L-3 Communications Corp. v. Jaxon Engineering & Maintenance, Inc. (125 F. Supp. 3d 1155, 2015)

United States District Court for the District of Colorado 2015-09-01

Judiciary and Judicial Procedure Patents Public Contracts

Citations

Full opinion text

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT AND OTHER MOTIONS

Marcia S. Krieger, Chief United States District Judge

THIS MATTER comes before the Court pursuant to the Defendants’ Motion for Summary Judgment (# 1175, 1185), the Plaintiffs’ response .(# 1246, 1265), and the Defendants’ reply (# 1294, 1295, 1298); the Plaintiffs’ Motion for Partial Summary Judgment (# 1176, 1186), the Defendants’ response (# 1252, 1260,1261), and the Plaintiffs’ reply (# 1292) the Plaintiffs’ Motion to Dismiss the Civil Theft Claim (# 1196), the Defendants’, response (# 1199), and the Plaintiffs’ reply (# .1200); the Defendants’ Motion for Summary Judgment (# 1223, 1219), the Plaintiffs’ response (# 1234), and the Defendants’ reply (# 1284, 1296); and the Defendants’ Renewed Motion to Stay (# 1227) consideration of the Plaintiffs’ patent infringement claims, the Plaintiffs’ response (# 1245), and the Defendants’ reply (# 1286, 1297). Also pending are a wealth of motions by both parties seeking to restrict public access to various filings (# 1197, 1201, 1203, 1213, 1218, 1222, 1225, 1226, 1229, 1230, 1231, 1263, 1268, 1269, 1280, 1281, 1282, 1300, 1301, 1302, 1303, 1304, 1305), all of which are unopposed.

FACTS

Given the breadth of motions at issue here, the Court dispenses with a general factual or procedural summary, deferring factual development to the appropriate portion of the analysis. It is sufficient to note here that the Plaintiffs (collectively, “L-3”) are engaged in the business of performing high-altitude electromagnetic pulse (“.HEMP”) testing of electronics, particularly for military applications, along with designing and manufacturing HEMP testing equipment. Most of the individual Defendants were, employees of L-3 until approximately 2008, at which time they left L-3 and formed Defendant Jaxon Engineering and Maintenance, Inc. (“Jaxon”), a company that competes with L-3 in HEMP testing. Among its claims, L-3 alleges that the individual Defendants misappropriated L-3 trade secrets when they left L-3 employment and that Jaxon is infringing upon L-3’s patents. The Defendants have filed counterclaims against L-3, although those counterclaims are not at issue here.

ANALYSIS

A. Standard of review

The substantive motions at issue here are motions for summary judgment. Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir.1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof and identifies the party with the. burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Kaiser-Francis Oil Co. v. Producer’s Gas Co., 870 F.2d 563, 565 (10th Cir.1989). A factual dispute is “genuine” and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party,' thereby favoring the right to a trial. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir.2002).

If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir.1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.

If the moving party does not have the burden of proof at trial, it must point to an absence of sufficient evidence to establish the claim or defense that the nonmovant is obligated to prove. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, a trial is required. If the respondent fails to produce sufficient competent evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Here, both sides have filed motions seeking summary judgment in their favor. Most often such motions must be determined separately because whether there is a genuine dispute as to a material factual issue turns upon who has the burden of proof, the standard of proof and whether adequate evidence has been submitted to support a prima facie case or to establish a genuine dispute as to material fact. In re Ribozyme Pharmaceuticals, Inc., Securities Litig., 209 F.Supp.2d 1106, 1112 (D.Colo.2002); see also Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir.2000); Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir.1979).

The Court pauses at this stage to emphasize that, given the sheer volume of briefing and exhibits submitted with regard to each of the parties’ motions, the Court has scrupulously limited its analysis on a motion-by-motion basis, and within each motion, to the specific arguments and evidence identified by the parties in the pertinent portions of their respective briefs. In other words, when considering the Defendants’ Motion For Summary Judgment, the Court limits its consideration to the evidence and arguments contained within that motion, L-3’s response to it, and the Defendants’ reply; the Court does not consider evidence or arguments contained within L-3’s own summary judgment motion, even though it might be directed at the same claims. In considering the Defendants’ motion directed at, for example, L-3’s false advertising claim, the Court considers only the evidence and arguments specifically discussed by the parties under that heading (and any specific portion elsewhere in the brief incorporated by a precise reference), but will not consider evidence and arguments directed at, for example, the conversion or trade secrets claims.

To the extent that a party has, purposefully or accidentally, omitted a key argument or evidence from its presentation with regard to one set of motions but presented it in another, the Court can offer no solace. The sheer amount of submissions on the parties’ primary motions alone — a combined 439 pages of briefing and at least 2,400 pages of supporting exhibits on the Defendants’ primary summary judgment motion, and • a combined 547 pages of briefing and approximately 10,000 pages of exhibits on L-3’s summary judgment motion — makes it essential that the Court limit its inquiry to a precisely-constrained set of evidence and arguments. The Court lacks the time and resources to attempt to derive a unified, holistic overview of the interactions among the claims or among the parties’ dispositive motions or to “hunt for truffles” that may be buried in documents submitted.

B. Defendants’ Motions

1. Defendants’ motion for summary judgment (# 1185)

In this motion, the Defendants seek summary judgment on: (i) Claim VII in L-3’s Amended Complaint (# 33), which sounds in misappropriation of trade secrets in violation of Colorado’s Uniform Trade Secrets Act (“CUTSA”), C.R.S. § 7-74-101; (ü) Claims VIII through X, which allege that individual former employee Defendants breached various contracts (the “Standard Contract,” the “Confidentiality Contract,” and the “Ethics Contract”) with L-3, and Claim XI which alleges that Defendant Jerry Lubell also breached an Exclusive Services Agreement that he signed with L-3; (iii) Claim XV, which alleges that the former employee Defendants engaged in a breach of fiduciary duty to L-3 by misusing confidential data entrusted to them; (iv) Claims XII and XIX, which allege that the former employee Defendants and Jaxon engaged in common-law conversion and in statutory civil theft; (v) Claim XIII, alleging that Defendants Jaxon, Randall White, Joni White, and Susan Retting violated the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), by falsely advertising the goods or services provided by Jaxon; (vi) Claims XX through XIV, which allege individual claims of common-law fraud against Defendants Randall White, Scott White, Kelly Rice, Susan Rettig, and Jerry Lu-bell, respectively, relating to false statements that each made on their timesheets while employed by L-3; (vii) Claim XIV, which alleges a claim of tortious interference with prospective economic advantage against Jaxon, Randall White, and Susan Rettig, relating to business that Jaxon solicited, from an L-3 customer called Serco; (viii) Claim XVII, sounding in unjust enrichment; and (ix) Claim XVIII, which alleges a common-law conspiracy claim against the Defendants.

(a) Trade secrets claim

The Court does not intend the address the Defendants’ motion on the merits as it relates to the trade secrets claim, as the Defendants have previously filed an unsuccessful summary judgment motion directed at that claim, raising many of the same issues. In December 2012, the Defendants filed a Motion for Partial Summary Judgment on Plaintiffs’ Trade Secret and Breach of Contract Claims (# 463, 468). With regard to the misappropriation of trade secret claim, the Defendants argued, among other things, that L-3 lost any trade secret protection it had in certain technology because it sold HEMP testing equipment to Boeing and the United States Government without constraining those entities’ ability to use and distribute the technology. See Docket # 463 at 8-17. This is precisely the same argument that forms the backbone of the instant motion insofar as it is directed at the trade secrets claim. See Docket # 1175 at 6-18. (This Court denied the earlier motion (# 694), finding, among other things, that the Defendants had relied almost entirely on certain written documents that were not self-explanatory and for which the parties had not offered meaningful interpretations. Nevertheless, the Court also attempted to interpret the documents as best, it could and found some evidence that might suggest that Boeing and the Government implicitly understood the need to maintain L-3’s confidentiality in the technology.)

Included within a court’s inherent discretion to control their own dockets is the discretion to consider (or to refuse to consider) successive motions for summary judgment raising the same arguments or directed at the same claims. See Hoffman v. Tonnemacher, 593 F.3d 908, 910-11 (9th Cir.2010) and cases cited therein; see also Wagner v. American Family Insurance, 968 F.Supp.2d 1100, 1102 n. 3 (D.Colo.2013). Although courts sometimes accept successive motions where the latter motion presents a different factual record than the first motion did (as is the case here), this Court finds that, at least in the circumstances presented here, the presence of a different or broader factual record does not warrant a second round of motion practice. As explained more than 50 years ago in Allstate Finance Corp. v. Zimmerman, 296 F.2d 797, 799 (5th Cir.1961), “we certainly do not approve in general of the piecemeal consideration of successive motions for summary judgment, since defendants might well normally be held to the requirement that the present their strongest case for summary judgment when the matter is first raised.” This observation is consistent with this Court’s belief that judicial resources are scarce and that the effective functioning of the judicial system as a whole is not served when parties present incrementally more comprehensive summary judgment motions in the hopes that one will finally succeed. This Court expects that every time a party presents a motion to the Court for adjudication, that party has completely considered all aspects of the issue being raised, has thoroughly developed the record, and has ensured that the Court is receiving the party’s strongest and most comprehensive argument on that point. A party who presents something less than that, then demands another go-around, squanders the time and resources of their opponent, the Court, and all of the other litigants in the judicial system that await their own turn to have their cases heard. The most appropriate way to prevent such waste is the hold to a rigid rule against hearing successive summary judgment motions directed at the same issues.

This Court might be more willing to entertain a successive summary judgment motion if circumstances beyond the movant’s control compelled the filing of an initial motion that was less-comprehensive than the movant would otherwise have presented. For example, if the pendency of an imminent dispositive motion deadline prompted the filing of the initial motion before the parties had completed their discovery and subsequently-acquired evidence unexpectedly changed the factual picture, the Court might permit a second motion to be filed. Here, however, there was no ungency for the Defendants to file their initial motion when they did so. By May 2012, more than six months before the Defendants filed their initial summary judgment motion in December 2012, the Scheduling Order in this case had extended the dis-positive motions deadline to May 2013 (# 292). The Magistrate Judge .had also extended the discovery deadline to February 2013 (# 256) before the Defendants filed their motion. Thus, there were no external circumstances compelling the Defendants to seek summary judgment when they did, and they did so knowing that there was more factual discovery to be had. The Court can only assúme that the Defendants filed their initial summary judgment motion in December 2012 as a matter of litigation strategy, hoping for a quick knockout in order to avoid spending time and money on continued discovery. The risk of such a strategy is that it presents the Court with a less-than-comprehensive basis for granting relief to the Defendants, increasing the possibility that the motion will be denied, Having gambled and lost on that strategy, this Court sees no reason why the- Defendants should now be relieved, of the consequences of that decision.

Accordingly, the Court declines to entertain a successive summary judgment motion by the Defendants directed at the trade secrets claim.

(b) Contract claims

L-3 asserts a series of breach of contract claims against each of the former employee Defendants. The record reflects that these Defendants each signed three separate contracts with L-3: the “Standard Contract,” the “Confidentiality Contract,” and the “Ethics Contract.” Defendant Jerry Lubell signed a fourth contract with L-3, an “Exclusive Services Agreement.” L-3 alleges that these Defendants breached each of these agreements, and the Defendants seek summary judgment on those claims, arguing that L-3 cannot show that the contracts are enforceable, that the Defendants breached them, or that L-3 suffered any damages resulting from the breaches.

Turning first to the Ethics Contract, the Court agrees with the Defendants that the document in question is merely an aspirational statement, not a formal contractual agreement with sufficiently definite terms. See e.g. Stice v. Peterson, 144 Colo. 219, 355 P.2d 948, 952 (1960) (“An offer must be so definite in its terms ... that the promises and performances to be rendered by each party are reasonably certain”). The Ethics Contract appears to take two different forms. One document (apparently distributed by L-3’s predecessor entity called Titan) is a multipage pamphlet entitled “Code of Ethics and Standards of Conduct” and a single-page document entitled “Statement of Affirmation.” The employees signed the Statement of Affirmation below a paragraph reading “I have received and read the [pamphlet] and understand the requirements and obligations contained therein as it applies to me. I will abide by the Code of Ethics and Standards of Conduct.” (Apparently, these affirmations were signed annually or thereabouts by employees, and the language varies slightly from year to year.) The pamphlet itself is divided into several sections. The pertinent one, entitled “Standards of Conduct,” begins with an introductory paragraph stating “Titan’s Standards of Conduct prescribe specific guidelines that all employees should understand and follow... This Code of Ethics booklet provides general guidance applicable to all Titan employees, managers, and supervisors.” Several pages later is a subsection entitled “Proprietary information, Copyrights, and Inventions,” which states:

All employees are obligated to:

• Not remove from their former employer any information that is or might be considered private or proprietary... ,

• Not disclose or use Titan customer private or proprietary information except as required by the normal business activity of Titan.

• Not take, disclose, or use Titan or customer private or proprietary information upon terminating employment with Titan unless authorized to do so....

A second version of the contract is a lengthy booklet, published by L-3, entitled “Guiding the Way: Code of Ethics and Business Conduct.” (Notably, L-3’s briefing does not direct the Court to any document by which the individual Defendants signed affirmations agreeing to comply with the provisions of this booklet.) The booklet’s section entitled “Purpose” states “In this guide, you will find a summary of some of our most important policies and procedures which govern the day-to-day conduct of our business. More detailed guidance is found in our Corporate Policies.” It further states that “Our Code is designed to serve as a broad outline of our company standards and legal obligations that we are required to abide by.” Many pages later, under the subsection entitled “Safeguarding Confidential Information,” the booklet states:

At L-3, we own, create or have access to a significant amount of ‘sensitive information’ (e.g., confidential or proprietary information) in the course of conducting our business. We must protect the confidentiality of all sensitive information whether obtained from or relating to L-3 and/or suppliers, customers, or other third parties. You should not disclose (even to family) or use any sensitive information for any purpose other than on a ‘need to know’ basis within L-3. This obligation lasts during your entire employment and at all times thereafter.

The Court finds that these documents are not enforceable contracts. Provisions contained in employee handbooks of this type can, in some circumstances, operate as binding contractual agreements, but to do so, it must be clear to both parties that the employer was making an offer to enter into a bargain on the terms contained in the handbook and that, by-accepting or continuing employment, the employee was agreeing to be contractually bound by those terms. Vasey v. Martin Marietta Corp., 29 F.3d 1460, 1464 (10th Cir.1994). Normally, the determination of whether an employee handbook created an implied contract create factual questions for a jury, but if the alleged promises are only “vague assurances,” the Court may determine the issue as a matter of law. Id.

Here, the pamphlet and booklet seem to disclaim any status as formal, binding agreements between the employees and L-3/Titan. They describe themselves as “guidelines” and “general ^guidance” and “summar[ies].” The vast bulk of the documents’ contents are generalized platitudes, statements of aspirational intent, or nonbinding advice as to what employees and others “should” do. The specific provisions that L-3 invokes appear to be express prohibitions, but they are presented in an indirect manner: rather than reflecting the crisp, unambiguous tenor of a formal contract provision, the prohibitions take' on the elliptical form and passive voice of employees being “obligated” (by some unknown force) to “not disclose” confidential information. This is compounded by the fuzzy terms by which the Defendants manifest their assent to the documents as a whole: they state that they agree to “abide by” the documents. It is by no means clear whether this “abid[ing]” is intended to be a promise by the employee to adopt the documents’ platitudes and exhortations, an agreement to use the employee’s best efforts to follow the advice, a promise not to engage in the behaviors that the employee is prohibited from (or, more accurately, “obligated” to “not [do]”), some combination of those, or something else entirely. Taken as a whole, the Court finds that, as a matter of law, the documents are so vague and indirect as to preclude them from having any contractual effect. There is no clear meeting of the minds as to what the employees are obligated to do, and no apparent consideration for their promise to do so. Accordingly, the Defendants are entitled to summary judgment on L-3’s claims of breach of contract relating to the so-called Ethics Contract. . •

The Court then turns to the claims invoking the “Standard Contract” and the “Confidentiality Contract.” The “Standard Contract” is a document entitled “Standard Confidentiality Agreement and Assignment of Inventions.” The Defendants signed these contracts at various dates between 1984 and June 2005, a time period in which L-3 was known as either Titan or Jaycor. Taking the form of a typical contract, it recites that it is an agreement between- each named employee and the company, recites definitions for certain key terms, recites the consideration given for the agreement (“hiring or continued employment of the employee”), and states its purpose: “to protect the trade secrets and other proprietary ad confidential information of the company.” It provides, in pertinent part, that “[t]he employee agrees to maintain the confidentiality of all Confidential Information,” that’ “the employee will not..; directly or indirectly reveal or cause to be revealed any such Confidential Information to any person other than to [Jaycor] employees,” that the employee “will [not] use any such Confidential Information to the detriment of the Company,” and that the employee “will not take or keep any Confidential Information” upon the termination of the employee’s employment with Jaycor. By its terms, the Standard Contract, is governed by California law.

At some point after June 2005, Titan/Jaycor became Lr3, and the employees were apparently asked to sign a new contract addressing confidentiality. These new contracts, described in the Amended Complaint as the- “Confidentiality Contract,” were signed by the. Defendants between August and October 2005. The formal title of this contract is “Employee Confidentialr ity and Innovation Agreement,” and it provides, in pertinent part, that “I [the employee] ... agree to hold all Proprietary Information and L-3 Materials in strict confidence,” that “I will not take,1 use, copy, disclose, publish, or summarize any Proprietary Information or L-3 materials except to the extent necessary to carry out my duties and responsibilities as an employee of L-3,” and that “upon termination of my • employment for any .reasons, or upon:the request of L-3 if sooner, I will promptly deliver to L-3 all L-3 Materials in my possession, custody, or control and shall not retain any copies of the L-3 Materials in any form or medium whatsoever.” This agreement, by its terms, is governed by New York law.

The Defendants argue that, under either California or New York law, the terms of the Confidentiality Contracts supersede the terms of the Standard Contracts, because they address the same subject matter. Thus, the Defendants argue, the Court should dismiss L-3’s claims premised on the Standard Contract. The Court declines to address this issue, as the outcome would not materially affect the nature of the evidence to be produced at trial. Whether the jury is instructed on separate breach of contract claims addressing both the ■Standard and Confidentiality Contracts, or on a single claim involving only the Confidentiality Contract (arguably encompassing any breaches allegedly committed by the Defendants during the time frame of the Standard Contract as well) is largely an administrative, not substantive, issue.

The Defendants also make an abbreviated argument that L-3 cannot show that they breached the Standard Contract (or the Confidentiality Contract) because the HEMP testing equipment and methods allegedly misappropriated by the Defendants are not confidential information or trade secrets in light of L-3’s unrestricted dissemination of the HEMP testing equipment to Boeing and the Government. As previously noted, there is evidence suggesting that there is a genuine dispute of fact as to whether some of the material allegedly taken by the Defendants enjoys trade secret protection despite the production to Boeing and the Government. Accordingly, this argument is without merit'

That leaves the Exclusive Services Agreement, which L-3 entered into only with Mr. Lubell. That agreement, reached between the parties in November 2009, provides for L-3 to retain Mr. Lubell’s services as a consultant to “perform work and services for, supply reports to, and act as a consultant to L-3” in exchange for stated compensation. Among other provisions, the Exclusive Services Agreement: (i) provided that L-3 was retaining Mr. Lubell “on an exclusive basis with respect to” a defined scope of work, which an attachment defined as “all activity with the Defense Threat Reduction Agency (DTRA)”; and (ii) included an addendum, entitled “Mutual Non-Disclosure Agreement,” that required that, upon termination of the Agreement, Mr. Lubell “return to [L-3] any proprietary information” that L-3 had expressly marked as “proprietary” or “confidential” before delivering it to Mr. Lubell. L-3 alleges that Mr. Lubell breached both provisions, the latter by improperly retaining, at least, a “proprietary”-marked L-3/Jaycor document entitled “Some Specifics (con’t),” and the former by performing DTRA-related consulting work for Jaxon in January 2010, before the Exclusive Services Agreement with L-3 expired. In reply, Mr. Lubell submits his own affidavit denying that these acts constitute a breach of the- Exclusive Services Agreement, but the Court finds that, this affidavit merely creates a genuine dispute of fact when juxtaposed with L-3’s evidence, such that a trial is required on L-3’s claim against Mr. Lubell for breach of the Exclusive Services Agreement.

Accordingly, the Court grants summary judgment to the Defendants on Claim X, alleging breach of the Ethics Contract, but denies summary judgment on the remaining contract claims.

(c) Breach of fiduciary duty

In Claim XV, L-3 alleges that each of the former employee Defendants breached a fiduciary duty they owed to L-3 by appropriating L-3’s confidential data and other materials and using it to benefit Jaxon, L-3’s competitor. The Defendants’ argument on this claim is exceedingly brief. They contend merely that “with respect to L3’s claim that the Former L3 Defendants misused L3 confidential data, L3 cannot show that a given Defendant misused any L3 data that was confidential” and refers the reader back to “Sections I and II above,” a 40-page portion of the Defendants’ motion. It makes a similarly-abbreviated argument that L-3 cannot show damages flowing from the Defendants’ alleged breach of their fiduciary duties, again referring back to arguments raised with regard to other claims.

The Court- declines to entertain such a generalized and unspecific argument on these terms. It is not clear whether the thrust of the Defendants’ one-sentence argument that- “no Defendant misused any L-3 data” or whether it is that “any data allegedly misused by a Defendant was not actually confidential” (or - possibly some other permutation of the words in the sentence). The generalized reference to 40 pages of prior argument, much of which does not relate to any potential interpretation of the Defendants’ single-sentence argument, offers no assistance.

The Court also declines to grant summary judgment to the Defendants on their argument that L-3 cannot adequately demonstrate an appropriate apportionment of damages among the Defendants and their alleged wrongs. The Defendants’ brief appears to concede that, even if L-3 cannot demonstrate actual damages, it would still be entitled to an award of nominal damages in its favor, making the issue of damages one of proof at trial and instruction to the jury, not one that can be resolved on summary judgment.

(d) Civil theft and conversion

Claims XII and XIX alleged that the Defendants engaged in civil theft and conversion by taking physical property belonging to L-3. The Defendants’ summary judgment motion recites that by October 6, 2014 (the same date that the Defendants filed their summary judgment motion), L-3 had conceded in an e-mail that it no longer intended to pursue the civil theft claims in its entirety and that it would not be pursuing the conversion claim against the individual Defendants, but that it would apparently continue to press that claim as against Jaxon in some respect. With regard to the conversion claim against Jaxon, the Defendants again offered a highly-abbreviated argument to the effect that the October 6, 2014 e-mail conceded the conversion claim against Jaxon as to every item of property that L-3 had identified in its interrogatory responses as having been converted, and thus, L-3 could not base any remaining conversion claim against Jaxon on allegedly-converted items of property that L-3 had not disclosed during discovery. Shortly thereafter, L-3 filed a Motion to Dismiss the Civil Theft claim (# 1196). The motion made no reference to the conversion claim.

Later, L-3 filed its response to the Defendants’ summary judgment motion, arguing that the Defendants had failed to put forward a meaningful argument as to any deficiencies in L-3’s conversion claim against Jaxon. It further argued that the conversion claim against Jaxon was based on Jaxon “convert[ing] a number of CSI capacitors for use in Jaxon’s lk and 5k pulsers.” The response acknowledged that L-3 had not disclosed these capacitors when itemizing the alleged converted property in response to the Defendants’ interrogatories, but L-3 argued that it did not discover the existence of the allegedly-converted capacitors until some time after it had answered the interrogatories and that it was under no obligation to supplement its interrogatory responses to include the capacitors because it subsequently “made clear to Defendants both during the discovery process and in writing that it had discovered evidence that Defendants had stolen CSI capacitors from L-3.”

Fed. R. Civ. P. 26(e)(1)(A) provides that, once a party responds to discovery requests, the party is under a continuing obligation to “supplement or correct its disclosure or response in a timely manner if the party learns that in some material respect the [initial] disclosure is incomplete or incorrect.” However, that rule contains an exception: no supplementation is required “if the additional or corrective information has [] otherwise been made known to the other parties during the discovery process or in writing.” Id. To satisfy the “made known” requirement, a party’s -collateral disclosure of the information that would normally be contained in a supplemental discovery response must in such a form and of such specificity as to be the functional equivalent of a supplemental discovery response; merely pointing to places in the discovery where the information was mentioned in passing is not sufficient. Jama v. City and County of Denver, 304 F.R.D. 289, 298-99 (D.Colo.2014).

The Court finds that although L-3 did not formally supplement its interrogatory responses to identify the capacitors as allegedly converted property, other information produced during the discovery process was sufficient to put the Defendants on notice of that fact. Specifically, L-3 produced the report of Charles Crain, who discussed the' capacitors at issue, posed the question “where did the [capacitors] come from?,” and concluded that “the JAXON lk pulser capacitor actually appears to belong to L-3.” L-3 further points out that, when deposing Mr. Crain, the Defendants clearly understood that L-3 was asserting that Jaxon had obtained the capacitor in question from L-3, as counsel repeatedly inquired of Mr. Crain as to the possibility that Jaxon could have acquired the capacitor from some other source. Although the Defendants contend that Mr. Crain was identified only as a rebuttal expert, and thus, disclosure therein prevented the Defendants from obtaining a response from their own expert, that- fact is irrelevant: the sole question being considered is whether L-3 somehow made clear to the Defendants that it was claiming the capacitor as converted property, and’ there can be little dispute that Mr. Crain’s report did so. The Defendants were free to seek to reopen discovery or otherwise attempt to explore L-3’s new conversion facts in more detail, but it cannot be said that they were uninformed of L-3’s position on the matter.

However, the Court also notes that, although Mr. Crain expressed relative certainty that the capacitor in Jaxon’s lk'pulser was taken from L-3, he acknowledged that “the same cannot be said conclusively about [other capacitors].” Thus, because L-3 did not unambiguously assert to the Defendants' that it believed other capacitors were also converted, L-3’s conversion claim against Jaxon is limited to a single instance of converting a single capacitor.

The Court finds that there is a genuine dispute of fact between the parties as to whether Jaxon converted the capacitor. L-3 has produced evidence, through Mr. Crain and otherwise, that the. particular capacitor in question is one that was custom-manufactured for it in 2002 and that it never gave that capacitor to Jaxon. The Defendants have submitted evidence that the capacitor in question was obtained by Jaxon as part of a box of spare parts given to it by representatives of the Air Force. Although each side contends that the other side’s explanation is unpersuasive in various respects, it is clear that there is a genuine dispute of fact as to the means by which Jaxon came into possession of the capacitor. Resolution of this dispute can only be had by trial.

Accordingly, the . Court dismisses the civil theft claim in its entirety and the conversion claim against all individual Defendants, but the Court denies the Defendants’ request for summary judgment on the conversion claim againsf Jaxon as it relates to the single capacitor used in Jaxon’s lk “prototype” pulser. .

(e) Lanham Act

L-3 asserts a claim under the Lanham Act, sounding in false advertising, against Jaxon, Randall White, Joni White, and Susan Rettig. The crux of the claim is that Jaxon falsely advertised its ability to perform HEMP testing to potential customers in various ways. To establish a false advertising claim under the Lanham Act, L-3 must show: •(!),- that the Defendants made a material false or misleading representation in connection with the promotion of their products or services; (ii) that the statement was made in interstate commerce; (iii) that the statement was likely to cause confusion or mistaken by customers as to the characteristics of the goods or services of the Defendants or others; and (iv) that L-3 suffered an injury as a result of those false representations. L-3 Communications Corp. v. Jaxon Engineering & Maint., Inc., 863 F.Supp.2d 1066, 1082 (D.Colo.2012).

The Defendants first challenge this claim' on the grounds that L-3 never identified any of the alleged false representations during discovery. The Defendants point to an interrogatory they served on L-3, requesting that it “identify each communication by a Defendant that.. was a false representation” for purposes of the Lanham Act claim (among others). It is undisputed' that L-3’s responses never identified any advertising-based communications. In response to the Defendants’ instant motion, L-3 again argues that it was not required to identify the advertising misrepresentations' via interrogatories because it identified those matters through the alternate “made known” provision of Rule 26(e)(1)(A). Careful parsing of L-3’s summary judgment response is necessary; as that Response makes many assertions regarding how it disclosed the allegedly misleading statements io the Defendants during discovery, but supports those assertions with only two actual citations to the record; (i) a reference to L-31 taking the deposition of Defendant Randall White, asking him ■ “about various statements made in Jaxon’s Initial Talking Papers dated January 2009 and: whether those statements were false,” and citing to a 15-page excerpt of Mr. White’s deposition; and (ii) a reference to allegedly misleading statements in a March 2009 version of the Talking Papers, citing to a three-page excerpt from Mr. White’s deposition.

Turning first to the 15-page excerpt, the Court finds that it does not suffice to discharge L-3’s obligations under Rule 26(e)(1)(A) for numerous reasons.' First, the Court notes that nowhere in the excerpt does L-3’s counsel ever explicitly state to Mr, White or the Defendants’ counsel that L-3 is purporting to identify the particular misrepresentations that underlie L-3’s Lanham Act claim. It is only logical to require that a constructive disclosure of information under the “made known” provisions of Rule 26(e)(1)(A) be at least as specific and comprehensible as the express disclosure normally required by the rule would have been. Jama, 304 F.R.D. at 299. Thus, to the extent that L-3 relies upon questions posited to Mr. White at his deposition to put the Defendants on notice of the particular alleged misrepresentations that underlie the Lanham Act claim, this Court would expect that such questioning would either be expressly identified as such (e.g. preceded by “I’d like to turn to- the Lanham Act claim now;..”) or, at the very least, would be questions that unambiguously relate solely to that claim. Nothing in the 15-page excerpt suggests to Mr. White or the Defendants that the. questions being presented relate to the Lanham Act claim, as opposed to a different claim by L-3; indeed, certain lines of questioning in that excerpt appear to be more germane to the trade secrets-based claims instead. For example, the lengthiest portion of the excerpt concerns a, portion of the document that appears to be a cost proposal by Jaxon for a job labeled “Fix Local Sites — Proposal 1.” L-3’s counsel was particularly interested in how Mr. White derived the figures contained in that proposal, at one point suggesting that “this document was prepared based on information you had gotten from... L-3, correct?” (On another occasion in the excerpt, L-3’s counsel again asked “So isn’t it true you got that information from documents that you got while you were at L-3?”) This line of questioning would seem to be directed at a contention that the figures themselves reflected L-3’s trade secrets and that Mr. White misappropriated them, not a contention that Mr. White was using the figures to falsely advertise Jaxon’s services to L-3’s customers. Because the questions by L-3’s counsel do not tie the inquiry to the Lanham Act claim, expressly or by unambiguous implication, the Court cannot say that those questions operated' as substitute disclosures of alleged Lanham Act misrepresentations under Rule 26(e)(1)(A).

Second, Mr. Whitess deposition explains that the document in question was being submitted to “a bank.” The excerpt does not reveal the purpose for which Jaxon was communicating with the bank, but it is implausible that Jaxon was addressing the bank as a potential customer of Jaxon’s HEMP testing services; more likely, Jaxon was presenting the documents in the course of seeking a loan or financing from the bank. Because the cited examination of Mr. White did not involve misrepresentations allegedly made by Jaxon to potential customers of the services that it and L-3 compete to provide, nothing in the deposition excerpt would suggest to the Defendants that L-3’s questioning was directed at the Lanham Act claim.

The 3-page excerpt of Mr. White’s deposition cited by L-3 comes somewhat closer to supporting the contention that L-3 orally disclosed the factual basis of the Lanham Act claim to the Defendants. In that excerpt, Mr. White is being asked about a March 2009 version of the Talking Papers document. In a section entitled “Recent EHFASS HM/HS Work,” the document states “In 2008-09, for MCSW/OSL, HM/HS test prep and HEMP testing has been accomplished on the following sites,” and four sites are listed. In Mr. White’s deposition, he acknowledged that Jaxon did not perform two of those tests and that L-3 did. (Mr. White stated “This is. the contract L set up [at L-3] before I left,” thus apparently taking personal credit for securing the HEMP testing contract, rather than performing the testing itself.) Asked whether he believed that representation was misleading, Mr. White respondéd that it was not because the people to whom the document was directed knew who had performed the testing.!

Arguably, this line of questioning could be sufficient to put the Defendants on notice that L-3 was asserting that this particular portion of the March 2009 Talking Papers contained a misrepresentation that Supported the Lanham Act claim. The questions posed to Mr. White at the deposition identified the particular text in question, established that the text'was directed by Jaxon to what appears to be a potential purchaser of HEMP testing services (“the OSL office over at” a particular Air Force base), and inquired of Mr. White whether the text was “misleading.” An argument could be made that this group of questions would only be germane to the Lanham Act claim, not to the trade'secret-based claims or any other claims asserted by L-3. Thus, the Court could deem L-3 to have disclosed, via Rule 26(e)(1)(A), exactly one alleged misrepresentation by the Defendants in support of L-3’s Lanham Act claim — the representation in the March 2009 Talking Papers that implied that Jaxon, not L-3, had performed the HEMP testing at the two locations.

Even so, the Court finds that L-3 has failed to come forward with evidence that such a misrepresentation was likely to cause confusion to the putative purchaser of the services. Mr. White’s deposition makes clear that Mr. White believed that the putative customer, the OSL Office at the Aii' Force Base, would not have been confused by the apparent false implication in the document — that Jaxon had performed the prior testing — because the staff at that office “knew” that L-3 had done so. In its response to the Defendants’ summary judgment motion, L-3 does not acknowledge Mr. White’s testimony or attempt to refute it. Indeed, L-3’s response discusses the potential for customer confusion of other alleged misrepresentations by Jaxon, none of which L-3 has shown it identified in discovery. L-3 also makes an abbreviated argument that this Court should simply presume customer confusion on the grounds that Jaxon’s misrepresentations were “literally false” or done “with the intent to deceive,” citing NetQuote, Inc. v. Byrd, 2008 WL 5225880 (D.Colo. Dec. 15, 2008), but L-3 has not demonstrated either of those factual predicates. It has not offered any testimony that even addresses, much less refutes, Mr. White’s own testimony that the recipients of the March 2009 Talking Papers documents understood that L-3, not Jaxon, had performed the prior HEMP testing, and thus, the Court will not presume confusion.

Because L-3 has not come forward with sufficient evidence to show a genuine issue of material fact with regard to the single alleged misrepresentation that it disclosed as supporting the Lanham Act claim, the Defendants are entitled to summary judgment on that claim.

(f) Fraud

L-3 asserts that the former employee Defendants engaged in fraud when they completed time sheets at L-3, reporting to L-3 that they had worked on L-3 business during those hours when, in fact, the Defendants had been working on business to benefit Jaxon during those hours. The Defendants contend that L-3 cannot show that any particular time sheet entry is false.

L-3’s response is curious. It does not addi’ess any alleged fraud contained on the time sheets. Instead, it attempts to shift the focus of its fraud claim from the time sheet theory (as set forth in the Amended Complaint) to a new theory of fraud it developed during discovery — that the fraudulent statements by the Defendants were those made on documents called Termination Certifications, in which the Defendants (allegedly falsely) stated that they had returned all L-3 property and would abide by the Confidentiality Agreements they had signed. L-3‘ acknowledges that this theory of fraud is not the one pled in the Amended Complaint, but argues that the Defendants cannot be surprised by this new theory, as it “was fully explored during discovery and was identified in the beginning of the case,” insofar as the Amended Complaint makes mention of the Termination Certifications (albeit not in the fraud context).

Treating L-3’s response as a motion for leave to amend its complaint under Rule 15(a), the Court denies it. Although leave to amend a pleading is to be “freely granted,” the Court may deny such leave when it is the result of undue delay by the movant. Cohen v. Longshore, 621 F.3d 1311, 1313 (10th Cir.2010). Here, L-3 has offered no adequate explanation for its delay in seeking to amend the pleading of its fraud claim in the Amended Complaint to focus on the Defendants’ retention of L-3 property in violation of the Termination Certification, rather than on their submission of fraudulent time sheets. Indeed, by L-3’s own acknowledgement, it was aware of all of the predicate facts of this new fraud theory at the time it filed its Amended Complaint:, it knew that the various employee Defendants had signed Termination Certifications promising to return L-3 property, because it expressly referenced those Certifications; and it believed that the Defendants had improperly retained L-3 property, because it alleged as much in the conversion, civil theft claims, and trade secret misappropriation claims. Given the length of time that this case has been pending and the vigor with which L-3 has litigated it, no reasonable explanation can be proffered to explain why L-3’s current fraud theory could not have been formally pled years ago.

Accordingly, because L-3 has not come forward with evidence to support the fraud claim as it is alleged in the Amended Complaint — that is, as it relates to allegedly fraudulent timesheets — all Defendants are entitled to summary judgment on L-3’s common-law fraud claim.

(g) Tortious interference with prospective advantage

L-3’s tortious interference claim is asserted against Jaxon, Randall White, and Susan Rettig, and alleges that these Defendants secured 13 “Task Orders”— that is, contracts — for certain work from Serco, a company that had,previously done business with L-3.

The parties disagree slightly on the precise elements that comprise this cause of action, but they generally agree that the pertinent elements require L-3 to show: (i) that it had a reasonable probability of entering into a future economic relation with Serco; (ii) that the Defendants against whom the claim is asserted resorted to improper means to prevent L-3 from securing that relation; and (iii) that L-3 suffered damages as a result. In their motion, the Defendants argue that L-3 cannot show that it had a reasonable probability of obtaining the Serco Task Orders that are the subject of the claim — either because Serco had designated them as available only to small businesses (which L-3 is not) or because bids that L-3 actually submitted were rejected as insufficient or non-compliant — and cannot quantify the damages that it would show arising from this claim.

The first seven Task Orders at issue were offered by Serco for bidding in or about April, 2009. It is undisputed that Serco did not inform L-3 of these Task Orders, even though L-3 and its predecessor entities had previously performed .the same type of HEMP testing services for Serco in the past. The Defendants contend that Serco did not open the bidding to L-3 because it had designated the Task Orders at issue as being subject to an internally-imposed small business set-aside program for which L-3 would not have been eligible. L-3 responds that no such set-aside program actually existed at the time', and that the set-aside program is a post hoc justification fabricated by Jaxon and Serco (or more specifically, by Don Eich, the Serco official in charge of awarding contracts)’to obscure the fact that the two entities had conspired amongst themselves to steer work away from L-3 and towards the newly-formed Jaxon. , =

It is not necessary to recite, in detail, the complex factual theory that supports L-3’s contention; it is sufficient to observe that, taking all of the evidence in the light most favorable to L-3 and drawing reasonable inferences in its favor, L-3 has raised a genuine dispute as to the existence and applicability of the set-aside program to the key Task Order (number 9070) at issue here. Notably, L-3 points out that the bidding documents and information made no mention of any small business-related restrictions, that the internal Serco plan for directing contracts'to small businesses was not put in place until several months after the key Task Order was granted to Jaxon, that Mr. Eich had given a different explanation to a subordinate for excluding L-3 from bidding (offering the patently false assertion that .L-3 “didn’t have the test capability” rather than because they were not a small business), and that Serco acted surprisingly hastily in awarding the key Task Order to Jaxon. Taken in. the light most favorable to L-3, these facts could support the conclusion that Serco’s “small business set-aside” explanation for why L-3 was excluded from bidding on these Task Orders is a pretext.

However, L-3 fails to supply additional evidence that would allow the factfinder to make the next necessary logical leap: that Serco either favored Jaxon or shunned L-3 because of some improper conduct by the Defendants. The entirety of L-3’s discussion of its factual theory focuses on actions taken by Serco. At no point in L-3’s. discussion of this claim does it identify a single communication by any of the Defendants with Serco or Mr. Eich prior to or during the bidding on the Task Orders.

This is significant. L-3’s apparent theory is that Jaxon, Mr. White, and/or Ms. Rettig (or their agents) 'conspiréd with Mr. Eich to ensure that Serco’s business was steered to Jaxon and away from L-3. To prove this theory, L-3 must come forward With some evidence that the Defendants actually induced Mr. Eich to steer the Task Orders to Jaxon instead of L-3. Put differently, if Mr. Eich elected to favor Jaxon over L-3 for reasons entirely of his own accord — say, because of a (hypothetical) personal dislike of an L-3 principal, because of a close friendship with a Jaxon principal, or even because of a general favoritism for new startup business — his decision to do so would not suffice to render the Defendants liable in tort for a decision they did nothing to influence. And, of course, a unilateral decision by Mr. Eich to freeze L-3 out of bidding on Task Orders prevents L-3 from showing that it had a reasonable probability of obtaining contracts that Mr. Eich was determined not to award to it in the first place. The absence of any evidence of involvement by the Defendant in Serco/Mr. Eich’s decisions is fatal to the tortious interference claim premised on these Task Orders.

As to the remaining Task Orders, Serco received bids from L-3 but rejected them for various reasons, again awarding the contracts to Jaxon instead. L-3 points to the opinions of its expert, Dr. Nye, for the proposition that, in a fair bidding environment, L-3 would have been awarded the contracts. However, the question is not whether L-3 would have prevailed in fair bidding, the question is whether L-3 can show that some act by the Defendants influenced Serco’s decision to award the Task Orders to Jaxon instead of L-3. Once again, L-3 fails to come forward with evidence suggesting that the Defendants did anything more than submit a bid to Serco. Without evidence that would establish some complicity by the Defendants in Serco/Mr. Eich’s decision to award the Task Orders to Jaxon instead of L-3, L-3 has failed to show a reasonable probability that Serco would have awarded the Task Orders to L-3 but for the Defendants’ involvement, Accordingly, the Defendants are entitled to summary judgment on the tortious interference claim in its entirety,

(h) Unjust enrichment

The Defendants seek summary judgment on L-3’s unjust enrichment claim, but only to “to the extent that [it is] based on” the various other claims L-3 has asserted (which, the Defendants contend, each lack merit on their own). This is not so much an argument as a truism: unjust enrichment is an equitable remedy that is not available when a remedy at law lies to address the same conduct. Greenway Nutrients, Inc. v. Blackburn, 33 F.Supp.3d 1224, 1260-61 (D.Colo.2014). By definition, then, L-3’s unjust enrichment claim cannot overlap any of its existing claims for relief.

However, Colorado law does recognize a limited situation in which a claim for unjust enrichment may piggyback on certain tort claims. As the court in Harris Group, Inc. v. Robinson, 209 P.3d 1188, 1205 (Colo.App.2009), explained, tort claims generally offer compensatory relief, entitling the plaintiff to damages that offset “the harm, done to him”.- Unjust enrichment, by contrast,., provides an equitable, restitution-based remedy that allows the plaintiff “to recover the gain acquired by the defendant through the wrongful act.” Thus, unjust enrichment entitles the wronged plaintiff to recover not only compensation for his own injuries, but to also strip the tortfeasor defendant of the benefits of having perpetrated the wrongful act. Id. Harris is factually-identical to,the instant case. In Harris, employees of an engineering firm defected to form their own competing business. The plaintiff firm brought suit against them, alleging the same types of claims asserted by L-3 here: misappropriation of trade secrets, breach of fiduciary duty, conversion; etc., along with a claim for unjust enrichment. A jury ultimately returned a verdict in favor of the plaintiff firm and against the employees, awarding nearly $ 2 million in actual damages and an additional $ 200,000 as an advisory verdict bn the unjust enrichment claim. On appeal, the Court of Appeals vacated the unjust enrichment award, finding that “the company had an adequate remedy at law.” Id. at 1207. But review of the court’s reasoning indicates that it reached that conclusion only because the trial court’s jury instructions on damages on the substantive tort claims allowed the jury to award “anything of value or profit the former employees and the new business received as a result of the breach” in addition' to damages for other injuries. Id. Thus, the trial court had already allowed the jury- to award the restitution-based damages normally available under an unjust enrichment theory as part of its award on the substantive tort claims. This made a separate unjust enrichment award unnecessary.

Thus, L-3’s unjust enrichment claim is cognizable to the extent that it seeks a restitution — based remedy on its tort claims against the Defendants. Accordingly, the Defendants’ motion for summary judgment on that elaim is denied.

(i) Civil conspiracy

Finally, the Defendants seek summary judgment on L-3’s claim of civil conspiracy. The Defendants’ offer two primary arguments: (i) that the intra-corporate conspiracy doctrine precludes L-3 from basing a conspiracy claim against Jaxon on alleged agreements that it made with’ its own agents or employees, and vice versa — that the individual Defendants cannot be liable for conspiring with Jaxon itself, citing Vinton v. Adam Aircraft Indus., Inc., 232 F.R.D. 650, 655 (D.Colo.2005) and Pittman v. Larson Distrib. Co., 724 P.2d 1379, 1390 (Colo.App.1986); and (ii) that L-3 cannot show sufficient evidence of conspiratorial agreements among the Defendants. L-3 responds with a lengthy factual recitation.

The Court will not engage in a lengthy recapitulation of L-3’s evidence, for it is sufficient to observe that L-3 has come forward with sufficient evidence to create a genuine issue of fact as to whether individual Defendants, while employed by L-3, conveyed L-3’s physical and intellectual property to each other with the intention of aiding Jaxon, and that each individual Defendant either participated in those acts or knew of and acquiesced in the others’ performance of them to the point where one could reasonably infer their tacit agreement to participate in the common plan. See generally Resolution Trust Corp. v. Heiserman, 898 P.2d 1049, 1056-57 (Colo.1995). Accordingly, the Court denies the Defendants’ request for summary judgment on L-3’s civil conspiracy claim.

Thus, the Defendants’ Motion for Summary Judgment (# 1175, 1185) is granted in part, insofar as the Court grants summary judgment to the Defendants on L-3’s claims for breach of the Ethics Contract (Claim X), on the civil theft (Claim XIX), on the conversion claim (Claim XII) as against the individual Defendants; on the Lanham Act claim (Claim XIII), on the fraud claims (Claims XX through XXIV), and on the tortious interference claim (Claim XIV). Summary judgment is denied as to the remaining claims.

2. Defendants’ Motion for Summary Judgment (# 1223)

Separately, the Defendants move for summary judgment on L-3’s sole remaining patent infringement claim (Claim VI), which involves U.S. Patent No. 7,485,989 (“the Patent”).' The Defendants seek summary judgment on that claim on the grounds that: (i) L-3 lost its exclusive right to practice the Patent when the Government exercised its right to appropriate title the Patent; and (ii) that pursuant to 28 U.S.C. § 1498(a), L-3 must bring suit against the U.S. Government, not the Defendants, for infringement of the Patent.

The Defendants first contend that L-3 lacks any ownership interest in the Patent because the Government acquired it in August 2011. Generally, a government contractor who invents a product as part of a federally-funded project retains the right to that invention. 35 U.S.C. § 201(a). However, the right to retain is conditioned upon the contractor promptly disclosing the invention to the contracting agency. See 35 U.S.C. § 201(c)(1). If the contractor fails to promptly disclose the invention, the Government obtains the right to appropriate all rights to the invention, including patent rights. 48 C.F.R. § 252.227-7038(d)(l)(ii) (“The Contractor shall assign to the agency, upon written request, title to any subject invention [i]f the Contractor fails to disclose or elect the subject invention within the time specified”); see generally Campbell Plastics Eng. & Mfg., Inc. v. Brownlee, 389 F.3d 1243, 1247-48 (Fed.Cir.2004).

On August 19, 2