.Del.1999). In assessing the sufficiency of the evidence, the court must give the non-moving party, “as [the] verdict winner, the benefit of all logical inferences that could be drawn from the evidence presented, resolve all conflicts in the evidence in his favor, and in general, view the record in the light most favorable to him.” Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1348 (3d Cir.), reh’g en banc denied, 1991 U.S.App. LEXIS 16758 (3d Cir.1991); see also Perkin-Elmer Corp., 732 F.2d at 893. The court may not evaluate the credibility of the witnesses, may not weigh the evidence, and may not substitute its view of the evidence for the jury’s view. See Price, 40 F.Supp.2d at 550. Rather, the court must determine whether the evidence reasonably supports the jury’s verdict. See Dawn Equip. Co. v. Kentucky Farms, Inc., 140 F.3d 1009, 1014 (Fed.Cir.1998); Gomez v. Allegheny Health Servs. Inc., 71 F.3d 1079, 1083 (3d Cir.1995) (describing standard as “whether there is evidence upon which a reasonable jury could properly have found its verdict”); 9A Wright & Miller, Federal Practice & Procedure § 2524 at 249-66 (3d ed.1995) (“The question is not whether there is literally no evidence supporting the party against whom the motion is directed, but whether there is evidence upon which the jury properly could find a verdict for that party.”). II. Motion For A New Trial In pertinent part, Federal Rule of Civil Procedure 59(a) provides: A new trial may be granted to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States. Among the most common reasons for granting a new trial are: (1) the jury’s verdict is against the clear weight of the evidence, and a new trial must be granted to prevent a miscarriage of justice; (2) newly discovered evidence exists that would likely alter the outcome of the trial; (3) improper conduct by an attorney or the court unfairly influenced the verdict; or (4) the jury’s verdict was facially inconsistent. See Zarow-Smith v. New Jersey Transit Rail Operations, 953 F.Supp. 581, 584 (D.N.J.1997). The decision to grant or deny a new trial is committed to the sound discretion of the district court. See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980); Olefins Trading, Inc. v. Han Yang Chem. Corp., 9 F.3d 282 (1993) (reviewing district court’s grant or denial of new trial motion under deferential “abuse of discretion” standard). However, where the ground for a new trial is that the jury’s verdict was against the great weight of the evidence, the court should proceed cautiously, because such a ruling would necessarily substitute the court’s judgment for that of the jury. See Klein v. Hollings, 992 F.2d 1285, 1290 (3d Cir.1993). Although the standard for grant of a new trial is less rigorous than the standard for grant of judgment as a matter of law in that the court need not view the evidence in the light most favorable to the verdict winner, a new trial should only be granted where “a miscarriage of justice would result if the verdict were to stand,” the verdict “cries out to be overturned,” or where the verdict “shocks [the] conscience.” Williamson, 926 F.2d at 1352; see also Price, 40 F.Supp.2d at 550. DISCUSSION I, Facebook’s Renewed Motion For Judgment As A Matter Of Law Of No Direct Infringement (D.I. 628) [Motion No. 1 of 4] A. Parties’ Contentions By its Motion, Facebook contends that the asserted claims of the '761 patent can only be infringed by Facebook through the combination of actions by Facebook and its end users. At trial, the jury concluded that Leader did not establish, by a preponderance of the evidence, that Facebook “controls or directs the actions of Face-book end users and/or Facebook employees.” (D.I. 610, Question # 3) As a result of the jury’s finding on this specific question and in light of Federal Circuit case law, Facebook contends that it is entitled to judgment as a matter of law on the issue of direct infringement. In response, Leader contends that Face-book’s Motion rests on the erroneous application of the standard for joint infringement. According to Leader, it asserted joint infringement as an alternative theory of liability with respect to only the method claims (claims 9, 11, and 16) of the '761 patent. Because sufficient evidence supports the jury’s verdict that Facebook directly infringed the method claims of the patent on its own accord, without regard to the actions of its end users or employees, Leader maintains that application of the joint infringement theory is not relevant to support the jury’s verdict on the method claims. As for the system and computer-readable media claims (claims 1, 4, 7, 21, 23, 25, 31, and 32), Leader contends that it never advanced a joint theory of infringement, because that theory only applies to method claims. Leader maintains that the system and computer-readable media claims are product claims and, therefore, do not require user performance. Accordingly, Leader contends that the jury’s verdict that Facebook directly infringes the '761 patent should be upheld, and Facebook’s Motion should be denied. B. Legal Principles For Direct Infringement “[D]irect infringement requires a single party to perform every step of a claimed method.” Akamai Technologies, Inc. v. Limelight Networks, Inc., 629 F.8d 1311 (Fed.Cir.2010). Liability for direct infringement cannot be avoided by having someone else carry out one or more of the claimed steps. See BMC Resources, Inc. v. Paymentech, L.P., 498 F.3d 1373, 1378-79 (Fed.Cir.2007). Thus, liability for direct infringement may be established under a joint infringement theory. As the Federal Circuit has explained: [W]here the actions of multiple parties combine to perform every step of a claimed method, the claim is directly infringed only if one party exercises “control or direction” over the entire process such that every step is attributable to the controlling party, i.e., the “mastermind.” ... At the other end of this multi-party spectrum, mere “arms-length cooperation” will not give rise to direct infringement by any party. Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318, 1329 (Fed.Cir.2008) (internal citations omitted). C. Whether Facebook Is Entitled To Judgment As A Matter Of Law Of No Direct Infringement Reviewing the jury’s verdict in the light most favorable to Leader, as the verdict winner, the Court concludes that sufficient evidence exists to support the jury’s verdict that Facebook alone performed each and every element of the asserted method claims (claims 9, 11 and 16) for purposes of establishing direct infringement. In full, independent claim 9 recites: A computer-implemented method of managing data, comprising computer-executable acts of: creating data within a user environment of a web-based computing platform via user interaction with the user environment by a user using an application, the data in the form of at least files and documents; dynamically associating metadata with the data, the data and metadata stored on a storage component of the web-based computing platform, the metadata includes information related to the user, the data, the application, and the user environment; tracking movement of the user from the user environment of the web-based computing platform to a second user environment of the web-based computing platform; and dynamically updating the stored meta-data with an association of the data, the application, and the second user environment wherein the u,ser employs at least one of the application and the data from the second environment. (emphasis added) According to Facebook, the underlined elements require user interaction, while the remaining elements describe operations performed by a “web-based computing platform.” Thus, Facebook maintains that at least two actors are required to infringe claim 9. In the Court’s view, however, Facebook’s reading of the claim fails to consider its full context. As recited in the preamble, the method asserted in claim 9 is comprised of “computer-executable acts.” Thus, there is no requirement of user interaction recited in the claim. Rather, claim 9 claims the back-end process performed by the source code. See Fantasy Sports Props., Inc. v. Sports-Line.com, Inc., 287 F.3d 1108, 1118 (Fed. Cir.2002) (“[A]lthough a user must activate the function programmed into a piece of software by selecting those options, the user is only activating means that are already present in the underlying software.”). At trial, Leader presented sufficient evidence to demonstrate that Facebook’s source code performs each element of the claimed method. As to the “creating data” step highlighted by Facebook, Leader presented substantial evidence that the system creates a data file containing a copy of the data being uploaded. Similarly, Leader presented substantial evidence that the source code performs the dynamically updating step. Leader’s expert, Dr. Vigna, testified extensively regarding these issues and engaged in a detailed step-by-step analysis of the manner in which the source code carries out the claimed methods. The jury was free to credit Dr. Vigna’s testimony over the contrary testimony of Facebook’s expert. Accordingly, the Court concludes that sufficient evidence was presented to sustain the jury’s verdict that Facebook directly infringes claim 9, the independent method claim and, therefore, that Facebook also directly infringes dependent method claims 11 and 16. As for the remaining system and computer-readable media claims (claims 25, 31, and 32), the Court concludes that Face-book’s joint infringement argument is irrelevant. The Court instructed the jury on the alternate theory of joint infringement only with respect to the asserted method claims of the '761 patent. (Tr. 1923:21-1924:2 (“For Facebook to be liable for the acts of third parties, Leader must have proven, by a preponderance of the evidence, that Facebook controls or directs the activity of those parties who perform the steps of the method claims ”) (emphasis added); D.I. 601 (Final Jury Instructions) at 28 (same)) Consistent with this instruction, the verdict sheet framed the question of direction or control as applying only to method claims 9, 11 and 16. (D.I. 610 (Verdict) at 2) Facebook points out that it objected to limiting the control or direction question to claims 9, 11, and 16, and contends that Federal Circuit case law applies the control or direction requirement to both method and system claims. In support of its argument, Facebook directs the Court to Golden Hour Data Sys., Inc. v. emsCharts, Inc., 614 F.3d 1367 (Fed.Cir.2010), for the proposition that “the Federal Circuit in Golden Hour recently affirmed judgment as a matter of law in favor of an accused infringer as to both method and system claims when, as here, the plaintiff failed to show ‘control or direction.’ ” (D.I. 632 at 5) In the Court’s view, however, Golden Hour does not support Facebook’s position. As the Federal Circuit explained in Golden Hour, the parties agreed to submit the asserted claims to the jury “only on a joint infringement theory.” 614 F.3d at 1381. As a result, the Federal Circuit recognized that the jury’s finding of infringement could be sustained only if there was control or direction. In this case, Leader limited application of its joint theory of infringement to the asserted method claims as an alternative argument. Moreover, Federal Circuit case law suggests that the expansion of liability arising from joint infringement more often applies to method claims, rather than system claims. See Muniauction, Inc., 532 F.3d at 1329 (holding that “where the actions of multiple parties combine to perform every step of a claimed method, the claim is directly infringed only if one party exercises ‘control or direction’ over the entire process”) (emphasis added); Akamai Technologies, Inc., 629 F.3d at 1318-19 (discussing joint infringement in context of method claims and stating that “the ‘control or direction’ test of BMC Resources established a foundational basis on which to determine liability for direct infringement of method claims by joint parties ”) (emphasis added). At trial, Leader presented evidence in the form of Facebook’s documents, source code, and testimony from Facebook’s employees to establish that the Facebook system meets each element of the asserted system and computer-readable media claims. (Tr. 587:9-19; 588:2-8; 655:17-656:4; 666:17-667:7; 670:17-22; 674:6-12; 817:10-818:20; 819:1-12; see also Hopkins Decl. Ex. 29 at 1-96; 150-322) The Court concludes that the evidence presented by Leader is sufficient to sustain the jury’s verdict that Facebook directly infringes the system and computer readable media claims. To the extent Facebook suggests that the system and computer-readable media claims require user interaction to create data, the Court does not understand these claims to require user interaction and instead concludes that they pertain to the functionality of the back-end of the claimed systems. Accordingly, the Court will deny Facebook’s Renewed Motion For Judgment As A Matter Of Law Of No Direct Infringement. II. Facebook’s Renewed Motion For Judgment As A Matter Of Law Of No Literal Infringement And No Infringement Under The Doctrine of Equivalents (D.I. 629) [Motion No. 2 of 4] A. Literal Infringement 1. Parties’ Contentions By its Motion, Facebook contends that it is entitled to judgment as a matter of law on Leader’s claim of literal infringement, because the Facebook website lacks at least two elements of each of the asserted claims of the '761 patent. Using claim 1 of the '761 patent as an example, Facebook contends that its website does not perform the elements requiring: (1) “storage of metadata in a first context, environment or workspace, followed by updating of that same metadata in a second context, environment or workspace,” and (2) “that this same metadata be updated ‘dynamically,’ which the Court construed to mean automatically and in response to the user’s movement to a second context, environment or workspace.” (D.I. 633 at 1) Face-book contends that “[bjecause Leader could not establish that Facebook satisfied either of these elements at trial, it made improper legal arguments to the jury that contradicted the Court’s claim construction.” (Id. at 2) In response, Leader contends that Face-book’s arguments are an attempt to revisit and distort the Court’s claim construction. Leader contends that Facebook’s argument regarding “updating the stored metadata” is an attempt to recapture the narrow definition of “metadata” proposed by Facebook during claim construction and rejected by the Court. Leader also contends that the Court adopted Facebook’s proposed definition for the term “dynamically” and, therefore, Facebook cannot now seek modification of that term. Apart from already decided claim construction issues, Leader contends that Facebook’s motion rests on a factual challenge to the credibility of Leader’s expert, Dr. Vigna, and the manner in which Dr. Vigna applied the Court’s claim constructions to the Facebook website. Because Leader presented substantial evidence to support the jury’s verdict that Facebook infringes the '761 patent, Leader contends that Face-book is not entitled to judgment as a matter of law. 2. Legal Principles For Literal Infringement Infringement is a two step inquiry. Step one requires the Court to construe the disputed terms of the patent as a matter of law. See Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed.Cir.2000). Step two is a factual inquiry that requires the properly construed claims to be compared to the accused device. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). “Literal infringement of a claim exists when every limitation recited in the claim is found in the accused device, i.e., when the properly construed claim reads on the accused device exactly.” Amhil Enters., Ltd. v. Wawa, 81 F.3d 1554, 1564 (Fed.Cir. 1996). This determination requires an element-by-element basis; if an element of the claim is not present in the accused device, then the device does not literally infringe the claim. See Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1310 (Fed.Cir.2005). The party asserting infringement has the burden of proof and must meet its burden by a preponderance of the evidence. See SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir. 1988). 3. Whether Facebook Is Entitled To Judgment As A Matter Of Law Of No Literal Infringement After reviewing the evidence presented to the jury in the light most favorable to Leader, as the verdict winner, the Court concludes that substantial evidence supports the jury’s verdict that Facebook literally infringes the asserted claims of the '761 patent. Facebook contends that the phrase “stored metadata” used throughout claim 1 of the '761 patent refers back to the same metadata that was stored in the first context. In support of its argument, Facebook directs the Court to claim construction principles concerning the meaning of the definite article, “the.” Facebook contends that the claim does not differentiate between “the stored metadata” in each of the two contexts described by the claim, e.g., the first context and the second context, and, therefore, the reference to “the stored metadata” must refer back to the “metadata stored on a storage component.” Thus, Facebook maintains that Leader was required to prove two things to establish literal infringement: “(1) that metadata is stored in the first context, environment or workspace, and that (2) this same stored metadata is then updated in the second context, environment or workspace.” (D.I. 633 at 5) Although Facebook denies that its argument is an attempt to reargue claim construction and contends that its position is consistent with the Court’s definition of the term “metadata,” the Court disagrees. During claim construction, Facebook sought to define “metadata” by reference to the user context as “a stored item of information associated with the user’s data that identifies at least the context, user workspace or user environment in which the user and the data currently reside.” (D.I. 191 at 15) The Court rejected this definition and concluded that “metadata” should be construed in accordance with its plain and ordinary meaning. The Court will not allow Facebook to recapture post-trial what it lost during claim construction. At trial, Dr. Vigna testified that the Facebook website captures context information about an uploaded file and stores this information in metadata. (Tr. 785:19-786:1) Dr. Vigna was unequivocal that the “context information” of the Facebook website is part of the metadata stored on the storage component. (Tr. 788:19-789:9; see also Tr. 776:20-21; 779:3-5; 781:24-782:4; 784:6-9) Dr. Vigna went on to explain several examples of the manner in which the Facebook website updates the metadata by adding entries to tables or other data components within the metadata as a user accesses data provided in a first context from a second context. For example, Dr. Vigna explained that a user can access his own profile picture by writing on the wall of another user or can access his profile picture by joining a group or fanning a page. (Tr. 593:10-604:8, 605:14-607:21, 631:9-634:11, 644:2-16) In both instances, the Facebook website updates metadata by adding entries to the Minitable of the user, the wall table of the target, and/or the table of the group or page that the user is joining. Facebook contends that Dr. Vigna’s testimony, at most, demonstrates features of the Facebook website that result “in the generation of new and unrelated metadata.” (D.I. 633 at 5) In this regard, Facebook maintains that Dr. Vigna never identified any instance in which the same metadata was ever modified or changed after it was stored. For example, if a user uploads a photo to Facebook and moves to another page, such as a user profile, and writes on another user’s wall, this is a change from the first context to a second context which results in the creation of new metadata. However, Face-book contends that this new metadata has nothing to do with the originally uploaded photo. According to Facebook, the context information about the photo was never modified or changed in any way after it was stored. (Id.) In the Court’s view, Facebook’s argument is deficient for two reasons. First, the term “updating” was never construed to mean “modifying or changing” existing data, as is required to support Facebook’s current argument. Although Facebook initially requested the Court to construe the term “updating” to mean “modifying existing data to make current,” Facebook withdrew that proposed construction and agreed to the ordinary meaning of the term “updating.” (D.I. 191 at 40; D.I. 219) Moreover, Facebook never proposed that the Court construe the entire term “updating the stored metadata.” Thus, Facebook’s arguments rest on claim construction arguments which have been waived and, therefore, they cannot be used to overturn the jury’s verdict. Second, the claims of the '761 patent do not require the context information to be updated as Facebook contends. Rather, the claims only require that the metadata be updated, and Dr. Vigna’s testimony more than amply supports a finding that this claim element is met in the accused Face-book website. Facebook also contends that Leader failed to prove, by a preponderance of the evidence, that the Facebook website has a tracking component that dynamically updates stored metadata based on the user’s movement. In making this argument, Facebook recognizes that the Court construed the term “dynamically” to mean “automatically and in response to the preceding event,” but contends that Leader improperly argued to the jury that the term “preceding event” could be a preceding event in the accused system, rather than the preceding event described in the claim. (D.I. 633 at 7) Facebook contends that Leader’s argument — that the “preceding event” may be any event in the system — was precluded by Judge Farnan’s claim construction order. (Id. at 8) According to Facebook, “[f]or purposes of the ‘dynamically updating’ element of each asserted claim, the only ‘identified action by the user’ that could correspond to ‘the preceding event’ was the user’s movement from a first context to a second.” (Id.) If the phrase “preceding event” referred to some event taken at a later time by the user of the accused system, Facebook contends that Judge Farnan would have construed the term “dynamically” to mean “automatically and in response to any preceding event, or any event in the system, rather than us[ing] the term ‘the preceding event,’ with the only frame of reference being the language of the claims.” (Id.) In the Court’s view, Facebook’s argument is an attempt to further limit the Court’s construction of the term “dynamically” to include limitations that were not proposed by Facebook during claim construction. As Leader points out, Face-book’s argument rests on construing the term “dynamically” to mean “automatically and in response to the change of the user from the first context to a second context.” (D.I. 643 at 11) However, the Court adopted the construction of the term “dynamically” proposed by Facebook and, therefore, the Court is persuaded that Facebook is estopped from seeking modifications of a construction the Court adopted at Facebook’s insistence. See Interactive Gift Express, Inc. v. CompuServe Inc., 256 F.3d 1323, 1347-48 (Fed.Cir.2001) (holding that party is precluded from offering claim construction not previously raised that broadens or narrows scope of claim); see also Loral Fairchild Corp. v. Victor Co., 911 F.Supp. 76, 80-81 (E.D.N.Y.1996) (holding that party is estopped from proposing alternative claim construction that broadens scope of claim after close of discovery). At trial, Dr. Vigna applied the Court’s construction of the term dynamically and explained, through numerous examples, that the Facebook website infringed the tracking component of the claims. According to Dr. Vigna, “the moment the users share in the how are you message in response to that event, automatically a story is created in the metadata. Now this story is based on the fact that you change from one profile to another.” (Tr. 664:12-19) He went on to explain: [T]his is an important aspect of the system, the fact that what you do is based on how you change your access in the system. You go to one profile to another, the fact that you found the Giants’ page and not the Philadelphia Eagles is taken into account. So the metadata is based on this particular change in access. (Tr. 665:6-13) Dr. Vigna explained that the Facebook website tracks user movement from one environment to another. As the user performs an action in the second environment, the Facebook website then updates the metadata with the tracking information based on the user’s change to the second context. (Tr. 665:14-666:16) Dr. Vigna’s testimony is supported by the source code. (Tr. 594:14-19; 637:18-640:12) To the extent Facebook disagrees with Dr. Vigna’s application of the Court’s claim construction to its website, that disagreement amounts to a factual dispute which was within the province of the jury to resolve. In sum, the Court concludes that the jury’s verdict of literal infringement is supported by substantial evidence. Accordingly, the Court will deny Facebook’s Motion to the extent it seeks judgment as a matter of law on the issue of literal infringement of the asserted claims of the '761 patent. B. Doctrine Of Equivalents Facebook next contends that it is entitled to judgment as a matter of law on infringement under the doctrine of equivalents, if the Court determines that a new trial on infringement is appropriate. The jury found that Facebook literally infringed the '761 patent and, therefore, concluded that Facebook could not be liable for infringement under the doctrine of equivalents. The Court has concluded that this verdict is supported by substantial evidence and, for the reasons discussed below, a new trial is not warranted. Accordingly, the Court will deny as moot Facebook’s Motion to the extent it seeks judgment as a matter of law on the doctrine of equivalents. C. New Trial On Infringement In the alternative, Facebook requests the Court to order a new trial on infringement. Specifically, Facebook contends that: (1) Dr. Vigna’s trial testimony exceeded the scope of his expert report; (2) the jury was improperly presented with the claim construction dispute concerning the meaning of the term “preceding event,” which should have been clarified by the Court in the first instance; and (3) the jury’s verdict was against the clear weight of the evidence. As Facebook recognizes, an invalid patent cannot be infringed. See, e.g. Richdel, Inc. v. Sunspool Corp., 714 F.2d 1573, 1580 (Fed.Cir.1983). Thus, Face-book’s argument for a new trial on infringement is only relevant “[i]f the Court were nonetheless to enter judgment in favor of Leader, or grant Leader a new trial on any issue on which Facebook prevailed” at trial. (D.I. 633 at 14) For the reasons discussed infra, the jury’s verdict on invalidity based on the application of the on sale bar and public use bar will not be disturbed. Accordingly, the Court will deny as moot Facebook’s Motion to the extent it seeks a new trial on infringement. III. Facebook’s Renewed Motion For Judgment As A Matter Of Law Of No Indirect Infringement (D.I. 630) [Motion No. 3 of 4] A. Parties’ Contentions By its Motion, Facebook requests judgment as a matter of law with respect to Leader’s claims for indirect infringement based on alleged inducement of infringement and contributory infringement. In support of its request, Facebook points out that the Court refused to instruct the jury on either inducement or contributory infringement. In response, Leader contends that Face-book’s motion for judgment as a matter of law is procedurally improper precisely because the Court never allowed the jury to consider the issue. Because there is no verdict to challenge, Leader contends that Facebook cannot maintain its motion. Although Leader recognizes that the Court decided the issue of indirect infringement in favor of Facebook, Leader clarifies that it “has not abandoned its indirect infringement claim” and maintains that “[t]he trial record includes sufficient evidence that Facebook indirectly infringes the '761 patent.” (D.I. 644 at 2) B. Whether Facebook Is Entitled To Judgment As A Matter Of Law Of No Indirect Infringement Following the conclusion of the parties’ presentation of the evidence before the jury, the Court held a prayer conference with the parties. With respect to the issue of indirect infringement, the Court stated: ... I’m not going to be instructing the jury on theories of indirect infringement. I’m only instructing on direct infringement, so I’m not including any instruction on induced infringement or contributory infringement. I don’t believe there has been evidence from which the jury could find that any third party other than Face-book is the direct infringer, nor do I think there is any evidence of Face-book’s knowledge of the '761 patent at this trial. (Tr. 1884:13-24) Following the Court’s comments and prior to submitting the case to the jury, Facebook filed a Motion For Judgment As A Matter Of Law Under Federal Rule of Civil Procedure 50(a) seeking, among other things, judgment as a matter of law on Leader’s indirect infringement claims. Rule 50(a)(1) provides: (1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. (2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment. The Court’s comments at the prayer conference were intended to be a finding that a reasonable jury would not have a legally sufficient basis to find in favor of Leader on its indirect infringement claims. Accordingly, the Court concludes that Facebook is entitled to judgment as a matter of law on Leader’s claims of contributory infringement and induced infringement and, therefore, the Court will grant Face-book’s Motion For Judgment As A Matter Of Law Of No Indirect Infringement. IV. Facebook’s Renewed Motion For Judgment As A Matter Of Law Of Invalidity (D.I. 631) [Motion No. 4 of 4] A. Anticipation 1. Parties’ Contentions By its Motion, Facebook contends that it is entitled to judgment as a matter of law that the '761 patent is invalid as anticipated by three prior art references; U.S. Patent No. 6,236,994 (“Swartz”), iManage Desk Site 6.0 User Reference Manual (“iManage”), and/or European Patent Application No. EP 1 087 306A2 (“Hubert”). Facebook contends that it provided clear and convincing evidence from its expert, Dr. Greenberg, that each of these prior art references discloses each limitation of the '761 patent, Facebook contends that Leader’s expert, Dr. Herbsleb, offered unsupported opinions that the references lack the “context component” and “tracking component” set forth in the '761 patent and, therefore, Leader failed to rebut Facebook’s proof of invalidity. In response, Leader contends that the parties’ arguments rest on the respective opinions of their expert witnesses, and the jury was entitled to credit the testimony of Leader’s expert. Because the Court may not re-weigh the jury’s factual determinations, Leader requests that the Court deny Facebook’s Motion. 2. Legal Principles For Anticipation “Anticipation is a factual determination that is reviewed for substantial evidence when decided by a jury.” Koito Mfg. Co., Ltd. v. Tum-Key-Tech, LLC, 381 F.3d 1142, 1149 (Fed.Cir.2004). An invention is anticipated under 35 U.S.C. § 102(b) if it “was patented or described in a printed publication in this or a foreign country ... more than one year prior to the date of the application for patent in the United States.” “A patent is invalid for anticipation if a single prior art reference discloses each and every limitation of the claimed invention.” Schering Corp. v. Geneva Pharm., 339 F.3d 1373, 1377 (Fed. Cir.2003). Such disclosure can be explicit or inherent in the prior art. See Continental Can Co. v. Monsanto Co., 948 F.2d 1264, 1268 (Fed.Cir.1991). However, mere disclosure of each and every limitation of a claim is not enough for anticipation. “An anticipating reference must enable that which it is asserted to anticipate.” Abbott Labs. v. Sandoz, Inc., 544 F.3d 1341, 1345 (Fed.Cir.2008). Furthermore, a single pri- or art reference must also disclose the limitations as arranged in the claim. See Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359,1371 (Fed.Cir.2008) (“[U]nless a reference discloses within the four corners of the document not only all of the limitations claimed but also all of the limitations arranged or combined in the same way as recited in the claim, it cannot be said to prove prior invention of the thing claimed and, thus, cannot anticipate under 35 U.S.C. § 102.”). As with all challenges to the validity of a patent, the party seeking to invalidate a patent bears the burden of proving anticipation by clear and convincing evidence. See Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1375 (Fed.Cir.1986). 3. Whether Facebook Is Entitled To Judgment As A Matter Of Law That The '761 Patent Is Invalid As Anticipated After reviewing the evidence presented at trial, the Court concludes that substantial evidence supports the jury’s verdict in favor of Leader on the issue of anticipation. The parties’ arguments rested on a classic “battle of the experts.” Dr. Greenberg, on behalf of Facebook, and Dr. Herbsleb, on behalf of Leader, both offered testimony regarding the prior art and whether it disclosed each element of the '761 patent. In particular, Dr. Herbsleb testified that each of the prior art references discloses a document centric system which tracks the movement of and/or changes made to a document, but does not track the movements of a user from different contexts or environments. For example, in the case of the iManage prior art, Dr. Herbsleb testified that the iManage User Manual discloses a system that keeps a history of what happens to the document. (Tr. 1796:6-1800:6) Although Dr. Greenberg relied on Figure 3.26 of the User Manual to support his argument that it tracks user movement, Dr. Herbsleb countered this testimony by explaining that, in his opinion, Figure 3.26 shows a history of a particular document and tracks the changes to the document, not the movements of a user. (Tr. 1797:8-15, 19-20; DTX 1010 at 83, Fig. 3.26) Directing the jury’s attention to Figure 3.26, Dr. Herbsleb stated, “as you can see here, these are all entries [sic] of documents. So it doesn’t track users at all.” (Tr. 1797:3-20) Similarly, regarding the Hubert reference, Dr. Herbsleb testified that Hubert lacks any user movement. (Tr. 1814:1-5) The Hubert reference explains that it discloses a metadocument that tracks actions performed on the document and its location, not user movement. (DTX 922, ¶ 0011) In this regard, Dr. Herbsleb testified that Hubert “doesn’t have any sense of users doing anything except it’s recorded in history of a document. So again it’s just sort of keeping a document history.” (tr. 1809:10-19; 1814:14-22) Dr. Green-berg directed the jury to Figure 2 in Hubert to support his contention that Hubert tracks a user, but Dr. Herbsleb countered Dr. Greenberg’s testimony, explaining that in Dr. Herbsleb’s opinion Figure 2 shows the transfer of a metadocument from one user (source) to another over the Internet. (Tr. 1812:16-1813:24) As Dr. Herbsleb explained, Figure 2 shows no user movement, let alone tracking of the movement, because “it’s just a document being sent from one user to the next.” (Tr. 1813:23-24) Lastly, regarding Swartz, Dr. Herbsleb testified that Swartz does not disclose user movement but instead tracks the steps that go into creating a report. (Tr. 1824:23-1825:4) Dr. Greenberg relied on portions of Swartz directed to the steps used to create the reports to support his opinion that user movement is tracked. (DTX 919, col. 6:22-25; Tr. 1452:9-1459:22) However, Dr. Herbsleb explained that, in his opinion [Swartz is] talking about tracking what’s going on in this regulatory compliance scheme, what’s being done to the documents, what’s being done to the data. There’s no sense at all of it tracking people, or tracking users or having even workspaces for users. So this is a completely different type of thing. (Tr. 1829:16-23) As succinctly stated by Dr. Herbsleb, Swartz “doesn’t care about users.” (Tr. 1824:19-20,1825:7-8) In addition to his testimony concerning the lack of user tracking, Dr. Herbsleb further testified that each of the prior art references offered by Facebook also lacks the context, user environment, or user workspace element claimed in the '761 patent. (Tr. 1811:7-11 (Hubert); 1797:24-1799:13 (iManage); Tr. 1829:4-21 (Swartz)) Although Dr. Greenberg offered contrary testimony, the jury was free to credit Dr. Herbsleb’s testimony over Dr. Greenberg’s testimony. In sum, the Court concludes that the record contains ample evidence to support the jury’s finding that Swartz, iManage, and Hubert lack the user tracking and context elements of the '761 patent. The jury was entitled to weigh the credibility of the parties’ competing experts on anticipation and conclude that Dr. Herbsleb’s testimony was more reliable. Accordingly, the Court finds no reason to disturb the jury’s verdict, which is supported by substantial evidence, and, therefore, the Court will deny Facebook’s Motion to the extent that it seeks judgment as a matter of law with regard to invalidity based on anticipation. B. Obviousness 1. Parties’ Contentions By its Motion, Facebook also contends that the '761 patent is obvious in light of U.S. Patent No. 5,434,403 (“Ausems”) and the Swartz, iManage, and/or Hubert references, taken alone or in combination. Facebook contends that these references disclose the use of a portable wireless device in connection with the disclosed systems and methods. Facebook further maintains that Dr. Greenberg’s testimony was sufficient to establish, by clear and convincing evidence, that the invention claimed in the '761 patent would have been obvious to one skilled in the art. In response, Leader contends that because the asserted references lack the tracking and context elements, for the reasons already discussed in connection with anticipation, they cannot render the '761 patent obvious. Leader also contends that Facebook failed to engage in an element-by-element analysis of the prior art and, as a result, Facebook’s evidence was insufficient to allow a determination of which elements would be obvious to combine from which prior art reference. Leader further maintains that Facebook offered only conclusory testimony from Dr. Green-berg that it would have been obvious to combine the Ausems reference with iManage, Hubert, or Swartz. In addition, Leader maintains that the secondary considerations of non-obviousness fully support the jury’s verdict. 2. Legal Principles For Obviousness A patent is invalid for obviousness “if the difference between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” 35 U.S.C. § 103(a). “Obviousness is a question of law based on underlying findings of fact.” In re Kubin, 561 F.3d 1351, 1355 (Fed.Cir. 2009). The relevant factual inquires are derived from the Supreme Court’s decision in Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), and are referred to as the Graham factors. The Graham factors include; (1) the scope and content of the prior art; (2) the differences between the claimed invention and the prior art; (3) the level of ordinary skill in the art; and (4) secondary considerations of non-obviousness, such as commercial success, long felt but unresolved need, failure of others, acquiescence of others in the industry that the patent is valid, and unexpected results. “An obviousness determination [under § 103] is not the result of a rigid formula disassociated from the consideration of the facts of a case. Indeed, the common sense of those skilled in the art demonstrates why some combinations would have been obvious where others would not.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1161 (Fed.Cir.2007). The party challenging a patent’s validity based on obviousness must demonstrate by clear and convincing evidence that the invention described in the patent would have been obvious to a person of ordinary skill in the art at the time the invention was made. See Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1359-60 (Fed.Cir.2007). 3. Whether Facebook Is Entitled To Judgment As A Matter Of Law That The '761 Patent Is Invalid As Obvious As discussed in the context of anticipation, the Court concludes that sufficient evidence exists to support a finding that the prior art references lack the tracking and context elements of the '761 patent. Without these elements, the prior art patents identified by Facebook cannot render the claimed invention obvious. Moreover, the Court finds ample evidence of non-obviousness which supports the jury’s verdict, including that the Facebook website is a commercial success, as stipulated by Facebook. (D.I. 601 at 47) Dr. Herbsleb further testified that the '761 patent addressed a long felt need in the industry. (Tr. 1847:4-1848:20) Although Dr. Greenberg testified to the contrary, the jury was free to reject his testimony and credit the testimony of Dr. Herbsleb regarding the secondary considerations of non-obviousness, as well as the absence of the context and tracking elements in the prior art as already discussed. Accordingly, the Court will deny Facebook’s Motion to the extent that it seeks judgment as a matter of law with regard to invalidity based on obviousness. C. New Trial On Invalidity In the alternative, Facebook requests the Court to order a new trial on invalidity. Specifically, Facebook contends that a new trial on anticipation and/or obviousness in light of the Swartz reference is warranted, because Leader’s counsel improperly and prejudicially implied, and then stated to the jury, the false contention that the Swartz reference was considered by the PTO during the prosecution of the '761 patent. Facebook’s argument regarding a new trial on invalidity is only relevant “[i]f the Court were ... inclined to enter judgment in favor of Leader for any reason or grant any request by Leader for a new trial on the prior use and on sale bar defenses.” (D.I. 635 at 17) Because the jury’s verdict of invalidity based upon the prior use and on sale bar defenses will not be disturbed, see infra, the Court need not address Facebook’s alternative argument for a new trial. Accordingly, the Court will deny as moot Facebook’s Motion to the extent it seeks a new trial on invalidity based on anticipation and/or obviousness in light of Swartz. V. Facebook’s Motion For Summary Judgment Of Invalidity Of Claims 1, 4, 7, 21, 23, 25, 31, And 32 Of U.S. Patent No. 7,139,761 (D.I. 382) [Summary Judgment Motion No. 1] A. Parties’ Contentions By its Motion, Facebook contends that claims 1, 21, and 23 of the '761 patent are invalid as indefinite under the Federal Circuit’s decision in IPXL Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d 1377 (Fed.Cir. 2005). According to Facebook, these claims are indefinite, because they impermissibly claim both an apparatus and a method of using that apparatus. Specifically, Facebook contends that claims 1 and 23 cover an apparatus or system for facilitating data management and a method for using that system through which “the user accesses the data from the second” context or workspace. Facebook also contends that claim 21 covers both a computer readable medium, such as a DVD, and a method of using that medium in which “the user employs the application and data from the second user workspace.” Because, in Facebook’s view, independent claims 1, 21, and 23 are invalid, Facebook further contends that dependent claims 4, 7, 25, 31, and 32 are also invalid. In response, Leader contends that Face-book waived its indefiniteness argument under IPXL by offering a claim construction for each of the disputed terms that supports its indefiniteness argument. Leader further contends that both parties’ experts fully understood the disputed claims and, therefore, the claims cannot be indefinite as a matter of law. B. Applicable Legal Principles An issued patent is presumed valid and, therefore, invalidity must be proven by clear and convincing evidence. 35 U.S.C. § 282; Metabolite Labs., Inc. v. Laboratory Carp, of America Holdings, 370 F.3d 1354, 1365 (Fed.Cir.2004). “A claim is considered indefinite if it does not reasonably apprise those skilled in the art of its scope.” IPXL, 430 F.3d at 1384. The Federal Circuit has taken a narrow approach to indefiniteness: We have not insisted that claims be plain on their face in order to avoid condemnation for indefiniteness; rather, what we have asked is that the claims be amenable to construction, however difficult that task may be. If a claim is insolubly ambiguous, and no narrowing construction can properly be adopted, we have held the claim indefinite. If the meaning of the claim is discernible, even though the task may be formidable and the conclusion may be one over which reasonable persons will disagree, we have held the claim sufficiently clear to avoid invalidity on indefiniteness grounds. Exxon Research & Engineering Co. v. United States, 265 F.3d 1371, 1375 (Fed. Cir.2001). Because a method and an apparatus represent two different statutory classes of invention, the combination of the two classes into a single claim creates ambiguity. See id. For example, when the two claims are combined, “a manufacturer or seller of the claimed apparatus would not know from the claim whether it might also be liable for contributory infringement because a buyer or user of the apparatus later performs the claimed method of using the apparatus.” Id. Thus, this type of hybrid claim “is not sufficiently precise to provide competitors with an accurate determination of the ‘metes and bounds’ of protection involved” and, therefore, such claims are invalid as indefinite under 35 U.S.C. § 112, ¶ 2. The determination that a claim is indefinite is “a legal conclusion that is drawn from the court’s performance of its duty as the construer of patent claims.” Exxon Research, 265 F.3d at 1376. C. Whether Facebook Is Entitled To Judgment As A Matter Of Law That The '761 Patent Is Invalid As Indefinite As a threshold matter, Leader contends that Facebook waived its indefmiteness argument by proposing claim constructions for the claim terms that support its argument; specifically, the terms: (1) “wherein the user accesses the data from the second context” (claim 1); (2) “the user employs the application and data from the second user workspace” (claim 21); and (3) “wherein the user accesses the data from the second user workspace” (claim 23). Because Facebook provided proposed claim constructions for these terms, Leader contends that Facebook cannot now argue that the same terms are indefinite. In support of its argument, Leader cites to the Federal Circuit’s decision in Microprocessor Enhancement Corp. v. Texas Instruments, Inc., 520 F.3d 1367 (Fed.Cir.2008). That case, however, did not address the question of waiver. Rather, as Leader recognizes in its parenthetical explanation of the case, Microprocessor Enhancement stands for the well-settled principle that “a claim that is amenable to construction is not invalid on the ground of indefiniteness.” Id. Leader offers no case law supporting its waiver argument, and the Court is aware of none. Indeed, the case law supports Facebook’s position that the submission of a proposed construction for a claim term does not amount to a waiver of a later indefmiteness challenge. See, e.g., Harrah’s Entertainment, Inc. v. Station Casinos, Inc., 321 F.Supp.2d 1173, 1176 (D.Nev.2004). Accordingly, the Court concludes that Facebook did not waive its indefiniteness argument. With respect to the substance of Face-book’s indefmiteness argument, the sole issue for the Court’s determination is whether claims 1, 21, and 23 incorporate a method step directed to using the claimed apparatus or structure. In full, the disputed claims provide: 1. A computer-implemented network-based system that facilitates management of data, comprising: a computer-implemented context component of the network-based system for capturing context information associated with user-defined data created by user interaction of a user in a first context of the network-based system, the context component dynamically storing the context information in metadata associated with the user-defined data, the user-defined data and metadata stored on a storage component of the network-based system; and a computer-implemented tracking component of the network-based system for tracking a change of the user from the first context to a second context of the network-based system and dynamically updating the stored metadata based on the change, wherein the user accesses the data from the second context. 21. A computer-readable medium for storing computer-executable instructions for a method of managing data, the method comprising: creating data related to user interaction of a user within a user workspace of a web-based computing platform using an application; dynamically associating metadata with the data, the data and metadata stored on the web-based computing platform, the metadata includes information related to the user of the user workspace, to the data, to the application and to the user workspace; tracking movement of the user from the user workspace to a second user workspace of the web-based computing platform; dynamically associating the data and the application with the second user workspace in the metadata such that the user employs the application and data from the second user workspace; and indexing the data created in the user workspace such that a plurality of different users can access the data via the metadata from a corresponding plurality of different user workspaces. 23. A computer-implemented system that facilitates management of data, comprising: a computer-implemented context component of a web-based server for defining a first user workspace of the web-based server, assigning one or more applications to the first user workspace, capturing context data associated with user interaction of a user while in the first user workspace, and for dynamically storing the context data as metadata on a storage component of the web-based server, which metadata is dynamically associated with data created in the first user workspace; and a computer-implemented tracking component of the web-based server for tracking change information associated with a change in access of the user from the first user workspace to a second user workspace, and dynamically storing the change information on the storage component as part of the metadata, wherein the user accesses the data from the second user workspace. (emphasis added) Claim 1 recites an apparatus described as a “computer-implemented network-based system,” and claim 23 recites an apparatus described as a “computer-implemented system.” Both the apparatus of claim 1 and the apparatus of claim 23 further comprise two components: a context component and a tracking component. The parties’ dispute centers on the language “wherein the user accesses the data from the second context.” With respect to claim 21, the claim recites an apparatus described as a “computer-readable medium for storing computer-executable instructions.” The disputed language in claim 21 is similar to that contained in claims 1 and claim 23 and provides, “such that the user employs the application and data from the second user workspace.” Facebook contends that the “user accesses the data” step in claims 1 and 23 and the “user employs the application and data” step in claim 21 are steps that must be performed by the user of the earlier claimed apparatuses. Thus, Facebook maintains that the claims commingle an apparatus and a method, rendering the claims invalid. Leader contends that the language referenced by Facebook is not language describing a method. Rather, in Leader’s view, the disputed language is functional language that describes the features of the apparatuses claimed. Reviewing the disputed claim language in the context of the claim, the Court is not persuaded that the claims impermissibly mix an apparatus and a method. A “patent applicant is free to recite features of an apparatus either structurally or functionally.” In re Schreiber, 128 F.3d 1473, 1478 (Fed.Cir. 1997). Functional language describes something by means of what it does, not by means of what it is. See id.; see also Ricoh Co. v. Katun Corp., 486 F.Supp.2d 395, 402 (D.N.J.2007). In the Court’s view, the disputed language is functional in nature, because there is nothing in the claims that requires the user to perform certain steps or take certain actions for the claim elements to be satisfied. Rather, the disputed language only describes the type of tracking components claimed and the type of computer instructions claimed. With respect to claims 1 and 23, both claims are directed toward back-end components of a network-based system and neither claim requires the user to use the system described. For example, Claim 1 of the '761 patent describes a tracking component that “dynamically updat[es] the stored metadata based on .the change, wherein the user accesses the data from the second context.” (Col. 21, 11. 10-12) Similarly, claim 23 describes a tracking component that “dynamically stor[es] the change information on the storage component as part of the metadata, wherein the user accesses the data from the second user workspace.” Thus, the Court understands these claims to provide functional language describing the tracking components without the requirement of any actual user action and, therefore, the Court does not understand the claims to combine a method with the described apparatus. Although claim 21 recites a different apparatus, the same analysis applies. Claim 21 describes computer instruction for a computer program. These instructions include “dynamically associating the data and the application with the second user workspace in the metadata such that the user employs the application and data from the second user workspace.” ('761 patent, col. 22,11. 60-63) Thus, so long as a component in the system contains the functionality described, the component satisfies this claim element. Again, user action is not required to establish infringement of these claims. Accordingly, the Court concludes that claim 21 does not combine a method with the described apparatus. In sum, the Court concludes that claims 1, 21, and 23 are purely functional in nature and do not impermissibly combine an apparatus with a method. Accordingly, the Court concludes that IPXL does not apply to invalidate the claims as indefinite and, therefore, the Court will deny Face-book’s Motion For Summary Judgment. VI. Leader’s Motion For Judgment As A Matter Of Law Or A New Trial (D.I. 626) A. Public Use And On Sale Bars 1. Parties’ Contentions By its Motion, Leader contends that the jury’s verdict that the '761 patent is invalid based on the on sale bar and public use bar is not supported by substantial evidence. As a threshold matter, Leader contends that the jury improperly determined that the critical date for purposes of these bars was December 10, 2002. Instead, Leader maintains that the correct critical date is December 11, 2001, one year prior to the filing of the provisional application, because the provisional application fully supported the claims of the '761 patent. In addition, Leader contends that Facebook failed to establish that the claimed invention was ready for patenting and publicly used or subject to an offer for commercial sale more than one year before the filing of the earliest patent application. To the extent that Facebook demonstrated an offer for sale or public use, Leader contends that any such public use or offer for sale of its Leader2Leader product was for experimental purposes, and all public demonstrations were covered by nondisclosure agreements. In response, Facebook ■ contends that Leader’s Motion is procedurally barred because Leader failed to make an adequate pre-verdict motion to preserve the grounds asserted in its Motion. In addition, Face-book contends that it presented sufficient evidence to establish each of the elements required for both the on sale bar and the public use bar. F