Sunoco Partners Mktg. v. U.S. Venture, Inc. (339 F. Supp. 3d 803, 2018)

REBECCA R. PALLMEYER, United States District Judge

Plaintiff Sunoco Partners Marketing and Terminals L.P. ("Sunoco") is the holder of five patents covering a system and method for blending butane into gasoline immediately before the mixture is distributed to the tanker trucks that supply retail gas stations. Sunoco sued Defendant U.S. Venture, Inc. and its subsidiary, U.S. Oil Co. (together, "Venture"), for infringing Sunoco's patents at six of Venture's fuel terminals. (Am. and Supp. Compl. for Patent Infringement [161] ("Sunoco's Am. Compl."), 4.) Venture filed numerous counterclaims in response, seeking declaratory judgments of non-infringement, invalidity, and unenforceability based on the inventors' allegedly inequitable conduct before the U.S. Patent and Trade Office ("PTO") during the patents' prosecution. (Venture's Answer, Aff. Defenses, and Countercls. to Pl.'s Am. Compl. [174] ("Venture's Am. Answer"), 52-89.) In a previous opinion, this court granted partial summary judgment in favor of Sunoco on several of its infringement claims. Sunoco Partners Marketing & Terminals L.P. v. U.S. Venture, Inc. , No. 15 C 8178, 2017 WL 4283946, at *1 (N.D. Ill. Sept. 27, 2017) (" Sunoco SJ Opinion I ").

The parties have now filed additional, opposing motions for summary judgment. Venture seeks summary judgment of non-infringement, a declaration of invalidity of certain claims in Sunoco's patents, and a ruling barring an award of lost profits damages. (Venture's SJ Mot. [363], 1-2.) Sunoco's cross-motion for summary judgment does not seek further rulings on the question of infringement, but does ask the court to dismiss certain of Venture's counterclaims before trial. To this end, Sunoco moves for an order declaring that (1) three references identified by Venture are not prior art under 35 U.S.C. § 102 ; and (2) Sunoco's patents are not unenforceable due to inequitable conduct. (Sunoco's SJ Mot. [354], 1.) For the reasons stated below, Sunoco's motion is granted and Venture's motion is granted in part and denied in part.

BACKGROUND

Sunoco is the holder of five patents on systems that blend butane and gasoline: U.S. Patent No. 6,679,302 (the "'302 Patent") ; No. 7,032,629 (the "'629 Patent") ; No. 7,631,671 (the "'671 Patent") ; No. 9,494,948 (the "'948 Patent") ; and Patent 9,606,548 (the "'548 Patent"). The court has already described the invention in detail in its claim construction opinion, see Sunoco Partners Marketing & Terminals L.P. v. U.S. Venture, Inc. , No. 15 C 8178, 2017 WL 1550188, at *1-3 (N.D. Ill. Apr. 28, 2017) (" Sunoco Markman Opinion "), and first summary judgment opinion, see Sunoco SJ Opinion I , 2017 WL 4283946, at *1-7. The court presumes the reader's familiarity with those opinions and provides only a brief summary of the relevant facts here.

The court's previous summary judgment opinion explained that

[c]ommercial purveyors of gasoline-those that sell gasoline by the tankload to consumer-facing retail gas stations-add butane because it is more volatile than gasoline, allowing cars to start consistently in colder weather. Because adding lower-priced butane to gasoline improves profit margins, commercial sellers are motivated to blend as much butane as possible into gasoline before selling it to retail stations.

That goal, however, is complicated by United States Environmental Protection Agency ("EPA") regulations. As noted, adding butane to gasoline increases the volatility of the blended gasoline, but gasoline with higher volatility contributes to smog, a particular concern in warmer climates and during summer months. Gasoline Reid Vapor Pressure , EPA.GOV, https://www.epa.gov/gasoline-standards/gasoline-reid-vapor-pressure (last accessed Oct. 6, 2017). The EPA therefore imposes limits on the allowable volatility of gasoline, measured by "Reid Vapor Pressure" or RVP, based on the month and the state where the gasoline is sold. Limits range from an RVP of 7.8 pounds per square inch to 15....

The patented systems allow the patent holder to blend butane into gasoline at the last point of distribution before the gas is taken by tanker trucks to retail gas stations; called "terminals" or "tank farms," these facilities receive gasoline from refineries and store it in large tanks for distribution. (See '302 Patent col. 4 ll. 38-60.) In an exemplary embodiment, the system blends butane into gasoline immediately before it is dispensed into a tanker truck: butane and gasoline are drawn from a tank of each, blended to the desired RVP in a blending unit, and dispensed to the truck. (E.g. , '302 Patent col. 3 ll. 14-27.)

Sunoco SJ Opinion I , 2017 WL 4283946, at *1 (internal citations to record omitted).

Variations on these systems, as described in Sunoco's later patents, relate to "in-line processes for blending butane into a gasoline stream, that allow butane to be blended into a gasoline stream at any point along a petroleum pipeline." ( '948 Patent, col. 1 ll. 22-25; '548 Patent, col. 1 ll. 22-25.) The invention described in these patents "combin[es] the advantages of in-line vapor pressure monitoring both upstream and downstream of a butane blending operation," thereby allowing users "to blend butane with petroleum products at practically any point along a petroleum pipeline, regardless of variations in the flow rate of gasoline through the pipeline, the time of year in which the gasoline is delivered, or the ultimate destination to which the gasoline is delivered." ( '948 Patent, col. 3 ll. 18-26; '548 Patent, col. 3 ll. 18-26.)

Steven Vanderbur and Larry Mattingly are named as the inventors on all five patents at issue in this case. For an unidentified period before February 2001, both Vanderbur and Mattingly worked with a company called Texon Terminals to install and operate gasoline and butane blending equipment. (Sunoco's 2016 Statement of Material Facts [132] (hereafter "Sunoco's 2016 SOF"), at ¶ 11.) On February 9, 2001, Mattingly and Vanderbur filed the provisional application that resulted in each of the five patents. (Venture's 2017 Statement of Material Facts [371] (hereafter "Venture's SOF"), at ¶ 3; '302 Patent.) Mattingly and Vanderbur subsequently assigned the patents to Texon, and Sunoco became the patents' sole owner when it purchased Texon's butane blending business in 2010. Sunoco SJ Opinion I , 2017 WL 4283946, at *2.

In or around 2012, Defendant Venture retained former-Defendant Technics to install a butane blending system at three of Venture's terminals located in Green Bay, Madison, and Milwaukee, Wisconsin. Id. Venture also owns at least three other butane blending systems-one located at a second facility in Milwaukee, the other two in Fort Worth, Texas, and Bettendorf, Iowa, respectively-that it developed and installed on its own, after the Technics systems were installed. Id.

Sunoco sued both Venture and Technics in September 2015, claiming that all six of these systems infringe the butane-blending patents Sunoco acquired from Texon. Id. Venture's counterclaims seek declaratory judgments that its systems do not infringe any of Sunoco's patents; that each of the patents is invalid; and that each of the patents is unenforceable due to the purported inequitable conduct of Sunoco and/or prior owners of the patents. (See Venture's Answer and Counterclaims [174].) Sunoco entered into a settlement agreement with Technics in June 2016, whereby Sunoco agreed not to sue Technics for infringing activities that took place before the date of the settlement agreement. Id.

After construing certain terms in the patents, this court granted partial summary judgment to Sunoco on its claims that Venture infringed certain claims in the '302 and '629 patents. Sunoco SJ Opinion I , 2017 WL 4283946. Sunoco has now filed a second motion for summary judgment [354] on two issues raised in Venture's counterclaims: (1) whether certain references qualify as "prior art" under 35 U.S.C. § 102, and (2) whether all five of Sunoco's patents are unenforceable due to alleged inequitable conduct during prosecution. Venture, meanwhile, seeks summary judgment [363] in its favor on certain of its anticipation and non-infringement counterclaims. Venture also seeks summary judgment on the issue of whether Sunoco is entitled to damages for lost profits. The parties' motions do not overlap, so the court considers their motions-and their additional evidence supporting those motions-in turn.

DISCUSSION

To prevail on a motion for summary judgment, the moving party must show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). In ruling on a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's favor. Sweatt v. Union Pac. R. Co. , 796 F.3d 701, 707 (7th Cir. 2015). A genuine dispute of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). The court must also take into account whether a party faces a heightened burden of proof when reaching this determination: in this case, Venture has the burden of establishing invalidity and inequitable conduct by clear and convincing evidence. See Hutchins v. Zoll Medical Corp. , 492 F.3d 1377, 1380 (Fed. Cir. 2007) (citing Anderson , 477 U.S. at 255, 106 S.Ct. 2505 ).

I. Venture's Motion

A. Invalidity

Venture seeks summary judgment of invalidity against numerous claims in Sunoco's patents based upon two pieces of prior art. First, Venture claims that the inventors sold a patented system to Equilon Enterprise LLC more than one year before they filed for the patents. (Brief in Supp. of Venture's SJ Mor. [370] ("Venture's SJ Br."), 1.) This alleged prior sale, Venture argues, invalidates the majority of the claims in the '302, '629, '948, and '548 Patents under 35 U.S.C. § 102(b). (Id. at 2.) Second, Venture claims that select portions of the '302 and '629 Patents are invalid for anticipation based on another system that Texon installed at a Kerr-McGee fuel terminal in the mid-1990s. (Id. at 1, 10-12.)

Patents are presumed valid. See 35 U.S.C. § 282(a). This presumption can only be overcome by clear and convincing evidence. Eli Lilly & Co. v. Barr Laboratories, Inc. , 251 F.3d 955, 962 (Fed. Cir. 2001). "Thus, a moving party seeking to invalidate a patent at summary judgment must submit such clear and convincing evidence of invalidity so that no reasonable jury could find otherwise." Id.

i. The Equilon Sale

Under 35 U.S.C. § 102(b), a patent is invalid if the invention was on sale in the United States more than one year prior to the patent's application date. The on-sale bar arises when the invention is (1) "the subject of a commercial offer for sale" before the critical date, and (2) "ready for patenting." Pfaff v. Wells Electronics, Inc. , 525 U.S. 55, 67, 119 S.Ct. 304, 142 L.Ed.2d 261 (1998). In addition, the device sold must "fully anticipate[ ] the claimed invention" or render it obvious. Allen Engineering Corp. v. Bartell Industries, Inc. , 299 F.3d 1336, 1352 (Fed. Cir. 2002). To meet the first prong of the Pfaff test, courts look to general principles of contract law. Hamilton Beach Brands, Inc. v. Sunbeam Products, Inc. , 726 F.3d 1370, 1375 (Fed. Cir. 2013). An invention is "ready for patenting" if it has been reduced to practice (i.e., made and working as intended) or "depicted in drawings or described in writings of sufficient nature to enable a person of ordinary skill in the art to practice the invention" prior to the critical date. Id.

Courts have long held that sales made "primarily for the purposes of experimentation" are not considered commercial sales and thus do not trigger the on-sale bar. Allen , 299 F.3d at 1352 ; see also Pfaff , 525 U.S. at 65-66, 119 S.Ct. 304 (citing City of Elizabeth v. American Nicholson Pavement Co. , 97 U.S. 126, 137, 7 Otto 126, 24 L.Ed. 1000 (1887) ). Permissible experimentation includes efforts to perfect the claimed features of the invention as well as features "inherent to" the invention-such as whether it will work as intended in its intended environment. Electromotive Div. of General Motors Corp. v. Transp. Systems Div. of General Electric Co. , 417 F.3d 1203, 1211 (Fed. Cir. 2005) (citing EZ Dock , 276 F.3d at 1352-53 ). To help courts determine whether a sale is experimental, the Federal Circuit has outlined a number of objective factors, including:

(1) the necessity for public testing; (2) the amount of control over the experiment retained by the inventor; (3) the nature of the invention; (4) the length of the test period; (5) whether payment was made; (6) whether there was a secrecy obligation; (7) whether records of the experiment were kept; (8) who conducted the experiment; (9) the degree of commercial exploitation during testing; (10) whether the invention reasonably requires evaluation under actual conditions of use; (11) whether testing was systematically performed; (12) whether the inventor continually monitored the invention during testing; and (13) the nature of the contacts made with potential customers.

Id. at 1213. Certain of these factors are generally considered dispositive-particularly inventor control and customer awareness of the experimentation. Id. at 1214-15.

The inventors filed the provisional application underlying all five of Sunoco's patents on February 9, 2001. ( L.R. 56.1 Statement of Material Facts in Supp. of Venture's SJ Mot. [371] ("Venture's SOF"), ¶ 3; '302 Patent.) This places the critical date for Section 102(b)'s purposes at February 9, 2000. On February 7, 2000-two days before the critical date-MCE Blending, a company run by the inventors, entered into a contract to sell and install an automated butane blending system at Equilon's Detroit terminal. (Venture's SOF ¶ 3.) In the contract, "MCE agree[d] to sell and Equilon agree[d] to purchase the Equipment [for automated butane blending] along with a license to use certain technology and software owned by MCE pertaining to the computerized blending of Butane and gasoline stocks, in consideration for the purchase and sale of Butane." (Equilon Contract § 1.01, Ex. 1 to Dodd. Decl. in Supp. of Venture's SJ Mot. [372-1] ("Dodd. Decl.").) The latter provision regarding the sale of butane involved an agreement by Equilon to purchase a minimum of 500,000 barrels of butane from MCE at set prices over roughly five years. (Id. at §§ 2.02-2.03, 3.02.)

Prior to entering into this contract, the inventors had worked with Equilon to install a manual tank blending system at the same Detroit terminal sometime in the mid-1990s. (Sunoco's Resp. to Venture's SOF and Additional Statement of Material Facts [387] ("Sunoco's SOAF"), Resp. to ¶ 3.) The inventors claim that they first conceived of the patented invention sometime in or before 1999, and it is not disputed that the system addressed in the February 7, 2000 contract was the first automated butane blending system the inventors made or sold. (See id. at Resp. to ¶¶ 3-4; Venture's SOF ¶ 4.) It is also undisputed that the inventors "reduced their invention to practice in or around September 2000 at Equilon's terminal in Detroit" while fulfilling their duties under the contract. (Sunoco's Resp. to Interrog. No. 3, Ex. 3 to Dodd. Decl. [372-3]; Sunoco's SOAF Resp. to ¶ 4.)

According to Venture, the Equilon sale meets all the requirements of the on-sale bar. Venture insists that the sale was commercial in nature "because any experimentation was intended to be done-and was actually done-prior to installation at Equilon's tank farm in Detroit and did not otherwise involve Equilon." (Venture's SJ Br. 2.) Venture further points to the portion of the contract regarding MCE's sale of a substantial amount of butane as further evidence that the transaction was primarily commercial. (Id. at 5.) Sunoco disagrees, asserting that "the Contract unambiguously reflects that the system design process was incomplete and still on-going" at the time of the sale, and that the inventors' primary purpose in executing the sale was "to experiment at an actual tank farm and determine whether their idea was capable of performing its intended purpose in its intended environment." (Sunoco's Opposition to Venture's SJ Mot. [386] ("Sunoco's Resp. Br."), 4 (internal citations omitted).)

The court is satisfied that Sunoco has demonstrated the requisite experimental intent to defeat application of the on-sale bar. Accordingly, the court can deny summary judgment on this basis alone, even though the parties also dispute whether the invention was ready for patenting and whether the Equilon system anticipates the patented invention. (See id. at 10; Venture's SJ Br. 6-10.)

As stated, the inventors had not yet reduced the system to practice before executing the contract. While this is not dispositive evidence of experimentation, it does support the conclusion that reduction to practice did not occur until a timeframe in which experimentation may occur. Cf. Allen , 299 F.3d at 1354 ("[O]nce an invention is reduced to practice, there can be no experimental use") (quoting EZ Dock , 276 F.3d at 1356-57 (Linn, J., concurring) ). Both inventors have testified that they did not know if their concept of a PLC-controlled blending system would work at the time and that they desired to "f[i]nd a customer that would give us the opportunity to try it." (5/10/16 Mattingly Dep. 21:20-22:6, 29:10-18, Ex. 39 to Andrew M. Gross Decl. in Supp of Mot. for Misc. Relief [278-33] ("Gross Decl."); see also 5/25/16 Vanderbur Dep. 127:19-23, Ex. 30 to Gross Decl. [278-26].) Larry Mattingly explained that he and Vanderbur approached Equilon because of their preexisting relationship with tank blending systems (5/10/16 Mattingly Dep. 31:6-22)-the essence of MCE's proposal being "to install the equipment and to sell it to them if the equipment worked ." (Id. at 82:12-20 (emphasis added).) Steven Vanderbur stated plainly: "Equilon was the test case for our automated butane blending system." (5/25/16 Vanderbur Dep. 29:6-7.)

Venture argues that "[t]he inventors' self-serving testimony" on the issue of experimentation is not sufficient to prevent summary judgment. (Venture's SJ Br. 4 (citing Petrolite Corp. v. Baker Hughes Inc. , 96 F.3d 1423, 1427 (Fed. Cir. 1996).). Indeed, the inventors' subjective intent is of minimal importance, see Petrolite , 96 F.3d at 1427, but the objective evidence also weighs heavily in Sunoco's favor. The contract discusses several rounds of testing to be conducted by MCE: pre-installation testing at an unspecified (presumably off-site) location and post-installation testing at Equilon's terminal. (Equilon Contract § 1.10(a) (pre-installation) and § 1.10(b) (post-installation).) If the proposed system failed to meet MCE's expectations (tellingly, Equilon's expectations appear to be irrelevant), MCE had the right to unilaterally terminate the agreement, and the obligation to remove any then-installed equipment from Equilon's terminal at its own expense. (Id. ) MCE maintained full ownership and title over the system until both rounds of testing were completed to MCE's satisfaction and MCE was able to train Equilon's employees in the safe and proper use of the system. (Id. at § 1.04 ("At such time, MCE shall execute a bill of sale ... to effectuate the conveyance of ownership of the Equipment to Equilon.").) As noted earlier, it is undisputed that MCE's installation, testing, and training was not completed until September 2000-well after the critical date. (See Sunoco's SOAF Resp. to ¶ 4; 5/10/16 Mattingly Dep. 174:4-25 (stating that Mattingly spent three to five days conducting on-site testing in Detroit in September 2000).)

Notably, the contract did not require Equilon to pay MCE anything in exchange for the system in the normal course of events. MCE was to bear all expected costs of the system's design and installation, up to $450,000. (Id. at § 1.02.) In the event the system cost more than expected, the parties agreed to reach "a mutually agreeable arrangement for funding any [excess] cost[.]" (Id. ) Equilon was required to bear the costs relating to any additional requirements it imposed on the project, but, again, only if those costs surpassed the $450,000 threshold. (Id. ) Even then, however, MCE bore all the risk: if the parties failed to reach a mutually agreeable funding arrangement for excess costs, either side had the right to terminate the contract, but MCE would still be required to remove all previously-installed "at its own cost and expense." (Id. )

These provisions touch upon many of the Federal Circuit's enumerated factors, and strongly signal the presence of the two most important objective factors: inventor control and customer awareness. Electromotive , 417 F.3d at 1214-15. Further contractual provisions simply underline the point. MCE was responsible for maintaining insurance for itself and Equilon during the system's development and installation. (Equilon Contract § 1.09.) MCE also promised to indemnify Equilon for any claims arising from MCE's work on the project. (Id. at § 1.12.) Both parties were under a strict duty of confidentiality for five years. (Id. at § 3.01, Schedule 3.01.) Finally, MCE warranted that the system would "be fit for the purpose of blending [b]utane into gasoline products in compliance with all applicable laws" upon transfer of title-which, again, would occur only after several rounds of testing to determine whether it was capable of operating as intended. (Id. at § 1.05.)

Venture disagrees with this assessment of the contract and claims that only one round of off-site testing was contemplated in the contract. (Venture's SJ Br. 3-5.) This argument is as irrelevant as it is inaccurate. Venture presents evidence, in the form of an e-mail from Mattingly to Equilon employee Joe Ahern, to show that MCE conducted pre-installation testing with another company called Wheatland Systems in Kansas. (E-mail from Larry Mattingly to Joe Ahern of 4/19/00, Ex. 4 to Dodd Decl. [372-4].) Venture believes it is important that Equilon was not involved with this round of testing, claiming without any legal support that "the [experimental sale] doctrine has no application as matter of law because the inventors never intended to conduct any experimentation with Equilon or at Equilon's terminal in Detroit." (Venture's SJ Br. 3.) This same e-mail, however, explicitly states that said testing was not completed to MCE's satisfaction until April 14, 2000-two months after the critical date. (Id. ) It also provides ample evidence of the inventor's experimental intent and Equilon's awareness of that intent as it related to the exact system Equilon was due to receive. Even if this were the only testing involved with the system's design and installation, it would reflect the inventors' need to experiment with their invention to determine whether it would work as intended as of the moment they offered the system to Equilon. The experimental sale doctrine would be worthless if successful experiments occurring after the critical date retroactively invalidated sales made for the purposes of experimentation before the critical date. See Robotic Vision Systems, Inc. v. View Engineering, Inc. , 112 F.3d 1163, 1167 (Fed. Cir. 1997) ("[S]ubsequent completion of an invention after the critical date does not relate back to the date of an earlier alleged offer of sale."); see also In re Ceccarelli , 401 Fed. Appx. 553, 554-55 (Fed. Cir. 2010) (holding that an experimental sale cannot be recategorized as a commercial sale by a subsequent reduction to practice even if that reduction to practice occurred before the critical date). For this same reason, the court rejects Venture's attempts to divide the invention into component parts that may have been tested in one location, but not another. (See Venture's SJ Br. 6.) It does not matter if the inventors tested their system's ability to communicate with the Grabner vapor pressure analyzer only at Wheatland and not at Equilon's terminal. All of MCE's testing occurred after the critical date, and all of the testing was aimed at determining whether the automated butane blending system was capable of performing as intended. See Electromotive , 417 F.3d at 1211.

Further, the contract explicitly states that pre-installation testing with Wheatland was not the only experimentation involved with the Equilon sale. Section § 1.10(b) of the contract states that MCE

would conduct post-installation testing at Equilon's Detroit terminal. Venture, for its part, attempts to minimize this post-installation testing as mere "[c]onfirming" and "verifying," not actual "experimentation." (Venture's SJ Br. 5.) These other terms do indeed appear among a long checklist of MCE's anticipated post-installation tests (see Equilon Contract Schedule 1.10), but Venture cites no authority for the notion that these terms are obviously distinguishable from permissible experimentation. Nor does Venture make any effort to show how the various "confirmations" and "verifications" listed would not be integral to MCE's efforts to build a working automated butane blending system for the first time. (See id. (stating that MCE's on-site testing would include, for example, "[v]erify[ing] that the system is injecting the proper amount of butane" and "[v]erify[ing] that date-dependent blend parameters and controls change appropriately").) Venture attempts to bolster its claim by again citing to the April 2000 e-mail to argue that, though the contract mentioned post-installation testing, Mattingly admitted that no further experimentation was required after the Wheatland tests. (E-mail from Larry Mattingly to Joe Ahern of 4/19/00.) Again, however, Venture misreads the relevant evidence. In his e-mail to Equilon's Ahern, Mattingly said that he was satisfied that the pre-installation testing at Wheatland "me[t] the minimum standards" described in Section 1.10(a) and informed Ahern that he was ready to progress with the installation rather than cancelling the contract. (Id. ) The e-mail said nothing about the quite separate requirements of Section 1.10(b) and the post-installation testing that needed to occur before MCE would be willing to transfer ownership of the system to Equilon. Contrary to Venture's assertions, the e-mail does not "indicate[ ] that no experimentation was needed at Equilon." (Venture's SJ Br. 5.) Overall, the contract and the tests outlined on the attached checklist describe the exact the sort of experimentation needed "to bring [an] invention to perfection, or to ascertain whether it will answer the purpose intended," Elizabeth , 97 U.S. at 137, 7 Otto 126 -namely, the automated blending of butane with gasoline at a point immediately prior to distribution.

As a final effort to paint the Equilon sale as a commercial, rather than experimental, endeavor, Venture argues that the contractual provisions relating to the sale of 500,000 barrels of butane makes the sale primarily commercial as a matter of law. (Venture's SJ Br. 5-6.) Venture cites to numerous cases for the proposition that "commercial transactions of this volume cannot give rise to 'experimental use.' " (Id. (stating that 500,000 barrels equals 21 million gallons: "enough butane to fill over one million cars even if no gasoline were added").) This is an attractive argument, but Venture misses the mark on a critical point: butane is not the invention. See Helsinn Healthcare S.A. v. Teva Pharm. USA, Inc. , 855 F.3d 1356, 1366 (Fed. Cir. 2017) ("... the offer or contract for sale must unambiguously place the invention on sale, as defined by the patent's claims") (emphasis in original). All the cases Venture cites involve high-volume sales of the invention itself . See, e.g., Merck & Cie v. Watson Labs., Inc. , 822 F.3d 1347, 1355 (Fed. Cir. 2016) (stating that an offer to sell 62,500,000 doses of a dietary supplement could not be considered experimental); Atlanta Attachment Co. v. Leggett & Platt, Inc. , 516 F.3d 1361, 1366 (Fed. Cir. 2008) ("An offer to mass produce production models [i.e., the invention ] does not square with experimentation[.]"). MCE sold just one blending system before the critical date. It would not sell another until May 20, 2002-after the patent application's filing date. This next sale, to a company called Buckeye Terminals, LLC, in Hartsdale, Indiana, does not contain any of the detailed testing, revocation, or transfer of title conditions from the Equilon contract, and, most notably, calls for the customer to pay MCE for the equipment and installation instead of handing it over for free. (See generally Buckeye Construction Contract, Ex. I to Krill Decl. in Supp. of Sunoco's Resp. to Venture's SJ Mot. [327-3] ("Krill Decl.").)

The experimental nature of MCE's sale of the blending system to Equilon survives scrutiny even if the court rephrases Venture's objection as being that the volume of butane somehow "overwhelms" the rest of the agreement. The Equilon contract has two distinct sections: the installation of the butane blending system, and the butane supply agreement. The contract also provides the parties with numerous opportunities to cancel the entire agreement depending on the outcome of the installation. (See Equilon Contract §§ 1.02, 1.04, 1.10.) No such provisions appear in the butane supply section. The apparent effect of this asymmetry is to render the butane supply portions of the agreement conditional on the successful design and installation of inventors' experimental system. (See Sunoco's Resp. Br. 6 ("Equilon would purchase butane if, and only if, the post-critical date testing was successful.").) Looking to the agreement as a whole, it is clear that MCE used the offer to supply butane as a means of enticing Equilon to permit MCE to use one of Equilon's terminals as a testing ground for a new blending system-something entirely consistent with a primarily experimental intent. (Equilon Contract § 1.01 (stating that the purchase and sale of butane is the consideration for the design and installation of the experimental blending system).)

The Federal Circuit has consistently recognized that multi-stage contracts which anticipate future business, such as this one, may nevertheless be driven by an experimental purpose. In Monon Corp. v. Stoughton Trailers, Inc. , 239 F.3d 1253 (Fed. Cir. 2001), the Federal Circuit reversed the district court's grant of summary judgment of invalidity where a transportation company purchased one prototype trailer from a patentee "with the intention of purchasing an additional 300 once the trailer's durability had been proven in actual, normal use[.]" Id. at 1256. The district court had viewed the sale as a "marketing ploy" to secure future sales to that same customer, but the Federal Circuit disagreed, concluding that the evidence disputed the district court's characterization even though the customer was ultimately required to pay for using the trailer during the trial period. Id. at 1260-61. The Federal Circuit ruled similarly in Honeywell International, Inc. v. Universal Avionics Systems Corp. , 488 F.3d 982 (Fed. Cir. 2007) -a dispute over a patented "terrain warning system" for use in airplanes. Id. at 987. There, the court upheld the district court's finding of experimental use despite evidence that Honeywell proposed future commercial sales of its invention conditioned on successful experimentation. Id. at 996-97. These conditional offers, the court held, did not defeat a finding of experimental intent:

These human factor and cockpit integration tests were a part of Honeywell's program to determine that the invention worked for its intended purpose. If, and only if, these tests were successful, Honeywell proposed commercial terms for the supply of 100 new systems to replace the GPWS systems. If the tests were not successful, Honeywell proposed to supply its GPWS systems instead. Beyond these experimental programs, Honeywell did not offer its inventive system to any other customer until well after the critical date. The record also shows, often in the form of internal corporate communications, that Honeywell did not refer to the new system as ready for sale. Thus, the record consistently shows that Honeywell's negotiations and proposals before the critical date evinced a purpose of experimentation[.]

Id. (emphasis added). Of course, "[e]ven free distribution of a prototype may raise the on-sale bar if is done to solicit a sale," Intel Corp. v. U.S. Intern. Trade Com'n , 946 F.2d 821, 830 (Fed. Cir. 1991), but the evidence is clear that MCE did not seek to make any future sales of its invention to Equilon after the testing period. The butane supply agreement does not obviously negate the objective evidence of experimental intent with respect to the automated butane blending system. Its inclusion in the Equilon contract does make the inquiry more challenging than if the parties entered into two separate contracts, but a commercial motivation with respect to the auxiliary goods or services which accompany an experimental sale do not necessarily taint the transaction as a whole. See TP Laboratories, Inc. v. Professional Positioners, Inc. , 724 F.2d 965, 968-73 (Fed. Cir. 1984) (concluding that an orthodontic device was not on-sale when the orthodontist tested it on three patients before the critical date, did not charge the patients for the device, but did"follow its regular practice of setting a fixed total fee for professional services, which included necessary appliances"); Barry v. Medtronic, Inc. , 230 F.Supp.3d 630, 656-67 (E.D. Tex. 2017) (upholding the jury's finding that no commercial sale occurred for experimental surgeries when the patients were billed for hospital overhead and the staffs' typical wages but not "for the inventive concept of the surgery"). As has been long established, even benefits arising from the use or sale of the invention itself are permissible so long as they are "incidental to the primary purpose of experimentation." EZ Dock , 276 F.3d at 1357 (Linn, J., concurring); see also Elizabeth , 97 U.S. at 135, 7 Otto 126 ("Whilst the supposed machine is in such experimental use, the public may be incidentally deriving a benefit from it").

Venture's motion for summary judgment of invalidity based on the Equilon sale is denied.

ii. The Kerr-McGee Prior Art System

Next, Venture claims that the "inventors sold and installed a [butane] blending system at Kerr-McGee's facility in Nashville in the mid-1990s that invalidates many claims"-specifically, claims 1-3, 12-13, and 36-40 of the '302 Patent ; and claims 1-2, 5-6, and 10-14 of the '629 Patent. (Venture's SJ Br. 1; Venture's SJ Mot. 1.) Venture argues that the Kerr-McGee system is prior art under 35 U.S.C. § 102(b) (publicly used or on-sale) and § 102(g) (invented by another without abandonment, suppression, or concealment) because it was sold and publicly used as early as 1994 and was not confidential. (Venture's SJ Br. 10-11.) Venture does not elaborate on how the Kerr-McGee system meets the requirements of Sections 102(b) or (g), but Sunoco largely concedes the point. (See id. ; Sunoco's SJ Resp. 1, 13. But see Sunoco's SOAF Resp. to ¶¶ 23, 24 (stating that Texon only sold "components for a system," and generally denying Venture's claims for lack of knowledge).) Instead, Sunoco focuses on whether the Kerr-McGee system actually anticipates the claims in question. Sunoco argues that summary judgment is inappropriate with respect to most of the claims mentioned because Sunoco is no longer asserting those claims against Venture. (Sunoco's SJ Resp. 1 n.1.) As for the dependent claims that Venture discusses in detail, Sunoco argues that summary judgment is inappropriate because the undisputed evidence shows that the Kerr-McGee system was a "manual blendingsystem"

in which "a human operator generated the blend ratio" rather than the "process control unit" required by the patents' claims. (Id. at 1.)

Before ruling on this issue, however, the court pauses to address Sunoco's jurisdictional arguments. On September 11, 2017, in the middle of briefing for the parties' previous summary judgment motions, Sunoco filed an amended notice of its asserted claims which dramatically reduced the number of claims at issue in this case. (See Sunoco's Notice of Currently Asserted Claims [251] ("Sunoco's Claim Notice"), 1 (reducing Sunoco's asserted claims from 116 to just 33).) Of the nineteen claims Venture asserts are anticipated by the Kerr-McGee system, only dependent claims 2 and 3 in the '302 Patent and 2 and 12 in the '629 Patent are still asserted against Venture. (Sunoco's SJ Resp. 1, 13.) Venture's present summary judgment motion nevertheless seeks to invalidate many of the no-longer-asserted claims. Sunoco argues that the court must dismiss all of Venture's counterclaims against non-asserted patent claims for lack of jurisdiction because "there is no longer a live case or controversy regarding them." (See id. at 1 n.1; Sunoco's Claim Notice 6-8.)

The court agrees with Sunoco, but only in part. "It is well-established that, in patent cases, the existence of a case or controversy must be evaluated on a claim-by-claim basis." Streck, Inc. v. Research & Diagnostic Systems, Inc. , 665 F.3d 1269, 1281 (Fed. Cir. 2012) (internal citation and quotation marks omitted). A party seeking a declaratory judgment bears the burden of establishing that jurisdiction exists "at all stages of review." Id. at 1282 (quoting MedImmune, Inc. v. Genentech, Inc. , 549 U.S. 118, 127, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) ). Accordingly, "a counterclaimant must show a continuing case or controversy with respect to withdrawn or otherwise unasserted claims." Id. at 1283. The court also recognizes the clear precedent set by the Federal Circuit in Honeywell , however, which held that an actual case or controversy still exists when a counterclaimant seeks to invalidate independent claims that were withdrawn by the patentee, but the patentee continues to assert the dependent claims which rely on those independent claims. 488 F.3d at 995-96 ("[I]nfringement of a dependent claim also entails infringement of its associated independent claim."); see also Sunoco SJ Opinion I , 2017 WL 4283946, at *2 n.3 (citing Honeywell and stating that Sunoco's decision to withdraw the independent claims would not have a material effect on the case). That is the situation here. The remaining claims are all dependent claims, and Venture specifically identifies the withdrawn independent claims as appropriate for continued jurisdiction because of their relationship to the asserted dependent claims. And although Sunoco argues for a broader dismissal order in its brief opposing summary judgment (see Sunoco's SJ Br. 13, n.21), it, too, recognized the relevancy of the underlying independent claims in its notice of asserted claims: specifically, '302 Patent claim 1, and '629 Patent claims 1, 10, and 11. (Sunoco's Claim Notice 3.) Conversely, although Venture halfheartedly argues for the inclusion of all the previously-asserted claims, the only ones discussed in any detail in Venture's brief supporting summary judgment are the dependent claims still asserted against Venture and their related independent claims. Based on the applicable case law, the court concludes that an actual case or controversy exists for claims 1-3 of the '302 Patent, and claims 1, 2, 10-12 of the '629 Patent. Venture's invalidity counterclaims with respect to the remaining claims in the '302 and '629 Patent are dismissed for lack of jurisdiction.

a. The Independent Claims

The parties again start their arguments by discussing issues of waiver. Venture believes that summary judgment of invalidity is appropriate with respect to several of the independent claims in the two patents ( '302 Patent claim 1; '629 Patent claims 1 and 10) because "Sunoco's technical expert (Norman Goddard) does not dispute that these claims are anticipated." (Venture's SJ Br. 11.) Although it is true that Goddard's validity report does not address these claims, Sunoco explains that this is because they are among the claims that Sunoco no longer asserts against Venture. (See Sunoco's Notice of Currently Asserted Claims [251], 3-4.) Further, Goddard's report specifically stated that he was addressing only asserted claims, and that he "reserve[d] the right to provide an opinion as to the validity of any other claim ... should such request be made of me in the future." (Goddard Rebuttal Report on Validity, Ex. 26 to Gross Decl. [278-22], ¶¶ 3-7.) Evidently anticipating such a response, Venture argues that, because these independent claims are the basis for asserted dependent claims, Goddard should have included them in his validity report "if [he] truly disputed [them]." (Venture's SJ Br. 11.)

The court declines to hold Goddard's failure to address the independent claims in his rebuttal report against Sunoco. As previously stated, this court has little interest in sifting through the parties' never-ending stream of arguments based on questionable waivers or defaults, and is disinclined to grant summary judgment on this basis alone. In addition, the record shows that Goddard did address whether the independent claims were anticipated during his deposition (see Sunoco's Resp. Br. 13 n.21), so the court may look to the substance of his testimony (and the other evidence cited in Sunoco's statement of additional material facts) to evaluate the merits of each side's argument.

In light of this evidence, the court is satisfied that summary judgment of invalidity is warranted with respect to the aforementioned independent claims of the '302 and '649 Patents. It is clear to the court that no genuine dispute of material fact still exists as to whether the Kerr-McGee system anticipates the independent claims-it does. Claim 1 of the '302 Patent is representative of the disputed independent claims, and reads in relevant part: "A system for blending butane and gasoline at a tank farm comprising: a) a tank of gasoline; b) a tank of butane; c) a blending unit ...; d) a dispensing unit ...; and e) a rack, wherein the dispensing unit is located ...[.]" Of these limitations, the parties only dispute whether the Kerr-McGee system included a "tank of gasoline." A schematic of the Kerr-McGee system is shown below:

(Kerr-McGee Operating & Procedures Manual § 5, Ex. 34 to Dodd Decl. [368-7].) As shown in the schematic, the butane originated in a "butane storage tank" and the gasoline (labeled "Product A") started in a "pipeline." The parties agree that the Kerr-McGee system also sourced its gasoline from a barge docked somewhere near the terminal. (Sunoco's SOAF Resp. to ¶¶ 25-29.) Venture claims that the barge and the required "tank of gasoline" amount to the same thing. (See Venture's SOF ¶¶ 28-29; Rys Report on Invalidity ¶ 133, Ex. 10 to Dodd Decl. [372-9].) Indeed, inventor Vanderbur stated as much at his deposition when he described the barge as containing several compartments-or "[a] tank of some type"-filled with gasoline that would then be pumped into the Kerr-McGee system. (76/20/17 Vanderbur Dep. 374:18-25, Ex. 17 to Dodd Decl. [372-13].) Sunoco's own expert, Goddard, testified similarly when asked whether the barge had a tank on it: "Okay. The barge is-actually is a tank. They're just metal boxes with covers on them. Well, you know, sealed covers so you don't have ... VOCs [i.e., volatile compounds] coming out the top of it, and then you have a tug pushing it around." (9/27/17 Goddard Dep. 296:16-297:2, Ex. 21 to Gross Decl. [278-20].) Sunoco concedes that Vanderbur and Goddard made these statements, but denies that either man ever admitted that "a barge with a tank" (of gasoline) was the same as a "tank of gasoline." Sunoco points to Goddard's statement that "you can classify a barge as a transportation system for moving gasoline" as evidence of his true thoughts on barge-sourced gasoline (id. at 297:5-7), but there is no reason that a barge cannot simultaneously be both a container (or "tank") and a vehicle for transport.

Sunoco also cites to the '302 Patent's specification in an effort to exclude barges with tanks from the claimed language:

The term "tank farm" is meant to encompass any facility that contains a number of large storage tanks for petroleum products, from which petroleum tanker trucks are filled. Such facilities typically contain multiple storage tanks that separately contain various types and grades of gasoline, including reformulated gasoline as that term is typically used in the gasoline business, and the various grades of reformulated gasoline....

The tanks often hold in excess of 500,000 gallons of petroleum product, and are surrounded by berms to capture any petroleum spills. Such facilities typically receive their petroleum products from petroleum pipelines that consolidate refined petroleum products from a number of refinery trunk lines, although tank farms can also be supplied only from one refinery, or from a coastal or freshwater port that receives refined petroleum products by boat. As used herein, the term "tank farm" only includes tank farms that distribute petroleum products to petroleum tanker trucks.

'302 Patent col. 4 l. 58-col. 5 l. 15. Sunoco appears to believe this language establishes that "barges with tanks" do not fall within the scope of a "tank of gasoline" at tank farm. The court does not so interpret this language, or any other specification, in this way. The specification itself mentions that tank farms may be supplied from a "port that receives refined petroleum products by boat." Id. Venture's view also comports with the parties' agreed construction of "tank farm" as "[a]ny facility that contains a number of large storage tanks for petroleum products received from a refinery and distributed to tanker trucks." Sunoco Markman Opinion , 2017 WL 1550188, at *20. If a barge docks directly at a tank farm and supplies gasoline to the farm's blending system from its onboard tanks, then that simply cuts out the middle step of transferring the gasoline from the port to the tank farm to be held in yet another holding tank. Common sense would lead any reasonable juror to conclude that a tank of gasoline is a tank of gasoline, whether afloat or on dry land. Venture's motion for summary judgment of invalidity of '302 Patent claim 1 and '629 Patent claims 1 and 10 is granted.

b. The Dependent Claims

Venture claims the "Kerr-McGee system also anticipates the dependent claims of the '302 and '629 patents that recite generating a 'blend ratio' based on a 'desired vapor pressure' and the claims that require a 'process control unit' to do so." (Venture's SJ Br. 12.) As stated above, the remaining dependent claims at issue are '302 Patent claims 2-3 and '629 Patent claims 2, 11-12. Claim 2 in both patents, as well as claim 11 in the '629 Patent, are all roughly identical and add an additional component to the aforementioned blending system described in the independent claims (gas tank, butane tank, blending unit, dispensing unit, rack): a "process control unit" that "generates a ratio input signal that controls the ratio of butane and gasoline blended by the blending unit." The other two claims, '302 Patent claim 3 and '629 Patent claim 12, are themselves dependent on claims that require a process control unit to generate a ratio input signal, "wherein the ratio input signal is derived from a calculation of the ratio of butane and gasoline that will yield a desired vapor pressure."

It is undisputed that in the Kerr-McGee system, a human operator was responsible for taking samples of the unblended gasoline using a portable analyzer, using the vapor pressure reading to look up the appropriate blend ratio in a table of calculations, and then entering that blend ratio into an operator interface. (Sunoco's SOAF Resp. to ¶¶ 31-33.) The interface then sent a signal to a programmable logic controller (or "PLC", labeled as the "controller" on the Kerr-McGee schematic), which controlled the valves in the blending unit to mix the correct amount of butane and gasoline. (Id. at ¶¶ 33-34.) The parties' sole area of disagreement is over the extent to which the PLC "generates" the ratio input signal. Sunoco argues that the human element of the Kerr-McGee system is enough to deny summary judgment: "a human operator manually determined the blend ratio and manually inputted the blend ratio into a blend controller ... which adjusted a valve to achieve that blend ratio. Hence, the human operator-not a 'process control unit'-generated the blend ratio." (Sunoco's Resp. Br. 13.) Venture, meanwhile, argues that the claims "do[ ] not require that the process control unit calculate or create the desired blend ratio; the claim merely requires that it "generates a ratio input signal.' " (Venture's SJ Br. 14 (emphasis in original).)

Venture's creative underlining aside, this court is not convinced that the case is so clear-cut. The word "generates" modifies the entire phrase "ratio input signal," not just "signal." As Sunoco points out, generate means "to bring into existence." (Sunoco's Resp. Br. 14 (quoting Merriam-Webster's Collegiate Dictionary (10th ed., 1997).) This suggests that the process control unit must "bring into existence" the entire ratio input signal, not just a signal containing ratio information received from an external source. See also '302 Patent claim 3 (similarly stating that the radio input signal itself must be "derived from a calculation of the ratio of butane and gasoline"). This battle over content versus transmission is extremely narrow, but important. To illustrate, imagine a hypothetical patent for software that "generates an e-mail." This act has two components: writing the e-mail and sending the e-mail. Applied to this context, Venture's argument would be that software that merely sends an e-mail written by human hands is one that "generates an e-mail." Sunoco's argument is that the patent as a whole clearly requires the software to both write and send the e-mail.

While a reasonable jury might conclude that it is enough that the Kerr-McGee system's PLC generated a "signal" that contained a blend ratio determined and entered by a human, Sunoco's contrary interpretation is just as, if not more, reasonable. The patents' specification, for example, describes a preferred embodiment of the invention in which:

[A] process control unit [ ] dictates and controls the ratio at which butane and gasoline are blended based upon the prescribed vapor pressure. The process control unit receives measurements of the vapor pressure of the butane and gasoline, and from those measurements calculates the ratio at which the butane and gasoline should be blended to achieve the prescribed vapor pressure. Based upon those calculations, the process control unit emits a ratio input signal that controls the ratio of butane and gasoline blended by the blending unit.

'302 Patent col. 6 ll. 12-21. In addition, Venture's efforts to paint Sunoco's witnesses as having conceded the point are misplaced: although they all admitted that the Kerr-McGee system's PLC generated the signal , they uniformly denied that the PLC generated the calculation as well. (See, e.g., Benavides Decl. ¶ 10, Ex. 32 to Gross Decl. [278-28] ("The [PLC] signaled a butane control valve to open or close and thereby adjusted the flow rate of the butane stream to the manually preset blend ratio .") (emphasis added).) Finally, this court's earlier Markman opinion bolsters Sunoco's position that the claimed process control unit must be responsible for generating the ratio input signal from scratch. In constructing the term "blending unit" as used in claim 1 of the '302 Patent, the court held that the blending unit did not have to be "capable of performing the calculation to create a blend ratio" because other claims-the ones at issue here-specifically "reference[d] an automatically calculated blend ratio" made by a process control unit. Sunoco Markman Opinion , 2017 WL 1550188, at *13. This court also addressed the potential for a human operator directly:

Many parts of the specification and the claims themselves appear to contemplate the patented system operating without a processing unit; Sunoco urges that this must mean that the blending unit is doing the controlling. The alternative, however, is not a self-regulating blending unit that contradicts the express definition in the specification, but a human operator. Though this would not be the ideal version of the invention, it would be a functional version of Claim 1 that is consistent with the specification.

Id. at *15. Although the court did not need to elaborate on the claims reciting a process control unit in its claim construction opinion, the inverse of this passage is also likely true: the variants of Sunoco's invention that do feature a process control unit do not allow for human-created blend ratios or "ratio input signals."

As Venture has failed to show that there are no genuine disputes of material fact with respect to these claims, summary judgment is denied.

B. Non-Infringement

Venture next seeks summary judgment of non-infringement on certain claims in the '302, '629, '671, and '948 patents. A determination of patent infringement involves a two-step inquiry. "The court must first interpret the claims to determine their scope and meaning. It must then compare the properly construed claims to the allegedly infringing device." Dynacore Holdings Corp. v. U.S. Phillips Corp. , 363 F.3d 1263, 1273 (Fed. Cir. 2004) (citation omitted). The first step of this inquiry is a legal determination. The second step is primarily factual, though to support a verdict of infringement the accused device must satisfy every limitation in the asserted claims, either literally or under the doctrine of equivalents. Freedman Seating Co. v. American Seating Co. , 420 F.3d 1350, 1356 (Fed. Cir. 2005). "[A]lthough equivalence is a factual matter normally reserved for a factfinder, the trial court should grant summary judgment in any case where no reasonable factfinder could find equivalence." TechSearch, LLC v. Intel Corp. , 286 F.3d 1360, 1371 (Fed. Cir. 2002).

i. '302 patent claim 17; '629 patent claims 17 and 31; '948 patent claims 1 and 7

U.S. Venture first argues that its systems do not "transmit" or "provide" a signal or instruction to a programmable logic controller (PLC), and therefore do not infringe claim 17 of the '302 patent, claims 17 and 31 of the '629 patent, or claims 1 and 7 of the '948 patent. (Venture's SJ Brief 14.) Each of the relevant claims in the '302 and '629 patents requires the step of "transmitting" either a "signal" or "instruction" to a "programmable logic control" or "programmable logic controller."

The relevant claims in the '948 patent require a "processor programmed to ... provide a control signal to [a] programmable logic controller[.]" U.S. Venture does not deny that its systems include the requisite processors, signals or instructions, and programmable logic controllers. Instead, the company argues that its signals and/or instructions originate (or are programmed to originate) "within" the programmable logic control(ler) itself, and therefore are not "transmitted or provided to the PLC." (Id. )

The Federal Circuit considered a similar argument in NTP, Inc. v. Research in Motion, Ltd. , 418 F.3d 1282 (Fed. Cir. 2005), abrogated on other grounds , Iris Corp. v. Japan Airlines Corp. , 769 F.3d 1359, 1361 n.1 (Fed. Cir. 2014). The patents at issue in that case "relate[d] to systems for integrating existing electronic mail systems ... with radio frequency ('RF') wireless communication networks, to enable a mobile user to receive email over a wireless network." NTP , 418 F.3d at 1287. Certain claims in the patents required, inter alia , that an "RF receiver ... transfer[ ] the originated information to the at least one of the plurality of destination processors." Id. at 1310. The defendant argued that the RF receiver and destination processor would have to be "separately housed" in order for "information" to be "transferred" from one to the other. Id. The court rejected this argument because neither the patent specifications nor the plain and ordinary meaning of the claim language required it. "[A] 'transfer' of information can equally occur between two entities that are physically housed together," the court explained. Id.

Sunoco does not suggest that U.S. Ventures' signals and/or instructions originate "outside" the company's programmable logic controllers. Instead, Sunoco argues that NTP forecloses U.S. Venture's argument that this is what the claims require. The court agrees. Neither party requested a claim construction on the relevant terms, which suggests that they themselves believe that the plain and ordinary meaning should apply. And the plain and ordinary meanings of the relevant terms-"processor," " transmit," " provide," "signal," "instruction," "to," and "programmable logic controller"-do not require that signals or instructions being transmitted from a processor to a programmable logic controller originate "outside" the programmable logic controller. A reasonable jury could find that signals or instructions originating from a processor "within" a programmable logic controller are "transmitted to" that controller, so U.S. Venture's motion for summary judgment of non-infringement is denied with regard to claim 17 of the '302 patent, claims 17 and 31 of the '629 patent, and claims 1 and 7 of the '948 patent.

ii. '671 patent claim 1

U.S. Venture also argues that its systems do not infringe claim 1 of the '671 patent. (Venture's SJ Brief 15.) That claim recites, in relevant part:

1. A method for in-line blending of gasoline and butane comprising:

a) providing a continuously flowing gasoline stream that comprises:

i) a plurality of batches of different gasoline types...;

b) providing an allowable vapor pressure;

c) providing a butane stream that comprises a butane vapor pressure;

d) periodically determining said gasoline vapor pressure;

e) periodically determining said gasoline flow rate;

f) calculating a blend ratio based upon said butane vapor pressure, said gasoline vapor pressure, and said allowable vapor pressure; and

g) blending said butane stream and said gasoline stream at a blending unit at said blend ratio to provide a blended gasoline stream having a blended vapor pressure less than or equal to said allowable vapor pressure.

( '671 Patent, col. 15 ll. 56-67.) The parties agree that U.S. Venture's Green Bay, Madison South, Fort Worth, Bettendorf, and Houston systems are connected to a gasoline pipeline and blend butane into gasoline received from the pipeline. (Venture's Resp. to Sunoco's SOAF ¶ 9.) The parties also agree that these systems are capable of being operated by at least four different pieces of "source code," three of which U.S. Venture obtained from Technics (referred to in this round of briefs as Technics' "Original," "First Pass Only," and "Not First Pass" code, respectively), and one of which U.S. Venture wrote itself. (See U.S. Venture's 2017 SOF [197], at ¶13; Venture's Mot. 15-17; Sunoco's Mot. 16-18.) U.S. Venture now argues that the systems using the "Original," "Not First Pass," and U.S. Venture versions of the source code did not "periodically determine[ ] ... gasoline vapor pressure," as step (d) of claim 1 requires, and that the systems using the "Original" and "First Pass Only" versions of the source code did not "provid[e] a continuously flowing stream of gasoline," as step (a) requires. (Venture's Mot. 15-18.)

U.S. Venture first suggests that there is no evidence that sys