I.E.E. International Electronics & Engineering, S.A. v. TK Holdings Inc. (54 F. Supp. 3d 776, 2014)

OPINION AND ORDER REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT

GERALD E. ROSEN, Chief Judge.

I. INTRODUCTION

Plaintiffs I.E.E. International Electronics & Engineering, S.A. and IEE Sensing, Inc. (collectively “IEE” or “Plaintiffs”) commenced this action in this Court in September of 2010, alleging that Defendants TK Holdings Inc. (“TKH”)' and Ta-kata A.G. (“TKAG”) have infringed one or more claims of a patent owned by Plaintiffs, U.S. Patent No. 7,656,169 (the “'169 Patent”), and also seeking declarations that Plaintiffs have not infringed certain patents owned by Defendant TKH — ie., U.S. Patent No. 6,577, 023 (the “'023 Patent”), U.S. Patent No. 6,825,765 (the “'765 Patent”), U.S. Patent No. 7,180,306 (the “'306 Patent”), and U.S. Patent No. 7,098, 674 (the “'674 Patent”) — or, alternatively, that TKH’s patents are invalid on one or more grounds. Defendants, in turn, have filed counterclaims against Plaintiffs, alleging that Plaintiffs have infringed one or more claims of the '023 Patent, the '765 Patent, the '674 Patent, and the '306 Patent, and seeking declarations that Defendants have not infringed the '169 Patent or, alternatively, that this patent is invalid on a number of grounds. This Court’s subject matter jurisdiction over this case rests upon the parties’ assertion of ■claims arising under federal patent law. See 28 U.S.C. § 1338(a).

Through the present cross-motions, each of the parties in this case seeks an award of summary judgment in its favor on one or more of the claims it has asserted and/or the claims asserted against it. First, Plaintiffs seek rulings as a matter of law (i) that they have not infringed, either directly or indirectly, any of the four patents owned by Defendant TKH, and (ii) that Defendants have infringed claims 1, 10, 13, and 15 of the '169 Patent. Next, Defendant TKH requests an award of summary judgment in its favor as to (i) the invalidity of claims 1, 10, 15, and 16 of the '169 Patent on a number of grounds, (ii) Plaintiffs’ infringement of certain claims of the '306 and '674 Patents, either directly or under a theory of induced or contributory infringement, ánd (iii) Plaintiffs’ purported failure to produce evidence in support of their challenges to the validity of the '306 and '674 Patents. Finally, Defendant TKAG moves for rulings as a matter of law (i) that one or more claims of the '169 Patent are invalid on various grounds, and (ii) that the accused TKAG products do not infringe claims 1, 6, or 10 of the '169 Patent.

Each of these three summary judgment motions has been fully briefed by the parties. Having carefully and thoroughly re-viewed the parties’ extensive briefing on their motions, as well as the voluminous record accompanying these motions, the Court finds that the relevant facts, legal issues, and authorities are sufficiently presented in these written submissions, and that oral argument would not aid the deci-sional process. Accordingly, the Court will decide the parties’ motions “on the briefs.” See Local Rule 7.1(f)(2), U.S. District Court, Eastern District of Michigan. This opinion and order sets forth the Court’s rulings on these motions.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Parties

Plaintiff I.E.E. International Electronics & Engineering, S.A. is a corporation organized under the laws of Luxembourg with its headquarters located in Contem, Luxembourg. Plaintiff IEE Sensing, Inc. is a subsidiary of I.E.E. International that is organized under the laws of Delaware and headquartered in Auburn Hills, Michigan. Plaintiff I.E.E. International is the owner by assignment of U.S. Patent No. 7,656,169 (the “'169 Patent”).

Defendant TK Holdings Inc. (“TKH”) is a Delaware corporation with its principal places of business located in Greensboro, North Carolina and Auburn Hills, Michigan. Defendant Takata A.G. (“TKAG”) is a corporation organized under German law with its headquarters located in Aschaffen-burg, Germany. Both TKH and TKAG are subsidiaries of Takata Corporation, a Japanese corporation. Defendant TKH is the owner by assignment of U.S. Patent No. 6,577,023 (the “'023 Patent”), U.S. Patent No. 6,825,765 (the “'765 Patent”), U.S. Patent No. 7,180,306 (the “'306 Patent”), and U.S. Patent No. 7,098,674 (the “'674 Patent”).

B. The Technology At Issue and Patents-In-Suit

Each of the four parties to this suit is a supplier to the automotive industry, and Plaintiffs and Defendants are competitors in the sale of occupant sensors to auto manufacturers. In the automotive setting, information from an occupant sensor is most commonly used to deactivate a front passenger air bag in certain situations— for example, when the vehicle seat is occupied by an infant car seat rather than an adult passenger. The patents at issue here concern “capacitive” occupant sensors, which use an electric field to detect the type of occupant sitting on a vehicle seat.

Early occupant sensors determined the type of occupant by measuring weight. Capacitive occupant sensors, in contrast, generate an electric field above the vehicle seat, and detect the type of occupant by measuring an electrical property known as “capacitance” — that is, the ability of an object to store an electrical charge. Capacitive occupant sensors measure the capacitance of a vehicle seat occupant through the use of a “sense electrode” placed in the seat, and this measurement varies depending on the type of occupant. An adult passenger, for example, interacts more with the electric field (and thus produces a higher capacitance in the sense electrode) than an infant car seat, which is smaller and made largely of a substance (plastic) that is a poor conductor of electricity. By measuring the capacitance of the occupant and comparing this measurement with empirical data, a capacitive occupant sensor can distinguish among different types of occupants and pass this information along for use in air bag deployment.

Neither Plaintiffs nor Defendants claim to have invented the general concept of a capacitive occupant sensor, which dates back to at least the early 1970s. Rather, the patents-in-suit reflect various refinements to capacitive occupant sensors that are intended to counteract potential inaccuracies in the measurement of capacitance due to factors such as a wet vehicle seat or variations in temperature. The invention described in Plaintiffs’ '169 Patent, for instance, is intended to achieve more reliable and accurate detection of an occupant even when a vehicle seat is wet. (See Plaintiffs’ Motion, Ex. A, '169 Patent, Col. 6 at 22-34.) Defendant TKH’s '306 Patent incorporates “reference capacitors” that compensate for the effects of environmental conditions such as electromagnetic interference. (See Defendant TKH’s Motion, Ex. I, Fultz 4/2/2012 Expert Report at ¶ 49.) And TKH’s '674 Patent addresses the concern that a seat heater may interfere with the operation of a capacitive occupant sensor, by placing a “driven shield” between the sensing electrode and the seat heater in order to block the “noise” emitted by the seat heater. (See id. at ¶ 54.)

Plaintiffs and Defendants each offer a capacitive occupant detection system that is alleged to infringe one or more of the opposing party’s patents. Plaintiffs began developing their “BodySense” product in 2005, secured a commitment from General Motors in the summer of 2006 to purchase this product, and began shipping the Body-Sense product to General Motors in 2008. Defendant TKH began offering its “CS3” product for sale to automobile manufacturers in the spring of 2007, and made its first commercial shipment of this product in July of 2012. Finally, TKH’s sister company, Defendant TKAG, makes capacitive occupant detection systems that are being used in BMW vehicles.

C. Procedural Background

This is not the first suit between these parties concerning their competing capacitive occupant detection systems. In July of 2009, Defendant TKH brought suit against Plaintiffs in the United States District Court for the District of Delaware, alleging that Plaintiffs had infringed three of the four patents asserted in Defendants’ counterclaims in this case. In November of 2009, the parties executed a tolling agreement, under which TKH agreed to dismiss its suit without prejudice while the parties sought to negotiate a settlement. The tolling agreement granted TKH a one-month opportunity to reinstate its lawsuit in the event that the parties failed to reach a settlement, but TKH did not exercise this option.

Instead, Plaintiffs commenced the present action in this Court in September of 2010, alleging that Defendant TKH’s capacitive occupant detection system infringes the '169 Patent, and seeking a declaration that Plaintiffs’ BodySense product does not infringe the '023, '765, '306, and '674 Patents held by TKH. TKH filed counterclaims accusing Plaintiffs’ BodySense product of infringing the '023, '765, '674, and '306 Patents, and requesting a declaration that it has not infringed Plaintiffs’ '169 Patent or, alternatively, that the '169 Patent is invalid on a number of grounds. When Plaintiffs learned during discovery that TKH’s sister company, Defendant TKAG, also was producing a capacitive occupant detection system that allegedly infringes the '169 Patent, Plaintiffs filed an amended complaint naming TKAG as an additional party, and TKAG, in turn, filed a counterclaim against Plaintiffs seeking a declaration that its product does not infringe the '169 Patent or, alternatively, that the '169 Patent is invalid.

III. ANALYSIS

A. The Standards Governing the Parties’ Cross-Motions

Through the three motions presently pending before the Court, Plaintiffs and Defendants seek an award of summary judgment in their favor on a number of the claims and counterclaims asserted in Plaintiffs’ complaint and Defendants’ counter-complaints. Under the Federal Rule governing these motions, summary judgment is proper “if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As the Supreme Court has explained, “the plain language of Rule 56[ ] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

To the extent that the parties seek an award of summary judgment in their favor on an issue as to which they bear the burden of proof — e.g., a claim that the opposing party’s product infringes a patent, or that a patent asserted by the opposing party is invalid — the moving party’s “showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir.1986) (internal quotation marks, citation, and emphasis omitted). Regardless of the allocation of the burden of proof, the central issue under Rule 56 is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).

In deciding a motion brought under Rule 56, the Court must view the evidence “in a light most favorable to the party opposing the motion, giving that party the benefit pf all reasonable inferences.” Smith Wholesale Co. v. R.J. Reynolds Tobacco Co., 477 F.3d 854, 861 (6th Cir.2007). Yet, the nonmoving party may not rely on bare allegations or denials, but instead must support a claim of disputed facts by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A). Moreover, any supporting or opposing affidavits “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). Finally, “[a] mere scintilla of evidence is insufficient” to withstand a summary judgment motion; rather, “there must be evidence on which the jury could reasonably find for the non-moving party.” Smith Wholesale, 477 F.3d at 861 (internal quotation marks and citation omitted).

B. Defendants Have Failed to Establish Any of Their Challenges to the Validity of Plaintiffs’ '169 Patent.

1. The Standards Governing Defendants’ Invalidity Challenges

In their two summary judgment motions, Defendants TKH and TKAG con-ténd that Plaintiffs’ '169 Patent is invalid as anticipated, as obvious, and for failure to name an inventor who purportedly contributed to one or more of the patent’s claims. To establish that the asserted claims of the '169 Patent are invalid as anticipated under 35 U.S.C. § 102, Defendant must point to a single prior art reference or prior invention that “disclose[s] every limitation of the claimed invention, either explicitly or inherently.” MEHL/Biophile International Corp. v. Milgraum, 192 F.3d 1362, 1365 (Fed.Cir.1999) (internal quotation marks and citation omitted). Because a patent is accorded a statutory presumption of validity, see 35 U.S.C. § 282(a), Defendants must prove by clear and convincing evidence that the '169 Patent is invalid under one or more of the subsections of § 102. See American Seating Co. v. USSC Group, Inc., 514 F.3d 1262, 1267 (Fed.Cir.2008). “Although anticipation under 35 U.S.C. § 102 is a question of fact, it may be decided on summary judgment if the record reveals no genuine ■ dispute of material fact.” Golden Bridge Technology, Inc. v. Nokia, Inc., 527 F.3d 1318, 1321 (Fed.Cir.2008).

Next, to establish that the asserted claims of the '169 Patent are invalid as obvious, Defendants must show that “the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” 35 U.S.C. § 103(a). Under § 103, the central inquiry is “whether the combined teachings of the prior art, taken as a whole, would have rendered the claimed invention obvious to one of ordinary skill in the art.” In re Napier, 55 F.3d 610, 613 (Fed.Cir.1995). Yet, in conducting this inquiry, the Court must take care not to engage in “hindsight recreation” of the subject patent from the prior art. Al-Site Corp. v. VSI International, Inc., 174 F.3d 1308, 1325 (Fed.Cir.1999). Rather, Defendants must “show some motivation or suggestion to combine the prior art teachings,” either in the prior art itself or by reasonable inference “from the nature of the problem or occasionally from the knowledge of those of ordinary skill in the art.” Al-Site Corp., 174 F.3d at 1323-24. While the obviousness inquiry “rests on underlying factual determinations,” Al-Site Corp., 174 F.3d at 1323, the “ultimate judgment of obviousness is a legal determination,” KSR International Co. v. Teleflex Inc., 550 U.S. 398, 427, 127 S.Ct. 1727, 1745, 167 L.Ed.2d 705 (2007). Thus, where “the content of the prior art, the scope of the patent claim, and the level of ordinary skill in the art are not in material dispute, and the obviousness of the claim is apparent in light of these factors, summary judgment is appropriate.” KSR International, 550 U.S. at 427, 127 S.Ct. at 1745-46.

Defendants’ final challenge to the validity of the '169 Patent rests upon the statutory command that “[w]hen an invention is made by two or more persons jointly, they shall apply for patent jointly.” 35 U.S.C. § 116(a). In accordance with this mandate, the courts have held that “[a] patent is invalid if more or fewer than the true inventors are named.” Gemstar-TV Guide International, Inc. v. International Trade Comm’n, 383 F.3d 1352, 1381 (Fed.Cir.2004). Once again, however, the statutory presumption of patent validity gives rise to a corollary “presumption that the named inventors on a patent are the true and only inventors,” Gemstar-TV Guide International, 383 F.3d at 1381, so that “a party alleging non joinder [of an inventor] must meet the heavy burden of proving its case by clear and convincing evidence,” Nartron Corp. v. Schukra U.S.A., Inc., 558 F.3d 1352, 1356 (Fed.Cir.2009) (internal quotation marks and citation omitted).

2. Defendants Have Failed to Demonstrate as a Matter of Law That TKH’s 1.5 Prototype Was Used in Public or Was Not Concealed, Such That It Qualifies as Prior Art Under 35 U.S.C. §§ 102(a) or 102(g).

Defendants’ first challenge to the validity of Plaintiffs’ '169 Patent rests on the contention that Defendant TKH developed and publicly used a occupant detection prototype, known as the “1.5 Prototype,” that constitutes prior art under either 35 U.S.C. §§ 102(a) or 102(g), and thereby invalidates the '169 Patent. As discussed below, however, the Court finds that issues of fact remain as to whether TKH’s 1.5 Prototype meets the standards for prior art set forth in subsections (a) and (g) of § 102.

Under § 102(a), a patent may not issue if “the invention was known or used by others in this country ... before the invention thereof by the application for patent.” The courts have held, and the parties here agree, that the “use[ ]” referenced in § 102(a) “must be accessible to the public.” Minnesota Mining & Manufacturing Co. v. Chemque, Inc., 303 F.3d 1294, 1301 (Fed.Cir.2002); see also Woodland Trust v. Flowertree Nursery, Inc., 148 F.3d 1368, 1370 (Fed.Cir.1998) (“[I]n order to invalidate a patent based on pri- or knowledge or use, that knowledge or use must have been available to the public.”). Because the application for the '169 Patent was filed on February 6, 2007, Defendants’ appeal to § 102(a) must rest on a showing that TKH’s 1.5 Prototype was publicly used prior to that date.

In an effort to make this showing of public use, Defendants point,to the deposition testimony of a TKH employee, Phillip Maguire, regarding a “mini-clinic” conducted by TKH in May of 2006 at which the 1.5 Prototype was placed in vehicle seats and used with different types of occupants, including humans, test dummies, and infant car seats. Specifically, Mr. Ma-guire testified that this mini-clinic was “held in a rented space adjacent to [TKH’s] building,” that the individuals who served as the “occupants” during the mini-clinic were recruited and paid by an outside agency, rather than by TKH directly, and that the 1.5 Prototype was “demonstrated ... to customers” — in this case, Ford Motor Company — at this mini-clinic. (Defendant TKH’s Motion, Ex. H, Maguire Dep. at 57-58, 67-68.) Mr. Maguire further testified that the individuals hired to sit in the vehicle seats containing the 1.5 Prototype could “come and go as they chose” and could “see their own data” as they sat in the seats, and that “in general” the participants in these clinics were told that the occupant detection prototype included “an electrode that’s sensing current” that would generate results on a screen as they sat down on a vehicle seat. (Id. at 67-68.) In Defendants’ view, this testimony establishes that the 1.5 Prototype was “publicly disclosed” and “publicly used” in May of 2006, several months before the date of the invention disclosed in the '169 Patent. (Defendant TKH’s Motion, Br. in Support at 5-6.)

The record put forward by TKH, however, falls well short of demonstrating as a matter of law — much less by clear and convincing evidence — that the May 2006 mini-clinic qualifies as a public use of the 1.5 Prototype that could invalidate the '169 Patent. As evidenced in case law cited by Plaintiffs and Defendants alike, the “public use” needed to satisfy § 102(a) has been described as encompassing “use[] by an individual other than the inventor under no limitation, restriction, or obligation of confidentiality.” American Seating Co., 514 F.3d at 1267; see also Baxter International, Inc. v. Cobe Laboratories, Inc., 88 F.3d 1054, 1058 (Fed.Cir.1996). In Baxter International, 88 F.3d at 1058-59, for example, the Federal Circuit held that a scientist had publicly used a centrifuge where “[h]is laboratory was located in a public building,” others (including both co-workers and outside visitors) “came into his laboratory and observed the centrifuge in operation,” and “[t]hose who observed the centrifuge in operation were under no duty to maintain it as confidential.” Defendants assert that the record here likewise demonstrates that the May 2006 mini-clinic “involved members of the public, none of who[m] signed any ‘confidentiality provisions’ ” prohibiting them from disclosing what they observed. (Defendant TKH’s Motion, Br. in Support at 6; see also Defendant TKH’s Reply Br. at 1 (describing the mini-clinic as entailing use of the 1.5 Prototype “in the open by members of the public”).)

This assertion, to put it charitably, overstates and mischaracterizes a record that is far from definitive on the question of public access to the 1.5 Prototype. First, it is problematic to look to the testimony of Mr. Maguire in order to determine whether the mini-clinic participants may be characterized as “members of the public,” where he conceded that he “was not the main person running the clinic.” (Maguire Dep. at 68.) Even more to the point, Mr. Maguire explained that the clinic participants were recruited by an outside agency, rather than TKH, so that he presumably would not have been in a position to say— and, in fact, offered no such definitive statement at his deposition — whether this outside agency required the participants to sign a non-disclosure agreement or otherwise insisted that they not share what they learned with members of the general public. (Id. at 57, 67.) Certainly, nothing in the record before the Court indicates that Mr. Maguire had any such personal knowledge as to the practices of the outside agency that actually lined up the participants for the May 2006 mini-clinic. As Plaintiffs observe, and as Defendants concede (at least implicitly), any such obligation of confidentiality owed by the mini-clinic participants would negate Defendants’ claim that the 1.5 Prototype was accessible to the public, see, e.g., American Seating Co., 514 F.3d at 1267; Baxter International, 88 F.3d at 1058, and the silence in the record on this point does not permit the Court to decide this question in Defendants’ favor as a matter of law.

Moreover, even if the mini-clinic participants were free to disclose what they saw and learned to members of the general public, the case law suggests that a grant of limited access that fails to disclose the inner workings and novel elements of a device might not qualify as a public use. In W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1549 (Fed.Cir.1983), for instance, non-party Budd purchased a machine from an individual named John W. Cropper, and then “told its employees the Cropper machine was confidential and required them to sign confidentiality agreements.” Apart from the use of the machine by Budd employees who were “legally bound to keep their knowledge confidential,” Budd also arranged for employees of another company, du Pont, to view the machine “to see if they could help increase its speed.” W.L. Gore, 721 F.2d at 1549. The Federal Circuit found that this grant of access to du Pont employees did not qualify as public use of the Cropper machine, where there was “no evidence that a viewer of the machine could thereby learn anything of which process, among all possible processes, the machine is being used to practice.” 721 F.2d at 1549.

Similarly, in this case, Defendants suggest no reason to believe that the mini-clinic participants who sat in vehicle seats containing the 1.5 Prototype “thereby learn[ed] anything” about the operation of this prototype. As Mr. Maguire acknowledged at his deposition, while clinic participants were told “in general” that the 1.5 Prototype operated by means of “an electrode that’s sensing current” and were shown “the results” when they sat down in vehicle seats, he “would not expect” the participants to be told how the prototype was built or precisely how current was processed to determine what sort of occupant was sitting in the vehicle seat. (Ma-guire Dep. at 68.)

Defendants insist, however, that the law does not demand this sort of detailed disclosure in order to establish a public use. They point, in particular, to the decision in Egbert v. Lippmann, 104 U.S. 333, 336-37, 26 L.Ed. 755 (1881), in which the Supreme Court held that a pair of “corset-steels” were publicly used even though they were hidden within a woman’s corset. In so ruling, the Court observed that “some inventions are by their very character only capable of being used where they cannot be seen or observed by the public eye,” and it explained that so long as a device is “used without restriction of any kind, the use is a public one.” Egbert, 104 U.S. at 336. Likewise, while Defendants acknowledge that the occupant detection system at issue here was installed within a vehicle seat and hidden from view, they nonetheless contend that the clinic participants need not have observed the inner workings of the 1.5 Prototype or obtained detailed information about the manner in which it operated in order for the May 2006 mini-clinic to qualify as a public use of the prototype.

Yet, the case law subsequent to Egbert has fleshed out the meaning of the Supreme Court’s statement that a “public use” is a “use[ ] without restriction of any kind,” and the courts have looked to such factors as “the skill and knowledge of those observing an invention” in making this determination. Dey, L.P. v. Sunovion Pharmaceuticals, Inc., 715 F.3d 1351, 1355 (Fed.Cir.2013); see also Pronova BioPharma Norge AS v. Teva Pharmaceuticals USA, Inc., 549 Fed.Appx. 934, 940 (Fed.Cir.2013) (considering “the sophistication of those to whom disclosure was made” in deciding whether a device was used without restriction). Dey provides a recent illustration of this “use without restriction” inquiry, as the court considered whether the plaintiffs patents for a pharmaceutical product to treat lung disease were invalidated as a result of the defendant’s prior clinical trial of an allegedly similar product. See Dey, 715 F.3d at 1353-55. The individuals who administered the clinical trial signed confidentiality agreements “directing them to hold all proprietary information in confidence for five years,” and they also were “forbidden from disclosing the study protocols or dispensing the drug to any person who was not a trial subject” and “held accountable for securely storing the drug and maintaining records of its disposition and use.” 715 F.3d at 1354. The study participants, in turn, “signed a consent form stating that the medication[ ] 'must be taken only by the person for whom it was intended’ ” and requiring them “to keep usage logs and return unused medications.” 715 F.3d at 1354. The participants, however, “were not prohibited from speaking with others about the study,” but to the contrary were invited to discuss it with their regular physicians. 715 F.3d at 1354.

The district court held that the defendant had established as a matter of law that its clinical trial constituted a public use, but the Federal Circuit disagreed, finding that “[important issues of fact remain in dispute.” 715 F.3d at 1356. Of particular relevance here, while the district court viewed the record as indicating that the study participants “used the invention as intended,” were “not prevented from using their personal supply of [the medication] however they saw fit,” and made “unfettered use of the composition for weeks at a time,” the Federal Circuit pointed to contrary evidence that the participants “agreed that only they would take the medications” and “promised to keep accurate usage logs and return all unused medication.” 715 F.3d at 1356. In addition, the Court of Appeals noted that while “the participants were permitted to discuss the study with their doctors, they were not in a position to reveal the composition of the allegedly invalidating prior art, because they were unaware of the specifics of the inventive formulations.” 715 F.3d at 1357. Given that “[t]he ‘public use’ inquiry is replete with factual considerations, such as the (disputed) extent to which study participants were informed of and able to disclose the pertinent details of the claimed prior art,” and given the usual summary judgment principle that the record must be viewed in favor of the non-moving plaintiff, the court held that a reasonable jury could “conelud[e] that the use of [the medication] was sufficiently controlled and restricted, rather than unfettered and public.” 715 F.3d at 1356-57.

In so ruling, the Federal Circuit distinguished the Supreme Court’s decision in Egbert as “turning] on the lack of control the inventor maintained over his invention.” 715 F.3d at 1359; see also Pronova BioPharma Norge, 549 Fed.Appx. at 940 (explaining that under Egbert, “[t]he inquiry is not whether a.third person to whom an invention is disclosed makes an open and obvious use of it, but whether the inventor himself has made a use of his invention which is ‘public’ because it was given to a member of the public without restriction”). Thus, the court found that neither Egbert nor its progeny “permitted the district court to discount the relevance of the study participants’ limited knowledge of [the medication’s] formulation or to sidestep disputed factual questions about the nature of the allegedly public use.” Dey, 715 F.3d at 1359. In light of this limited knowledge and the disputed record as to the degree of control maintained by the defendant during the clinical trial, the court explained that “a reasonable jury could conclude that if members of the public are not informed of, and cannot readily discern, the claimed features of the invention in the allegedly invalidating prior art, the public has not been put in possession of those features.”

Dey provides considerable guidance here, and confirms that even if the participants in the May 2006 mini-clinic were not under an express obligation of confidentiality — a question on which, as explained, the record is silent — issues of fact nonetheless would remain as to whether this mini-clinic constituted a “public use” of TKH’s 1.5 Prototype. In this case, as in Dey, there is only limited and far from definitive evidence as to the “extent to which [mini-clinic] participants were informed of and able to disclose the pertinent details of the claimed prior art.” Dey, 715 F.3d at 1357. The sum total of this record consists of the testimony of Mr. Maguire, who stated (i) that he “was not the main person running the clinic,” and (ii) that clinic participants are told “in general” that “they’re coupled to an electrode that’s sensing current” and are shown “the results on the screen as [they] sit down,” but (iii) that clinic participants typically “would not” be told how the prototype was' built or how it processed the current to determine the type of seat occupant. (Maguire Dep. at 68.) This record simply cannot sustain a determination as a matter of law, especially under the governing clear and convincing standard, that by virtue of outside individuals (with no evident technical background or knowledge) sitting in vehicle seats at the May 2006 mini-clinic, the public was “put in possession” of the “claimed features of the invention” allegedly embodied in the 1.5 Prototype. Dey, 715 F.3d at 1359.

Defendants’ claim of public use of the 1.5 Prototype also is defeated by their failure to produce any evidence that corroborates Mr. Maguire’s testimony as to the purportedly public nature of this use. The Federal Circuit adheres to a “well-established” rule that “a party claiming his own prior inventorship must proffer evidence corroborating his testimony.” Sandt Technology, Ltd. v. Resco Metal & Plastics Corp., 264 F.3d 1344, 1350 (Fed.Cir.2001); see also Thomson, S.A. v. Quixote Corp., 166 F.3d 1172, 1175 (Fed.Cir.1999) (“[A]n inventor’s testimony alone respecting the facts surrounding a claim of derivation or priority of invention cannot satisfy the clear and convincing standard without corroboration.”); Woodland Trust, 148 F.3d at 1371 (“Corroboration of oral evidence of prior invention is the general rule in patent disputes.”). While Defendants suggest that they have provided “abundant corroboration” of Mr. Maguire’s testimony, (Defendant TKH’s Reply Br. at 2), they point exclusively to documents that describe the sorts of tests performed at the May 2006 mini-clinic, list the infant car seats and other sorts of occupants that were placed in vehicle seats during the mini-clinic, and disclose the data gathered in the course of the mini-clinic. (See Defendant TKH’s Reply, Ex. B, Exs. 84, 86, 87 to Maguire Dep.) Nothing in this record corroborates Defendants’ claim, in rebanee solely on Mr. Maguire’s testimony, that the mini-cbnic constituted a public use of the 1.5 Prototype; these documents do not, for example, indicate that the mini-clinic was held in a location open to the public, or that the clinic participants were free to share what they saw and learned. To the contrary, the documents cited by Defendants tend to undercut their claim of public use, where the documents state on their face that they are “[pjrivate and [Confidential.”

Nonetheless, Defendants maintain that the Federal Circuit’s insistence upon corroboration encompasses only inventor testimony as to “conception and reduction to practice,” and that “there has never been a corroboration requirement as to the public nature of a use.” (Defendant TKH’s Reply Br. at 2 (footnote omitted).) Yet, the lone case cited by Defendants in support of this contention, Finnigan Corp. v. International Trade Commission, 180 F.3d 1354 (Fed.Cir.1999), draws no such distinction as to particular aspects of an inventor’s testimony that must (or need not) be corroborated. The court began its discussion of the alleged public use in that case with a broad statement of the requirement of corroboration, observing that “[t]he law has long looked with disfavor upon invalidating patents on the basis of mere testimonial evidence absent other evidence that corroborates that testimony.” Finnigcm Corp., 180 F.3d at 1366. Later in this discussion, the court rejected an appeal by the defendant International Trade Commission to “certain statements in the case law in support of the proposition that not every aspect of [the inventor’s] testimony needs to be corroborated,” finding that each of the cases cited by the defendant commission addressed the sufficiency of the evidence of corroboration, rather than the threshold need for corroborative evidence. 180 F.3d at 1369-70. The court then concluded its analysis by stating:

In the end, what we are left with is [the inventor’s] testimony concerning his alleged public use. Such evidence is insufficient as a matter of law to establish invalidity of the patent. This is not a judgment that [the inventor’s] testimony is incredible, but simply that such testimony alone cannot surmount the hurdle that the clear and convincing standard imposes in proving patent invalidity.

180 F.3d at 1370. Nothing in Finnigan Corp., therefore, relieves Defendants of the obligation to support Mr. Maguire’s testimony with corroborative evidence of the public use of TKH’s 1.5 Prototype. See also Sandt Technology, 264 F.3d at 1350 (stating that the presumption of patent validity “requires those challenging validity to introduce clear and convincing evidence on all issues relating to the status of a particular reference as prior art” (emphasis added)); Delano Farms Co. v. California Table Grape Commission, 940 F.Supp.2d 1229, 1248 (E.D.Cal.2013) (opining that the requirement of corroboration applies to testimony “from an accused in-fringer concerning the sale or public use of an invention before the critical date”).

As still another infirmity in Defendants’ claim of public use of the 1.5 Prototype, Plaintiffs contend that the record gives rise to issues of fact as to whether the May 2006 mini-clinic constituted “experimental use” of the 1.5 Prototype. The courts have emphasized that use “by way of experiment, and in order to bring the invention to perfection,” does not qualify as public use under § 102. American Seating Co., 514 F.3d at 1267 (internal quotation marks and citation omitted); see also Baxter International, 88 F.3d at 1059 (“Experimental use negates public use.”). In this case, Mr. Maguire himself described the mini-clinic as entailing “testing done with [TKH’s] CS3 [product],” (Ma-guire Dep. at 57), and one of the documents produced by Defendants to corroborate the existence of this mini-clinic refers to “[t]esting in vehicles,” “[t]esting [that] took place in three CD seats,” the “testing]” of infant car seats in both “rear facing and forward facing” positions, the “testing] of “[s]mall adults ... in 24 positions,” and various types of infant car seats that were “[t]ested” in the course of the mini-clinic, (Defendant TKH’s Reply, Ex. B, Ex. 84 to Maguire Dep. at 2, 4.). Although Defendant TKH insists — without citation to supporting evidence in the record — that its “use of the Prototype was not experimental,” and that “TKH already knew that the concept [embodied in the prototype] worked,” (Defendant TKH’s Reply Br. at 3), the Court finds that the several references to “testing” in the testimony of TKH’s own employee and in TKH’s own documents is sufficient to raise factual questions that a jury must decide.

In the alternative, Defendants argue that even if they have failed to demonstrate that the May 2006 mini-clinic represented a “use” of the 1.5 Prototype within the meaning of § 102(a), they can nonetheless establish the invalidity of Plaintiffs’ '169 Patent under subsection (g) of this statute. To invalidate the '169 Patent under § 102(g), Defendants must show by clear and convincing evidence that before the February 6, 2007 filing date of Plaintiffs’ patent, Defendant TKH made its 1.5 Prototype and did not “abandon[], suppress[ ], or conceal[ ] it.” 35 U.S.C. § 102(g)(2); see also Thomson, 166 F.3d at 1175. As Defendants observe, their failure to sustain their challenge to the '169 Patent under § 102(a) is not fatal to their appeal to § 102(g), as these two subsections set forth separate criteria for determining what qualifies as prior art. See Thomson, 166 F.3d at 1175 (explaining that § 102(g) has been interpreted “to permit qualifying art to invalidate a patent claim even if the same art may not qualify as prior art under other subsections of § 102”).

Nonetheless, the Court need not linger long over Defendants’ appeal to § 102(g), as it is defeated largely on the same grounds discussed earlier as to Defendants’ claim of “public use.” In opposing Defendants’ § 102(g) challenge, Plaintiffs point to the statutory requirement that TKH’s 1.5 Prototype must not have been “suppressed” or “concealed.” 35 U.S.C. § 102(g)(2). Plaintiffs have the threshold burden to “produce evidence sufficient to create a genuine issue of material fact as to whether [TKH] has suppressed or concealed” its 1.5 Prototype. Apotex USA, Inc. v. Merck & Co., Inc., 254 F.3d 1031, 1037 (Fed.Cir.2001). Once Plaintiffs have met this burden of production, Defendants “must rebut any alleged suppression or concealment with clear and convincing evidence to the contrary.” Apotex, 254 F.3d at 1038.

The Court finds that Plaintiffs have satisfied their initial burden of production through the evidence that Defendant TKH asserted claims of confidentiality over the documents memorializing the usé of the 1.5 Prototype at the May 2006 mini-clinic. The Federal Circuit has held that an inference of suppression or concealment may arise through evidence of a “delay in ... bringing the knowledge of the invention to the public.” Apotex, 254 F.3d at 1038. “Absent a satisfactory explanation for the delay or the presence of other mitigating factors, a prior invention will therefore be deemed suppressed or concealed within the meaning of § 102(g) if, within a reasonable time after completion, no steps are taken to make the invention publicly known.” 254 F.3d at 1039 (internal quotation marks and citation omitted). In this case, Defendant TKH has asserted that the invention embodied in the 1.5 Prototype was conceived, designed, and reduced to practice by the time of the May 2006 mini-clinic. (See Defendant TKH’s Motion, Br. in Support at 6 (citing evidence that this prototype was built by January of 2006); see also Defendant TKH’s Reply Br. at 3.) Yet, the documents through which TKH presented the results of this mini-clinic to prospective customers uniformly bore such designations as “Private,” “Confidential,” and “Not for Third Party Distribution.” ' (See Defendant TKH’s Reply, Ex. B, Exs. 84, 88 to Ma-guire Dep.) In addition, and as discussed earlier, Defendants have failed to produce any evidence to support their claim that the mini-clinic participants were “members of the public” who were at liberty to disclose what they observed and learned during the mini-clinic. This record would permit the inference that Defendant TKH took steps to suppress or conceal the 1.5 Prototype, at least around the time of the mini-clinic.

Consequently, Defendants must rebut this inference of suppression or concealment “with clear and convincing evidence to the contrary.” Apotex, 254 F.3d at 1038. The requisite showing of public disclosure within a reasonable time may be made through evidence of the filing of a patent application, commercialization of the device, or disclosure in a printed publication. See Fox Group, Inc. v. Cree, Inc., 700 F.3d 1300, 1306 (Fed.Cir.2012). Here, Defendants point to evidence of steps taken by TKH to commercialize its product, including “developing and testing prototypes, presenting test results and system capabilities to several potential customers, and ultimately selling the invention” to General Motors. (Defendant TKH’s Reply Br. at 4.) Yet, the evidence identified by Defendants is vague and uncertain, at best, as to when these commercialization efforts occurred. Moreover, Defendants have not even attempted to marshal this evidence in support of an argument that, as a matter of law, TKH’s commercialization of the 1.5 Prototype constituted the requisite public disclosure of this invention within a reasonable time, and the Court declines to develop such an argument on Defendants’ behalf. Rather, the Court finds that Defendants have failed to establish as a matter of law — particularly under the governing clear and convincing standard — that the 1.5 Prototype qualifies as prior art under either § 102(a) or § 102(g), such that this prototype could anticipate the asserted claims of Plaintiffs’ '169 Patent.

3. Defendants Have Failed in a Number of Respects to Establish as a Matter of Law That the Asserted Claims of the '169 Patent Are Invalid as Anticipated by the '007 Application, or as Obvious in Light of This Application and Other Prior Art References.

As their next challenge to the validity of the '169 Patent, Defendants contend that' the asserted claims of this patent are either anticipated or rendered obvious in light of various items of prior art. In response, Plaintiffs argue (i) that the references identified by Defendants do not qualify as prior art, (ii) that, in any event, issues of fact remain as to whether these references disclose each of the limitations of the asserted claims of the '169 Patent, and (iii) that Defendants have failed to suggest a reason to combine these prior art references, as necessary to establish obviousness. As discussed below, the Court finds that Plaintiffs have the better of the argument on each of the points raised in their opposition to Defendants’ challenge.

The law governing Defendants’ claim of anticipation has been set forth earlier in this opinion. Defendants’ obviousness challenge, in turn, is governed by 35 U.S.C. § 103, which provides in pertinent part:

A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.

35 U.S.C. § 103(a). As observed earlier, while the “ultimate judgment of obviousness is a legal determination,” KSR International, 550 U.S. at 427, 127 S.Ct. at 1745, this judgment “rests on underlying factual determinations,” Al-Site Corp., 174 F.3d at 1323. Once again, as with Defendants’ invalidity challenges under § 102, Defendants bear the burden of showing by “clear and convincing evidence” that the asserted claims of the '169 Patent are invalid for obviousness. Al-Site Corp., 174 F.3d at 1323.

As the first step in their obviousness challenge, Defendants must identify the relevant universe of prior art, and show that each of these references qualifies as prior art under § 102. The first such reference identified by Defendants is TKH’s patent application no. 2007/0,192,-007 (the “'007 Application”), which was filed on January 26, 2007. (See Defendant TKH’s Motion, Ex. I, Ex. 46 to Fultz Expert Report.) Although the '007 Application was filed shortly before the February 6, 2007 filing date for the '169 Patent, Plaintiffs have produced evidence that the invention embodied in the '169 Patent was made at least as early as November 29, 2006, (see Plaintiffs’ Response to Defendant TKH’s Motion, Ex. D, 11/29/2006 Memo), and Defendants evidently do not dispute this, at least for purposes of their present summary judgment motions. Standing alone, then, the '007 Application does not qualify as prior art with respect to the '169 Patent, because it was not filed until after the invention embodied in the '169 Patent was made. See 35 U.S.C. § 102(e) (providing that a patent may not issue if the invention claimed in the patent was described in “an application for patent ... by another filed in the United States before the invention by the applicant for patent”).

Nonetheless, Defendants insist that the '007 Application does, in fact, constitute prior art under § 102(e) because it “claims priority to provisional application no. 60/762,124, filed January 26, 2006,” (Defendant TKH’s Motion, Br. in Support at 10), a date well before the November 29, 2006 invention date claimed by Plaintiffs. This claim of priority, however, is wholly unsupported by any argument or evidence of any kind. As Plaintiffs correctly observe, “a claim of priority is not self-executing— TKH must prove it.” (Plaintiffs’ Br. in Response to Defendant TKH’s Motion at 11 (citing PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299, 1305-06 (Fed.Cir.2008)).) Even after Plaintiffs pointed out this lack of support for Defendants’ claim of priority, TKH failed to address this deficiency in its reply brief in support of its summary judgment motion, but instead remained utterly silent on the subject. Accordingly, Defendant TKH has faded to identify a basis for treating the '007 Application as prior art under § 102(e), and it follows that TKH cannot succeed in its efforts to invalidate the asserted claims of the '169 Patent as either anticipated by the '007 Application or as obvious in light of this application and other prior art references.

Defendants’ proof is likewise deficient as to a second prior art reference on which they propose to rely, a doctoral dissertation authored by Antoni Ivorra Cano (the “Cano Thesis”). Defendants submit that this reference qualifies as pri- or art under § 102(a) or (b) as a “printed publication.” Yet, “[pjublic accessibility is the touchstone in determining whether a reference constitutes a ‘printed publication’ ” under § 102. ResQNet.com, Inc. v. Lansa, Inc., 594 F.3d 860, 866 (Fed.Cir.2010) (internal quotation marks and citation omitted). “A reference is considered publicly accessible if it was disseminated or otherwise made available to the extent that persons interested and ordinarily skilled in the subject matter or art exercising reasonable diligence[] can locate it.” In re Lister, 583 F.3d 1307, 1311 (Fed.Cir.2009) (internal quotation marks and citation omitted). In the case of dissertations or other materials stored in libraries, the courts have “considered whether the research tools available would have been sufficient to permit an interested researcher to locate and examine the reference,” and have looked to such factors as whether the document was “shelved in the [library] stacks and indexed in the catalog.” Lister, 583 F.3d at 1311-12.

In an effort to establish that the Cano Thesis has the requisite public accessibility to qualify as prior art, Defendants have produced a “certificate” from Didac Martinez Trujillo, the director of the “University Services Area” at the Universitat Poli-técnica de Catalunya in Barcelona, Spain, stating that the Cano Thesis “is complete in our Library and in digital format in an open access repository, at the following link http://hdl.handle.net/10803/6333, since March 2005.” (Defendant TKH’s Motion, Ex. I, Ex. 48 to Fultz Expert Report.) As Plaintiffs observe, however, Mr. Trujillo’s certificate is ineligible for the Court’s consideration in resolving Defendants’ summary judgment motions. First, nothing in this certificate indicates that Mr. Trujillo has personal knowledge of the matter he addresses in his statement — i.e., the availability of the Cano Thesis in an “open access repository” since March of 2005 — or that he is competent to testify on this subject. Fed.R.Civ.P. 56(c)(4); see also Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 968 (6th Cir.1991) (citing and applying this same language as it appeared in an earlier version of Rule 56). In addition, Plaintiffs point to a federal statute that permits a matter to be supported or established through an “unsworn declaration [or] certificate,” but only if the person making the statement attests to its truth “under penalty of perjury.” 28 U.S.C. § 1746. Mr. Trujillo’s certificate, however, is unsworn and lacks the attestation demanded by this statute. Accordingly, Defendants have failed to produce cognizable evidence that the Cano Thesis is a publicly accessible “printed publication” within the meaning of § 102(a) or (b).

Even assuming, despite these various deficiencies of proof, that the '007 Application, the Cano Thesis, and the Smith Thesis all qualify as prior art, the Court finds that issues of fact preclude a determination as a matter of law that the '169 Patent is invalid as obvious in light of these prior art references. In their present pair of motions, Defendants contend that claims 1, 6, 15, and 16 of the '169 Patent are invalid as obvious as a result of a combination of TKH’s '007 Application and either the Smith Thesis or the Cano Thesis. First, while Defendants acknowledge that the '007 Application does not “explicitly disclose the clocked rectifier” that is included as a limitation in each of claims 1, 6, 15, and 16, (see Defendant TKH’s Motion, Br. in Support at 11), they nonetheless contend that both the Smith Thesis and the Cano Thesis disclose a clocked rectifier for use in a capacitive sensing system. Accordingly, Defendants and their expert, Dr. William W. Fultz, submit that all of the elements of claims 1, 6, 15, and 16 are present in a combination of the '007 Application and either the Smith Thesis or the Cano Thesis. (See Defendant TKH’s Motion, Ex. I, Fultz 4/2/2012 Expert Report at ¶¶ 159, 162-64, 166; Exs. 56, 57 to Fultz 4/2/2012 Expert Report (claim charts); Defendant TKAG’s Motion, Ex. F, Fultz 4/22/2013 Expert Report at ¶¶ 106,109-111,113; Exs. 33, 34 to Fultz 4/22/2013 Expert Report (claim charts).)

In response, Plaintiffs and their expert, Thomas G. Matheson, Ph.D., first dispute the assertion of Defendants and their expert that the Cano Thesis discloses a clocked rectifier. In particular, while Defendants read the Cano Thesis as referencing a “commercially available integrated circuit from Analog Devices which perform[s] the same Clocked Rectifier functions described in the '169 patent, including the embedded low pass filter or integrator circuit,” (Fultz 4/2/2012 Expert Report at ¶ 139), Plaintiffs’ expert opines that the Analog Devices circuit “does not include an ‘embedded low pass filter or integrator circuit’ as asserted by Dr. Fultz,” so that this circuit “is not a clocked rectifier as taught by the '169 patent,” (Dkt. No. 323, Matheson 5/3/2012 Rebuttal Report at ¶ 122). To be sure, Defendants’ expert has prepared a supplemental expert report in which he “completely disagree[s] with Dr. Matheson on whether the [Analog Devices circuit] includes a lowpass filter” and opines that “[a]nyone with a basic electrical engineering degree would recognize” that Dr. Matheson is “completely wrong” on this point. (Defendant TKH’s Motion, Ex. R, Fultz 5/22/2012 Suppl. Expert Report at 12.) Likewise, Defendant TKH asserts in its reply brief that “[n]o reasonable jury could agree” with the position advanced by Plaintiffs and their expert. (Defendant TKH’s Reply Br. at 8.) Yet, Defendants fail to suggest a basis upon which the Court could determine as a matter of law that Defendants’ expert is right and Plaintiffs’ expert is wrong on this factual question as to the scope and content of the prior art. See Beckson Marine, Inc. v. NFM, Inc., 292 F.3d 718, 725 (Fed.Cir.2002) (citing the “scope and content of the prior art” as one of the “factual inquiries” that must be resolved in order to reach a legal conclusion on obviousness).

Similarly, Plaintiffs and their expert have raised issues of fact as to whether the Smith Thesis can supply the clocked rectifier that is lacking from TKH’s '007 Application. Specifically, Plaintiffs’ expert reads the Smith Thesis as “teaching] away” from the use of a clocked rectifier, as this reference presents alternative “techniques and circuitry as superior to” the use of “a clocked rectifier as taught by the '169 Patent.” (Matheson 5/3/2012 Rebuttal Report at ¶¶ 123-24.) Again, Defendants and their expert take issue with this reading of the prior art, asserting that “[r]egardless of what Smith actually used in his system, the Smith reference teaches a clocked rectifier as claimed in the '169 patent,” and opining that Smith’s “use of one method over another” does not equate to “teachfing] away from the use of a clocked rectifier.” (Fultz 5/22/2012 Supp. Expert Report at 14-15.) As the Federal Circuit has observed, however, “[w]hether the prior art teaches away from the claimed invention is a question of fact,” Spectralytics, Inc. v. Cordis Corp., 649 F.3d 1336, 1343 (Fed.Cir.2011), and Defendants have failed to identify a basis in the record for taking this question away from the trier of fact and resolving it as a matter of law.

More generally, Plaintiffs have raised additional issues of fact as to two other issues bearing on Defendants’ claim of obviousness. First, Plaintiffs point out that “[a] reference qualifies as prior art for an obviousness determination under § 103 only when it is analogous to the claimed invention.” In re Klein, 647 F.3d 1343, 1348 (Fed.Cir.2011). A reference is sufficiently analogous if it is “from the same field of endeavor, regardless of the problem addressed,” or if it is “reasonably pertinent to the particular problem with which the inventor is involved.” Klein, 647 F.3d at 1348 (internal quotation marks and citation omitted). As observed by Plaintiffs, the '169 Patent is in the field of “capacitive occupant detection system[s] ... for detecting the absence or presence of an occupant seated on a vehicle seat,” (Plaintiffs’ Motion, Ex. A, '169 Patent, Col. 1 at 6-9), while the Cano Thesis addresses “Living Tissue Ischemia Injury Monitoring,” (Defendant TKH’s Motion, Ex. I, Ex. 48 to Fultz Expert Report, Cano Thesis at 1). Thus, Plaintiffs’ expert has opined that “Cano is not directed to the same field as the '169 invention or to the same problems that the '169 inventors were trying to solve.” (Defendant TKAG’s Motion, Ex. C, Matheson 5/10/2013 Rebuttal Report at ¶ 46.) In response, Defendants offer only the assertion of their counsel, without citation to the record, that “Cano is directly pertinent to the demodulation of complex current signals,” the “exact problem” addressed in the '169 Patent. (Defendant TKAG’s Reply Br. at 10.) Because this is an issue of fact, see Klein, 647 F.3d at 1347, the Court finds that it must be left for the trier of fact to resolve.

Next, Plaintiffs observe that Defendants’ claim of obviousness implicates still another factual inquiry — namely, whether a person having ordinary skill in the art would have “a reason to combine prior art references” in order to “arrive at the claimed invention.” Kinetic Concepts, Inc. v. Smith & Nephew, Inc., 688 F.3d 1342, 1366-67 (Fed.Cir.2012). In arguing that the requisite reason to combine is lacking, Plaintiffs cite to the opinion of their expert that, on various grounds, there would have been no reason to combine the '007 Application with the teachings of either the Cano Thesis or the Smith Thesis. {See Matheson 5/3/2012 Rebuttal Report at ¶¶ 119-21, 135-36, 140-41, 145-46.) Defendants then respond as follows, without any citation whatsoever to the opinion of their expert or anything else in the record:

The reason to combine the teachings of either Smith or Cano with TKH’s '007 Application cannot be genuinely disputed. Smith addresses the exact same problem as the '007 Application — capaci-five occupant detection in automobiles. Cano demonstrates the “off-the-shelf’ technology that was available for demodulating complex electrical signals. Additionally, the demodulation of these signals is a problem addressed in Cano, Smith, and the '007 Application.

(Defendant TKH’s Reply Br. at 8.) Needless to say, the ipse dixit of defense counsel is not sufficient to resolve this issue of fact in Defendants’ favor as a matter of law.

Finally, Defendants challenge one of the asserted claims of the '169 Patent, claim 10, as anticipated by the '007 Application alone, without any need to combine this and any other prior art references. Claim 10, unlike the other asserted claims of the '169 Patent, lacks a clocked rectifier, so there is no need to look to other prior art references to supply this element of the claim. The parties’ dispute on this issue rests principally on the question whether the '007 Application discloses the fifth and final limitation of claim 10, which describes the determination of the occupancy state of a vehicle seat by reference to a comparison with a threshold:

wherein said processor determines said occupancy state based upon a comparison of said second signal indicative of said second current component with a threshold, said threshold being dependent upon said first signal indicative of said first current component.

('169 Patent, Col. 14 at 42-46.) In Defendants’ view, since Plaintiffs and their expert rely on a figure from the '007 Application — a figure that also appears in the earlier-filed provisional application to which Defendants claim priority — to support their claim that Defendant TKAG’s accused products meet this fifth limitation of claim 10, (see Defendant TKAG’s Motion, Ex. U, Matheson 2/21/2013 Expert Report, Ex. A, Infringement Chart at 27), it follows that this same figure must show that the '007 App