Full opinion text
MEMORANDUM OPINION SUE L. ROBINSON, District Judge I. INTRODUCTION On July 19, 2012, plaintiff Carrier Corporation (“Carrier”) commenced this litigation against defendants Goodman Global, Inc., Goodman Manufacturing Company, L.P., Goodman Global Holdings, Inc., Goodman Distribution, Inc., and Goodman Sales Company (collectively, “Goodman”) alleging infringement of U.S. Patent No. 7,243,004 (“the ’004 patent”). (D.I.l) Carrier filed an unopposed motion for leave to file a first amended complaint on January 31, 2013, which amended complaint was filed on February 5, 2013. (D.I. 50; D.I. 51) On November 22, 2013, the court granted Goodman’s unopposed motion to file first amended answers, which amended answers were filed the same day. (D.I. 173; D.I. 174; D.I. 175) On December 9, 2013, Carrier answered the counterclaims in the amended answers. (D.I. 185) On June 19, 2014, the court denied Goodman’s motion for leave to file second amended answers. (D.I. 304) In opinions issued August 14, 2014, the court resolved the parties’ claim construction disputes and several summary judgment motions. (D.I. 315; D.I. 316; D.I. 317) The parties proceeded to trial on September 8, 2014, arguing infringement and invalidity of certain claims of the ’004 patent. On September 15, 2014, the jury returned a verdict for Carrier, finding the ’004 patent valid and infringed. (D.I. 383) Presently before the court are Carrier’s motion for permanent injunction (D.I. 393) and Goodman’s motion for judgment as a matter of law (“JMOL”) and, in the alternative, for a new trial (D.I. 394). The court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a). II. BACKGROUND A. Parties Carrier is a corporation organized under the laws of the State of Delaware with a principal place of business in Farmington, Connecticut. Goodman Global, Inc. is a corporation organized under the laws of the State of Delaware. Goodman Manufacturing Company, L.P. is a partnership organized under the laws of the State of Texas. Goodman Global Holdings, Inc. is a corporation organized under the laws of the State of Delaware. Goodman Distribution, Inc. is a corporation organized under the laws of the State of Texas and qualified with the Delaware Secretary of State to do business in Delaware. Goodman Distribution, Inc. has a registered agent in Delaware, The Corporation Trust Company, located in Wilmington, Delaware. Goodman Sales Company is a corporation organized under the laws of the State of Texas. Each of the Goodman defendants has a principal place of business in Houston, Texas. (D.I. 51 at ¶¶ 1-6; D.I. 174 at ¶¶ 2-6) B. The ’004 Patent The ’004 patent, titled “Self-Configuring Controls for Heating, Ventilating and Air Conditioning Systems,” was filed January 7, 2004 and issued July 10, 2007. The ’004 patent is directed to a self-configuring heating, ventilation and air conditioning (“HVAC”) system, wherein HVAC “units are provided with an electronic control that reports the unit’s particular characteristics to a central control. The central control takes in the characteristics of each of the several units, and has available to it optimum operational strategies based upon the combination of several units that have reported.” (1:51-58) At trial, Carrier asserted that certain of Goodman’s products' — -the ComfortNet indoor and outdoor units with one of a CTK01 thermostat, CTK02 thermostat, or CTK03 thermostat (collectively, “the ComfortNet system”)— infringe claims 6, 8, and 13 of the ’004 patent. III. STANDARDS OF REVIEW A. Renewed Motion for JMOL 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 Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 893 (Fed.Cir.1984)). “ ‘Substantial’ evidence is such relevant evidence from the record taken as a whole as might be acceptable by a reasonable mind as adequate to support the finding under review.” Perkin-Elmer Corp., 732 F.2d at 893. 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. Consol. Rail Corp., 926 F.2d 1344, 1348 (3d Cir.1991); Perkin-Elmer Corp., 732 F.2d at 893. The court may not determine the credibility of the witnesses nor “substitute its choice for that of the jury between conflicting elements of the evidence.” Perkin-Elmer Corp., 732 F.2d at 893. In sum, 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). B. Motion for a New Trial Federal Rule of Civil Procedure 59(a) provides, in pertinent part: 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. Fed. R. Civ. P. 59(a). The decision to grant or deny a new trial is within the sound discretion of the trial court and, unlike the standard for determining judgment as a matter of law, the court need not view the evidence in the light most favorable to the verdict winner. See Allied Chem. 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 (3d Cir.1993); LifeScan Inc. v. Home Diagnostics,. Inc., 103 F.Supp.2d 345, 350 (D.Del.2000) (citations omitted); see also 9A Wright & Miller, Federal Practice and Procedure § 2531 (2d ed. 1994) (“On a motion for new trial the court may consider the credibility of witnesses and the weight of the evidence.”). 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. N.J. Transit Rail Operations, 953 F.Supp. 581, 584-85 (D.N.J.1997) (citations omitted). The court must proceed cautiously, mindful that it should not simply substitute its own judgment of the facts and the credibility of the witnesses for those of the jury. Rather, the court should grant a new trial on the basis that the verdict was against the weight of the evidence only where a miscarriage of justice would result if the verdict were to stand. See Williamson, 926 F.2d at 1352; EEOC v. Del. Dep’t of Health & Soc. Servs., 865 F.2d 1408, 1413 (3d Cir.1989). IV. MOTION FOR JMOL A. Infringement Standard A patent is infringed when a person “without authority makes, uses or sells any patented invention, within the United States ... during the term of the patent.” 35 U.S.C. § 271(a). To prove direct infringement, the patentee must establish, by a preponderance of the evidence, that one or more claims of the patent read on the accused device literally or under the doctrine of equivalents. See Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc., 261 F.3d 1329, 1336 (Fed.Cir.2001). A two-step analysis is employed in making an infringement determination. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir. 1995). First, the court must construe the asserted claims to ascertain their meaning .and scope. See id. Construction of the claims is a question of law subject to de novo review. See Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1454 (Fed.Cir.1998). The trier of fact must then compare the properly construed claims with the accused infringing product. See Markman, 52 F.3d at 976. This second step is a question of fact. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). “Direct infringement requires a party to perform each and every step or element of a claimed method or product.” Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1320 (Fed.Cir.2009) (internal quotation marks omitted). “If any claim limitation is absent from the accused device, there is no literal infringement as a matter of law.” Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed. Cir.2000). If an accused product does not infringe an independent claim, it also does not infringe any claim depending thereon. See Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989). However, “[o]ne may infringe an independent claim and not infringe a claim dependent on that claim.” Monsanto Co. v. Syngenta Seeds, Inc., 503 F.3d 1352, 1359 (Fed.Cir.2007) (quoting Wahpeton Canvas, 870 F.2d at 1552) (internal quotations omitted). The patent owner has the burden of proving literal infringement by a preponderance of the evidence. See SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir. 1988) (citations omitted). To establish indirect infringement, a patent owner has available two theories: active inducement of infringement and contributory infringement. See 35 U.S.C. § 271(b) & (c). To establish active inducement of infringement, a patent owner must show that an accused in-fringer “knew or should have known [their] actions would induce actual infringements.” DSU Med. Corp. v. JMS Co., Ltd., 471 F.3d 1293, 1306 (Fed.Cir. 2006). To establish contributory infringement, a patent owner must show that an accused infringer sells “a component of a patented machine ... knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial nonin-fringing use.” Golden Blount, Inc. v. Robert H. Peterson Co., 365 F.3d 1054, 1061 (Fed.Cir.2004) (quoting 35 U.S.C. § 271(c)). Liability under either theory,' however, depends on the patent owner having first shown direct infringement. Joy Technologies, Inc. v. Flakt, Inc., 6 F.3d 770, 774 (Fed.Cir.1993). B. Review of Record Claim 6 is directed to an HVAC system and recites: An HVAC system comprising; an indoor unit having a control operable to communicate characteristic information of said indoor unit to a central control, an outdoor unit having a control operable to communicate characteristic information of said outdoor unit to said central control; and said central control communicating with said indoor unit and said outdoor unit, and said central control receiving said characteristic information from said indoor unit and said outdoor unit, and determining an optimal control strategy for said indoor unit and said outdoor unit based upon said reported characteristic information, said central control storing a plurality of optimal control strategies, and selecting a particular one of said optimal control strategies to utilize based upon the particular characteristic information reported from said indoor unit and said outdoor unit; and wherein said indoor unit is one of a furnace and a heater/fan combination, and said outdoor unit is [ ]one of an air conditioner and a heat pump. (5:15-34) The court construed “optimal control strategy” as “a predetermined control strategy best-suited to operate the system for a given combination of units;” “optimal control strategies,” as “more than one ‘optimal control strategy;’ ” and “central control” as “a device capable of receiving user desired settings, receiving information from HVAC units, and communicating control signals to HVAC units.” (D.I. 315 at 2-4) Goodman asserts that the jury’s findings of infringement are not supported by substantial evidence. 1. Carrier’s evidence Goodman’s counsel cross-examined Ra-jendra Shah (“Shah”), an inventor of the ’004 patent, on figure 1, asking whether there would be a different control strategy for each combination of units. Carrier’s counsel objected to the questioning and the court agreed that the witness should not be questioned regarding claim construction, stating that the inventor’s description of the invention, if inconsistent with the court’s claim construction, would not be particularly relevant. Goodman’s counsel moved on to other questions. (D.I. 402 at 318:19-321:9) Jim Fisher (“Fisher”), a marketing product manager at Goodman Manufacturing, testified that Emerson makes the CTK01 thermostat for Goodman. (D.I. 402 at 392:24-393:7) The CTK01 sends information (temperature and humidity demand) to the indoor units and receives information from the indoor and outdoor units. The model and serial number are programmed into the indoor and outdoor units. (D.I. 402 at 397:7-14, 398:2-15) When asked if the features of the CTK02 and CTK03 (including auto-configuration and the use of four wires) were meaningfully different than features of the CTK01, Fisher responded that the core features were the same in the three thermostats and each behaves similarly. (D.I. 402 at 414:8-415:10) He also stated that his house is equipped with a CTK03 with an “Amana outdoor and a Goodman indoor furnace” and that he used to have a CTK02 thermostat. (D.I. 402 at 416:1-22) Gary Clark (“Clark”), an executive at Goodman, testified that the CTK01, CTK02 and CTK03 send and receive information for the indoor and outdoor units. (D.I. 402 at 432:20-433:14) The Goodman thermostat has programmed options and when it is installed, the thermostat picks the best-suited of the available options. (D.I. 402 at 437:18-438:6) Clark agreed that Goodman sold the ComfortNet system with either the CTK01, CTK02 or CTK03 thermostat. (D.I. 402 at 474:1-475:5; PTX46) Patrick Hudson (“Hudson”), a corporate representative for Honeywell, testified that Honeywell manufactures the CTK03 thermostat for Goodman and he assisted in its design and testing. (D.I. 402 at 517:9-18) He explained that a major feature of the CTK03 thermostat is the auto-configure allowing the thermostat to receive configuration information for the equipment on the ClimateTalk network. (D.I. 402 at 518:8-519:23) Hudson explained that whether the CTK03 “choose[s] a particular control algorithm to use based on the system that it’s setting up” depends “on your perspective on the control algorithm, whether you’re looking at the thermostat as having one control algorithm or if it’s a subset of smaller ones.” He agreed that a control algorithm is “just like a logic tree that the thermostat goes through in deciding how to run the system.” If, for example, there was no air conditioner, then “the thermostat would ... go through [the logic tree] to run that system[, but] would not include the portions for the cooling system.” He also agreed that “[i]f you have just an air handler, then the logic tree would be different than if you. had a furnace and an air-conditioning unit in the system.” (D.I. 402 at 521:8-522:23) He testified that the configuration data might include the number of cooling stages for an air conditioning unit and the displays might include the “number of furnace heating stages, the furnace input rate, [and] the furnace indoor blower motor horsepower.” (D.I. 402 at 524:1-525:14) Scott Vogel (“Vogel”), a corporate representative and strategic technology manager for connectivity at Emerson, testified that the thermostat sends “some signal to the network coordinator” and “the network coordinator communicates with the heating devices.” He stated that “[fjrom a thermostat standpoint ... it’s not different pieces of code,” but “it’s more like a decision tree,” i.e., it determines what units are connected and then makes a decision. (D.I. 402 at 527:6-528:4) He explained that the thermostat receives a configuration response (how many blower, heat, or cool stages) and a status response (error indications) from each unit. Each individual unit reports its own characteristics. The configuration data is hard coded into the individual HVAC units. Based on the configuration response from the different units, the thermostat decides whether to make the normal heat call versus the auxiliary heat call. The thermostat can then go through the decision tree in the source code. The communicating thermostats only work with ClimateTalk equipment. He further stated that the “decision branches” are different for different scenarios. (D.I. 402 at 529:9-536:11) He explained: Q. If the network coordinator is in the indoor unit or the outdoor unit, the network coordinator isn’t making calls for heating or cooling; right? A. No. Q. It routes a call that it gets [to] the thermostat to the other units? A. That is correct. (D.I. 402 at 536:12-18) The “decision tree is independent of where the network controller is located.” (D.I. 402 at 537:4-7, 536:19-541:16) Carrier’s expert, Dr. Greg Henze (“Henze”), testified that the ComfortNet system includes a family of outdoor units, a family of indoor units, and a family of three thermostats (CTK01, CTK02, CTK03). Henze testified that each installed system with “one of the three Comfort-Net thermostats,” “one of the indoor units,” and “one of the outdoor units” would perform auto-configuration. Each of the thermostats are “capable of operating with all of the indoor and outdoor units.” (D.I. 402 at 552:10-554:22; PTX59; PTX60) Henze testified that “[t]he network coordinator is basically the software concept that is responsible for routing information on the ClimateTalk network.” (D.I. 402 at 556:5-16) Henze agreed that he analyzed all the different potential combination of ComfortNet units and did not find any material differences in how the different combinations would perform the auto-configuration feature. (D.I. 402 at 559:3-10) Henze described claim 6 as having three physical components, an indoor unit, an outdoor unit, and a central control. In the ComfortNet system, the central controller is the thermostat. He referred to a “family of nine different Goodman Com-fortNet indoor models,” pointing out that one, “a furnace” that he saw operating, has “its own dedicated control board.” He explained that similarly the outdoor units have a control board. Applying the court’s construction of “central control” — “a device capable of receiving user desired settings, receiving information from HVAC units, and communicating control signals to HVAC units” — Henze testified that each of the CTK thermostats “allow[s] for user desired settings” including temperature adjustments or mode settings. Relying on a manual for condensing units (as well as testimony from engineers and individuals and source code), Henze testified that the thermostat “may request and receive information from both indoor and outdoor units.” For the communicating piece of the construction, Henze explained that the manual states that “[t]he thermostat still sends commands to the indoor and outdoor units.” (D.I. 402 at 562:17-567:6; PTX793) Henze concluded that the indoor and outdoor units have “a control operable to communicate characteristic information” to the central control. He explained that the characteristic information is size, type, capacity, model, and other parameters, as well as the blower stages, heat stages or cool stages, which fits within the court’s construction. He determined (looking at the source code and Vogel’s deposition testimony) that the characteristic information is preprogrammed. He agreed that “the Goodman ComfortNet system with one of the three thermostats and one of the indoor and outdoor units” meets the indoor and outdoor unit limitations of the claim. (D.I. 402 at 567:13-570:13) As to the central control, Henze testified (relying on an installation and service manual) that the indoor unit, outdoor unit, and thermostat communicate with one another. Henze pointed to an excerpt of an engineering specification for the CTK02 thermostat, which states that “the thermostat must use the information received from the subsystems to set up the individual subsystem operation and control.” (D.I. 402 at 571:10-12, 570:4-571:12) Moreover, the engineering specification for the CTK02 shows some of the characteristic information, including “the number of heat stages, cool stages, and the capability for humidification for a furnace.” The “central controller” receives information from units such as a furnace, AC, air handlers and heat pumps. Henze concluded that the ComfortNet system met all of the language in the “central control” limitation. (D.I. 402 at 571:13-572:13) He explained that the central control determines a strategy based on the information as received. The strategy is found among a plurality 'of strategies it has on its processor. And then it would select the right one given the configuration it’s dealing with. So there are basically three elements to this ... claim limitation, determining, storing and selecting. (D.I. 402 at 572:19-573:1) Applying the court’s construction for control strategy and optimal control strategy, Henze testified that “[t]here are more than one optimal control strategies” stored in the CTK thermostats. As to “determining,” Henze explained that “an engineering specification for the CTK02 thermostat made by Honeywell ... says that the thermostat shall use the information to determine the type of HVAC system it shall be configured as. The thermostat shall determine what type of system it is in control of.” (D.I. 402 at 573:2-575:3) Henze testified that he looked at the source code for each of the CTK thermostats. Henze explained that the auto-configuration source code reads characteristic information into the controller. A “different code” or “routine” determines the system configuration. Henze used an example of “a furnace[,] air conditioner and a thermostat” as the system configuration. He then explained that a series of if/then statements are used to determine if something is true and then “the thermostat would execute the lines of the code that follow that if statement.” The response to the “if” statement determines where in the code the thermostat goes next. He concludes that “the software code offers three options: Either single stage, two stage or modulating.” He then testified that there are code “provisions for the air handler and air conditioner and the heat pump.” “So ... any time it hears a configuration response from systems on the network, it will ask, are you an air handler, air conditioner, gas furnace or heat pump, and it will fall into the corresponding code that’s reserved for those types of system.” This allows the thermostat to “know what type of system configurations it is [and the] information pertaining to the individual unit.” The thermostat uses the information to “select the appropriate control strategy for exactly that type of system that were attached to the system.” The “heat load on and cool load on ... portions of the code ... send the heating or cooling percentage across the ClimateTalk network.” Henze explained that not all of the code is executed, instead, “[o]nly the pieces of code that are appropriate for this configuration of system and they’re always the same lines of code that are called through the system configuration unless the system configuration changes.” He extracted certain lines of code “and put them into a new file to show that they can stand by themselves. And ... what you see here is a contiguous piece of code that would be the optimal control strategy for that very combination we were discussing the two-stage air conditioner and two-stage furnace.” (D.I. 402 at 575:19-588:17; PTX734) Henze testified that a set of instructions “is optimal because it is best-suited for the combination of systems that we just learned is connected to the system.” As to the court’s claim construction, he explained that “what you see here is for a given combination of units, ... this particular strategy is adopted each and every time there’s a need for heating or cooling. And it is presumably the best-suited strategy for that combination of systems.” He further explained that the strategy is “predetermined,” because “[w]hen the configuration process is complete, no other strategy is executed, and it is residing in memory on the ... central control.” (D.I. 402 at 587:18-588:17; D.I. 403 at 619:2-620:12) Henze pointed to pages in the CTK01 manual which recited that “[t]he touchscreen control is the command center of the communicating HVAC system” and described the auto-configuration process whereby the thermostat is searching for the indoor and outdoor units; the CTK02 manual reciting “automatically identifying the communicating equipment installed and configure for the equipment as required;” and the CTK03 manual reciting “the thermostat will automatically identify the ComfortNet communicating equipment.” (D.I. 403 at 614:13-616:15) Turning back to the source code, Henze pulled out lines of code to create a “set of instructions for the two-stage furnace with two-stage heat pump combination” and testified that in the same way there would be “a stack of control strategies that would be available.” These are the plurality of optimal control strategies for the various combinations of units. (D.I. 403 at 620:4-19) He testified that the CTK02 engineering specification was sufficient to show that the claim limitations were met, but the source code confirmed his analysis. Henze explained that he used the same process to review the CTK01 and the CTK03 engineering specifications, which indicated that they were performing the same determining, storing and selecting and that the CTK01 can auto-configure different combinations of units and configurations. (D.I. 403 at 616:22-625:1; PTX734; PTX926) As to the limitation, “wherein said indoor unit is one of a furnace and a heater/fan combination,” Henze testified that the indoor unit in the ComfortNet system is either a furnace or a heater/fan combination. Moreover, he explained that the outdoor unit in the ComfortNet system meets the last piece of claim 6 (that the outdoor unit is one of an AC and a heat pump). Henze concluded that the Com-fortNet system using a CTK thermostat infringes claims 6. As to claim 7, the central control is in the thermostat, thus, mounted ón a unit other than the indoor and outdoor unit. Claim 8 specifically calls for the control to be in the thermostat, which corresponds to the location of the control in the ComfortNet system. Henze concluded that claim 8 was infringed by the ComfortNet system. Henze testified that claim 13 required that “characteristic information collected from the indoor and outdoor unit comes to the central control over [a] single data bus.” Applying the court’s claim construction and relying on the condensing unit installation service reference, Henze concluded that “the indoor unit, outdoor unit and the thermostat communicate digitally with one another, ... a two-way communicating path.” Henze stated that Vogel’s testimony confirmed that “the units are connected, not separately, but via a common ... data bus.” Henze concluded that the ComfortNet system infringed claim 13. (D.I. 403 at 625:16-629:23) On cross-examination, Henze admitted that the term “optimal control strategy” was not in the comments of the source code. When asked whether the reason was “that the people who wrote that source code did not think they were writing optimal control strategies or optimal anything,” he responded “[d]o you ... think [the engineers] intended to write anything but the best of the industry’s known strategies for a combination?” and “[d]o you think the engineers at Emerson or Honeywell would intentionally program mediocre strategies and label them as mediocre.” (D.I. 403 at 638:12-639:3) Goodman’s counsel attempted to set up a hypothetical based on the Academy Awards regarding the control strategies. At sidebar, the court reminded Goodman’s counsel that the focus of the claim construction was on the predetermined nature of the strategy, not the ultimate result and, therefore, the attempted hypothetical was contrary to the spirit of the claim construction and would not be allowed. (D.I. 403 at 653:25-657:8) After Carrier’s counsel objected to the admission of U.S. Patent No. 7,894,943 as being related to the best-suited issue, Goodman’s counsel did not pursue the line of questioning. (D.I. 403 at 658:22-659:21) Goodman’s counsel then attempted to create a hypothetical involving using a combination of units in a cabin in Vermont and a mansion in Phoenix. The court questioned the purpose of the hypothetical and counsel chose to move on. (D.I. 403 at 660:25-662:4) Outside the presence of the jury, the court restated to the parties that, as explained in the summary judgment opinion, the focus was on the predetermined nature of the control strategy. (D.I. 403 at 663:12-14) Henze agreed that his infringement opinions were based on a number of sources, including the source code written by Emerson and Honeywell. (D.I. 403 at 639:4-14) He admitted Goodman did not have access to the source code. (D.I. 403 at 640:5-11) Henze conceded that Emerson and Honeywell could not have copied the communication protocols from Carrier. (D.I. 403 at 643:8-24) He agreed that the CTK01 and CTK02 use slightly different source code to achieve the “same thing on the microprocessor” (D.I. 403 at 649:14-22) and that the CTK03 source code was written by Honeywell and was “very different” (D.I. 403 at 649:23-650:5). Henze agreed that the source code contained multiple “if’ statements, some of which related to the identification or the determining part of the claims construction. Henze did not agree that the language requiring a plurality of control algorithms is met “by code that goes to one if statement in one instance that would be one control strategy, and if it goes to another if statement in another instance, that would be another control strategy.” (D.I. 403 at 666:4-667:4) He agreed with the description of a decision tree provided by Goodman’s counsel, which have some branches of code that execute for a certain combination of units. (D.I. 403 at 667:12-668:8) Henze was asked the following: Q. All right. Now, would you agree with me that one thing that the selecting language of that patent does not cover, it absolutely cannot cover an algorithm or control strategy that simply receives values for its input variables. That’s not what that claim covers in your view? A. Would you mind paraphrasing that? Q. Okay. One thing that this claim doesn’t cover are algorithms or control strategies that simply receive values as input variables. That’s not what this claim could possibly cover? A. That struck me a bit with the language. It is, upon the request of the configuration, the configuration response is parsed into individual pieces. Those are then used to make a decision on whether to go, whether to adopt the blue branch combination or the red branch combination or the green branch combination you’ve used to show. Q. Okay. And is that in your view different from an algorithm or control strategy that simply receives values as an input variable? A. I’m, of course, stuck still with that question. Q. Fair enough. So returning to our tree here? (D.I. 403 at 669:14-670:10) Using a publication by Henze involving using realtime weather data to inform a model predictive control strategy using if-then conditions, Goodman’s counsel asked whether this would be one strategy or multiple strategies. Henze responded “[i]t’s an effort to make the strategy robust against missing data.” (D.I. 403 at 675:1-676:25) Goodman’s counsel objected to the admission of PTX793 (the condensing unit installation service reference) and the related testimony. (D.I. 403 at 741:23-742:4) Goodman then moved for judgment as a matter of law on direct and induced infringement, arguing in part that Henze did not testify consistently with his report, instead, he compared bits and pieces of the thermostats to the claims. (D.I. 403 at 742:25, 742:15-749:21) The parties discussed with the court Henze’s reliance “on source code to demonstrate infringement” (id. at 750:17), but “on some system[-]wide nebulous information” (id. at 750:17) when talking about induced infringement. (Id. at 750:17-19) 2. Goodman’s evidence Vogel testified that Emerson’s work evolved from Varitech messages to Clima-teTalk messages. Varitech was not an open standard. ClimateTalk was an open standard, i.e., shared to anyone in the community who joins the ClimateTalk alliance, which was made up of a number of companies. For example, Goodman and Rheem use the ClimateTalk protocol. (D.I. 403 at 787:3-788:18; DTX10) Vogel described that the 1F99, a touchscreen thermostat, was not capable of becoming the network coordinator; however, every other device (air handler, furnace control, the outdoor unit) in that system was so capable. (D.I. 403 at 788:19-789:2) Vogel explained the steps taken by the coordinator to satisfy a request: the coordinator polls the devices sending out a request to receive messages; the thermostat communicates the set point change calling for heat; the coordinator goes through the devices capable of providing heat and then routes the heat message; the response is routed back to the coordinator and then the coordinator routes the message back to the thermostat. “[T]he overall effect is that the message is routed to the coordinator, to the device, and then the response is routed back to the coordinator and back to the requesting device.” (D.I. 403 at 789:3-790:12) Vogel also provided an example where “commands from the outdoor unit will go to the indoor unit to control any operation of the indoor unit.” He testified that Emerson closely guarded its code and did not provide it to Goodman. (D.I. 403 at 790:13-791:12) An open protocol allows more flexibility: A customer can buy a thermostat from one company and an air conditioner from another, for example, a Goodman ComfortNet thermostat used with a Rheem indoor and outdoor unit. (D.I. 403 at 794:5-21; 798:1-5) The Clima-teTalk protocol was set up to be a distributed control. (D.I. 403 at 796:7-11) Vogel was asked the following: Q. You mentioned a defrost feature earlier ... where ... the outdoor unit has to stop providing a heating function for the home and calls for the heat from the indoor units ... [and i]n that situation, the outdoor unit hasn’t made a decision or determined that the house needs heating. The thermostat decided that. Fair? A. No, the outdoor unit itself made the determination it needed to defrost. (D.I. 403 at 797:15-25) Vogel testified that only one decision tree is used to determine where to send information. (D.I. 403 at 800:21-801:4) Rolf Strand (“Strand”), an engineer with Honeywell who worked on the CTK03 thermostat, testified that the ClimateT-alk protocol is “used to communicate between a thermostat, an indoor furnace or air handler and [an] outdoor air conditioner and a few other devices in the system.” (D.I. 403 at 805:8-14) Strand explained the priority device routing control in the CTK03: In CTK03 it sends one of those commands, heat, cool, fan, emergency, defrost or auxiliary] heat. Those commands are sent to the [integrated furnace control (“IFC”) ], and then the IFC actually looks at the system and says, are any of these other devices installed? And if they are, it chooses to send the command on to that system based on the priority list. (D.I. 403 at 820:19-820:24; DTX178 at 20) For example, the heat command is processed as follows: So that central box called network coordinator, that’s a software process that exists inside the IFC in the [furnace]. And it sends requests to the thermostat to say do you have any information you would like to send me. And then the ... thermostat might send out, I would like to have some heat, because the house needs to be heated. The [network] coordinator function receives that request, consults the priority array list to see which systems are installed. In this system, there’s a heat pump controller and integrated furnace control. Next, it would route that message to the heat pump control rather than the integrated furnace control. (D.I. 403 at 819:16-821:20) If there were no heat pump control available, Strand testified that “it would be routed to the integrated furnace control instead,” with the decision being made “in the network coordinator which resides in the integrated first control.” (D.I. 403 at 821:21-822:2) Moreover, he stated that the control strategy in the CTK03 is “just a digital simulation of what goes on in that mechanical thermostat” and agreed that “Honeywell has been doing [this simulation] since 1950.” (D.I. 403 at 822:6-23) Hudson testified that he and other engineers wrote the application software for CTK03. (D.I. 403 at 832:17-24) He considers the CTK03 to be a distributed control device. Responding to a hypothetical, Hudson agreed that the “algorithm or logic which would be used to operate a two-stage Goodman furnace and the CTK03 is the exact same logic or algorithm which would be accessed to operate a two-stage Trane furnace [and a CTK03].” (D.I. 403 at 833:11-834:11) Hudson explained that the CTK03 communicates only with the network coordinator. It does not communicate with the devices on the network, unless one of the devices is the network coordinator. Hudson testified that the thermostat is not capable of being a network coordinator. (D.I. 403 at 835:17-836:24) “The decision that the thermostat makes in the control algorithm to turn a heating stage on or off is identical []regardless of the type of equipment [present]. There are variables, but that is not one of them.” (D.I. 403 at 837:16-20) Hudson also explained that the control of defrost is not done by CTK03. (D.I. 403 at 838:11-13) On cross examination, Dr. Douglas Scott Notaro (“Notaro”), a principal controls engineer at Goodman, testified that Clima-teTalk is a distributed control because the network coordinator can move around in the equipment, but cannot be located in the thermostat. Referring to a marketing specification for the CTK03, he concluded that the thermostat does not become the network coordinator or have network coordinator capability. Using two examples of systems, Notaro illustrated “that the same message that comes from the thermostat in one instance gets routed outside and in the other instance gets routed inside, and that shows that the network coordinator has intelligence to it and it makes decisions.” (D.I. 403 at 875:15-19, 871:22-876:24, 877:9-19; DTX173; DTX178) No-taro read from a ClimateTalk Application ’ Profile, which stated that the “thermostat shall transmit a heat demand control command to the furnace.” (D.I. 404 at 944:13-18; DTX179) He admitted that Goodman has the set of rules for the software, so it has the knowledge of “how the communications happen[,] ... what communications are sent and where they’re sent to.” He agreed that no matter where the network coordinator is, the thermostat, the indoor unit, and the outdoor unit are each capable of sending and receiving information. He also agreed that the messages are sent over a data bus and some messages include certain information (number of stages and possible airflow) about the indoor and outdoor units. (D.I. 404 at 946:8-947:20) In his opinion, the actual information is being transmitted to the thermostat or indoor and outdoor unit from the network coordinator. In response to a hypothetical, he agreed that if a call is placed he would be communicating with the Verizon network, not with the person. (D.I. 404 at 949:21-23) He agreed that, according to Emerson, the thermostat transmits heat and cool control commands. (D.I. 404 at 950:11-951:7) On redirect, Notaro explained that engineers may speak to each other differently or more technically than with lay people. (D.I. 404 at 956:24-957:17) Dr. David Auslander (“Auslander”), Goodman’s expert, testified as follows regarding non-infringement. For claim 6, Auslander acknowledged the court’s constructions of “central control” and “optimal control strategies.” He explained (with reference to figure 1 of the patent) that the patent labeled three different types of devices — indoor, outdoor and ventilation devices. The patent points out “the four control strategies.” Auslander testified that ClimateTalk uses a generic code. (D.I. 404 at 996:2-999:22) For example, the combination of Goodman units, “the GMVC95 furnace connected to a DXC616 outdoor heat pump,” uses the same stored code as the combination of the thermostat in the same indoor unit with a different Goodman outdoor unit, model DSXC18. (D.I. 404 at 999:25-1000:17) The CTK thermostats will also work with Rheem indoor and outdoor units using the same code as with like Goodman units. Auslander agreed with Hudson’s testimony that the CTK thermostats do not store optimal control strategies. Auslander testified that each of the CTK thermostats operates in the same manner. As to the determining step, Auslander explained that there are a number of variables that must be set manually, including the DIP switches, therefore, the CTK thermostats do not “determine an optimal control strategy.” He stated that this conclusion was consistent with Hudson’s testimony. (D.I. 404 at 1000:18-1006:2) As to the selecting limitation, Auslander explained that the patent uses “characteristic information drawn from ... this combination of units ... and that characteristic information is then used to select one of these ... algorithms.” Looking at figure 1, the patent illustrates different control strategies for different combinations of units. According to Aus-lander, the CTK thermostats do not operate in this way. (D.I. 404 at 1006:3-1008:4) Looking at the source code for the CTK02 thermostats, he explained that the basic thermal control calculations are done without the use of characteristic information and used to determine exactly what kind of heat and cool is needed to meet the temperature settings on the thermostat. (D.I.1010:15 — 1013:18) He continued: ' So up to the time that these functions are called and the program splits off into these four different functions, heat load on, heat load off, cool load on, cool load off, no characteristic information has been [used] at all. Inside these functions, then, the characteristic information is scattered throughout the function so that they can properly deliver whatever kind of load on or load off is required and deliver it appropriately for whatever units are installed. (D.I. 404 at 1013:18-1014:2) Auslander concluded that the “organization of the software is entirely different from what is called for in the patent.” Therefore, the “selecting” limitation is not met. (D.I. 404 at 1014:5-16; DTX403) He testified that Goodman’s code was generic and if one “look[s] inside the heat load on, heat load off functions, which is where the characteristic information is found, [one] see[s] that only a minimal amount of characteristic information is used.” (D.I. 404 at 1014:19-22) Looking at a section of code from the CTK01 thermostat, Auslander opined that it had “almost exactly the same structure” as the other [CTK02] code and “shows ... that the code is not organized according to the way that the patent requires,” as it relates to the storing and selecting steps. The Honeywell code for the CTK03 “has the same sort of structure in which the control calculation is done and then the characteristic information is scattered throughout the code.” He concluded that none of the CTK thermostats meet the storing, determining, and selecting limitations of claim 6. (D.I. 404 at 1018:20-1020:13; DTX399) Auslander opined that the network coordinator resided in either the indoor or outdoor unit. He explained that for the CTK03, the receiving user goes into the thermostat and the “receiving information from HVAC units and the communicating control signals to HVAC units” could be either in the indoor or outdoor unit. This is the same for the CTK02. (D.I. 404 at 1024:3-1025:22) On cross-examination, Auslander agreed that in his opinion the four limitations— central control, storing, selecting, and determining were not met by the Comfort-Net system. (D.I. 404 at 1121:1-10) Aus-lander admitted that information about the HVAC unit leaves the HVAC unit and is ultimately received at the thermostat. (D.I. 404 at 1128:16-1129:1) He agreed that the communicating control signals to the HVAC unit are capable of originating at the thermostat in all three of Goodman’s systems and that those control signals are ultimately received in all of Goodman’s systems by HVAC units. (D.I. 404 at 1131:13-20) He also agreed that the network coordinator can reside in an indoor unit or an outdoor unit and when it does so the information comes directly from the unit to the thermostat in Goodman’s system, adding “in terms of pieces of equipment.” (D.I. 404 at 1135:5-17) He stated that “the characteristic information is used somewhere in the code for all three systems ...” (D.I. 404 at 1139:3-8) In closing, Goodman’s counsel stated that Auslander’s testimony regarding the Rheem units was brought up to illustrate the lack of multiple control strategies under the court’s construction, as the thermostat uses the same code for Goodman’s units. Strand testified that the Honeywell system uses a digital representation of the same control strategy that it implemented after World War II. (D.I. 405 at 1369:15-1371:11) Counsel argued that the control strategy only “get[s] you partway,” per Auslander’s explanation that the accused thermostats do not meet the determining language because the installer can make a manual adjustment. (D.I. 405 at 1376:13-1377:3) After Goodman’s closing, Carrier’s counsel objected to Goodman’s use of argument relating to “auto-configuration” and the need for modifications because the system might not be best suited for the home. (D.I. 405 at 1398:23-1399:13) C. Analysis 1. Claim construction of “optimal control strategy” For the limitation “optimal control strategy,” the court explained that the central control “has available to it optimum operational strategies based upon the combination of several units that have reported” and “can identify and utilize appropriate controls for the particular combination.” (1:56-58, 3:43-45) Moreover, the court cautioned that the parties were expected to present the claim construction to the jury consistently with any explanation or clarification provided by the court, even if such language was not included within the quotes. (D.I. 315 at 3-4, 6) In rejecting Goodman’s argument for indefiniteness, the court emphasized that the construction and Henze’s explanation for “optimal control strategy” focused on the “predetermined” nature of such strategy. Moreover, one of ordinary skill in the art is apprised with reasonable certainty that the claims focus on whether a manufacturer has predetermined control strategies that it deems optimal for a given set of HVAC units, that is, the central control would select the optimal control strategy provided to it by the manufacturer. (D.I. 316 at 13-14) The evidence summarized above shows that, at trial, Goodman tried repeatedly to focus this claim limitation on the “best-suited” aspect instead of the “predetermined” nature of the algorithm as required by the court. Concentrating again on the “best-suited” aspect in its briefing, Goodman argues that “Carrier’s expert offered conclusory allegations not linked to any particular thermostat, and pointed to nothing in the code identifying a ‘best-suited’ ‘strategy.’ ” (D.I. 397 at 8) The court declines to reconsider its claim construction and concludes that Henze properly applied the predetermined nature of such construction in testifying that a particular strategy is adopted for a given combination of units. 2. Particularized evidence Goodman argues that Carrier’s witnesses did not address all of the limitations of at least one asserted claim, i.e., Henze “did not present particularized evidence that any specific accused thermostat combined with an identified indoor unit and outdoor unit would meet every limitation.” (D.I. 397 at 3) Henze testified that the ComfortNet system included a family of outdoor units, indoor units, and three CTK thermostats. PTX60 states that the “ComfortNet Communicating System is compatible with a wide variety of Goodman® and Amana® brand condensing units and gas furnaces” and lists certain model numbers for air conditioners/heat pumps, gas furnaces, and air handlers/blowers. Referring to this exhibit, Henze testified that each of the thermostats may operate with each of the indoor and outdoor units. Moreover, he stated that he analyzed all of the different combinations and did not find any material differences. At least for the model numbers listed on the admitted exhibits, the court concludes that Henze sufficiently identified the system and its component units. As to the indoor and outdoor units, Henze testified that for a certain list of indoor and outdoor units, each unit had a control board. Fisher and Vogel testified that certain characteristic information was preprogrammed into the indoor and outdoor units, and the units reported certain of the characteristics. Henze concluded that the indoor and outdoor unit claim limitation was met. Such testimony is sufficient. For the central control limitation, Henze concentrated his testimony on the CTK02 thermostat and separated out portions of code (responsive to if/then statements regarding which units are present in the system) to put together a control strategy. Although Henze conceded that the CTK03 source code was “very different,” he testified that he reviewed the CTK03 engineering specification and it performed the determining, storing and selecting requirements. Fisher testified that the core features were the same in the three CTK thermostats and that they behaved similarly. Auslander also testified that the three CTK thermostats operated in the same manner. Having reviewed the record at bar, the court concludes that Carrier presented evidence of the “determining,” “storing,” and “selecting” steps. 3. Plurality of optimal control strategies For the CTK03 thermostat, Hudson testified that the source code is a “logic tree” used by the thermostat to run the system. It receives configuration information for the equipment and auto-configures. Vo-gel testified that the CTK01 and 02 thermostats use a “decision tree” to run the system and to make decisions after determining what units are connected. The thermostat receives a configuration response from each unit. Henze agreed that the code was a “decision tree,” with branches of code that execute for a certain combination of units. He explained that the thermostat uses configuration responses from the units to respond to ifi then statements, after which the thermostat executes lines of code based on those responses. Henze demonstrated this by selecting the different lines of code, i.e., different branches of the decision tree, to arrive at a control strategy for a specific combination of units. According to Henze, such a strategy is “stored” or “selected.” The parties’ dispute is whether multiple “optimal control strategies” may be found in a single decision tree by agglomeration of “tree branches.” The court construed “optimal control strategy” to mean “a predetermined control strategy best-suited to operate the system for a given combination of units.” The “predetermined” nature of the strategy is reflected in the patent specification — the central control “has available to it optimum operational strategies based upon the combination of several units that have reported” and “can identify and utilize appropriate controls for the particular combination.” (1:56-58, 3:43^15) The evidence reasonably supports the jury’s conclusion, applying the court’s construction, that multiple optimal control strategies are present in the decision tree. 4. Central control Goodman argues that the network coordinator receives information from and communicates with the HVAC units, whereas the claim language requires that the “central control,” here the thermostat, “directly” perform this function. Goodman adds that, for systems with the CTK01 and 03 thermostats, the network coordinator cannot be on the thermostat and Carrier has no evidence that it was ever on the CTK02 thermostat. (D.I. 420 at 7) The court construed “central control” .as “a device capable of -receiving user desired settings, receiving information from HVAC units, and communicating control signals to HVAC units.” The court specifically declined to limit “central control” to the preferred embodiment in which the central control is both a bus master and a system master, as suggested by Goodman. (D.I. 315 at 2-3) The specification explains that the various HVAC units “communicate with the [central control],” the microprocessors of the various HVAC units “receive instructions from the [central control],” and the central control “sends instruction to achieve temperature, etc. as requested by a user through the thermostat.” (2:44-51)' Vogel testified that the network coordinator (not the thermostat) communicates with the various devices. He also explained that a certain touchscreen thermostat was not capable of becoming the network coordinator. However, he also testified that the thermostat receives the configuration response and a status response from each unit. Further, the thermostat can then go through the decision tree in the source code. Hudson testified that the CTK03 thermostat is not capable of being a network coordinator. However, he explained that the thermostat receives configuration information for the equipment and agreed that the thermostat goes through the logic tree to run the system. Notaro agreed that no matter where the network coordinator is, the thermostat, the indoor unit, and the outdoor unit are each capable of sending and receiving information. Henze testified that the thermostats meet the requirements of the “central control” limitation. The various witnesses testified about a network coordinator and answered questions regarding what the “thermostat” does. Using this testimony and the court’s provided construction, the jury’s conclusion that the thermostats satisfy the various requirements of the “central control” limitation is reasonable. V. MOTION FOR A NEW TRIAL A. Arguments to the Jury Goodman alleges that the jury’s verdict finding the patent valid and infringed was a result of Carrier’s presentation of “irrelevant and highly prejudicial emotional issues” at trial. (D.I. 397 at 17) Specifically, Goodman alleges that Carrier made improper arguments to the jury concerning indemnity, presented a moving target of “copying,” and compared invalidating a patent to the termination of parental rights. (Id. at 17-22) 1. Indemnification To introduce the issue, Goodman points the court to Clark’s deposition testimony, identifying a “standard purchase order” with “kind of some statements on the back that [Goodman] uses with all [its] transactions.” (D.I. 399, ex. 2 at 118:11-119:2) Clark also testified that White-Rodgers and Emerson declined to enter into a purchase agreement that had an indemnity provision. (D.I. 399, ex. 2 at 203:8-13) During trial, Fisher testified that the vendor (Emerson or Honeywell) would have been responsible for searching for patents. In 2009, Emerson promoted the circuitry for the ComfortNet Communicating System, for which Emerson designed the control boards, the control and the motor. Fisher did not know if Goodman deliberately or accidently did not search for patents. Fisher admitted that a conceptual design report for the “4-wire communication project at Goodman” stated “assess the intellectual property issues;” however, those lines were marked as excluded. (D.I. 402 at 387:2-3; 390:13-395:11) Carrier’s counsel asked Clark if Goodman had a “deal in [its] purchase order and a standard term that if the product you make or sell is infringing, well, maybe Emerson has to pay for that and not” Goodman. (D.I. 402 .at 477:2-5) The court overruled Goodman’s objection that the question was irrelevant as it related to indemnification. (D.I. 402 at 477:6-15) Clark then testified that the standard conditions and terms (on the back of Goodman’s purchase order) included an indemnification clause from Emerson for goods furnished by Emerson alone or in combination with other goods not furnished by Emerson. Clark testified that he believed Goodman “did look for patents” and disagreed with the characterization that Goodman would not look for patents because Emerson would be responsible. (D.I. 402 at 477:17-480:24; PTX40) Looking at a Goodman document, Clark testified that for the CTK02, Goodman did not assess the intellectual property, because Emerson, the supplier was supposed to do so. (D.I. 402 at 482:25-483:23) During Carrier’s closing rebuttal, counsel argued Goodman knew of the infringement, but put the responsibility on Emerson who built the central control for Goodman. (D.I. 405 at 1410:15-1412:1) Specifically, [Goodman] could have asked and found out [about patents] and they didn’t. It’s willful blindness. You can’t put your head in the sand.Not asking. Is that a defense to infringement, I didn’t ask? And the reason you may remember ... why they didn’t ask is because they just don’t care, because you heard with Mr. Clark that when they entered a contract with Emerson, they tried to put the exposure on Emerson. For inducement, this is evidence of why they did what they did and what they knew. If Emerson is going to pay, what’s the harm here? I can get in the marketplace and make more money and I’ve got something in my back pocket. I don’t have to pay for that. Emerson has to pay for it. At some point, maybe at Goodman the desk is empty, but at some point, you have to take responsibility. (D.I. 405 at 1412:2-18) In a sidebar, Carrier’s counsel argued that Goodman outsourced the patent search process to Emerson and the purchase order containing the indemnity statement was in evidence, thus, properly referred to in closing. Goodman’s counsel responded that Emerson and Goodman did not agree on the application of the indemnity clause, the clause has limitations and should not have been used to suggest that Emerson would bear any and all responsibility if the jury found against Goodman. (D.I.1414:11-1427:1) The court stated that “it is not my practice to allow inferences that are not consistent with the truth to influence the jury.” (D.I.1418:8-19) Moreover, “if I had realized what was going on, I would have thought this was a more important issue at the time than it is, because to have a standard form that you sign with respect to every product and change it into a motivation to ignore [intellectual property], that’s a pretty big stretch.” (D.I. 405 at 1423:3-13) After further discussion, the court declined to issue a curative instruction as there was “no good way to fix” the issue, partly because of Goodman’s “position that the key to infringement is in Emerson’s hands,” making Emerson part of the case. (D.I. 405 at 1425:4-1426:25) The court instructed the jury on direct infringement in pertinent part: “Goodman’s knowledge or intent to infringe is not relevant to whether Goodman directly infringes the asserted claims, but is relevant to whether Goodman induces customers to infringe.” (D.I. 405 at 1441:14-17) Federal Rule of Evidence 411 states that “[ejvidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a wit