Full opinion text
MEMORANDUM OPINION AND ORDER GETZENDANNER, District Judge: This action under Sections 1 and 2 of the Sherman Act and Sections 3, 4, 7, and 16 of the Clayton Act, 15 U.S.C. §§ 1, 2, 14, 15, 18, and 26, respectively, is before the court on the motions of defendant Illinois Tool Works (ITW) for summary judgment and for sanctions under Rule 11. The complaint arises out of allegedly anticompetitive conduct on the part of ITW in monopolizing the market for plastic multi-pack can carriers and in excluding plaintiffs GripPak, Inc., Michael Kovac, and Ernest Cunningham from entering the market. The chief action of which plaintiffs complain is defendant’s filing of an allegedly baseless state court lawsuit against them for breach of fiduciary duty and theft of trade secrets. This lawsuit allegedly disrupted their business relationships with several would-be licensees and prevented them from raising the capital necessary to compete in the plastic carrier market. The current motion for summary judgment raises four legal disputes: 1) whether Grip-Pak was sufficiently prepared to enter the multi-pack carrier market so as to recover lost manufacturing profits; 2) whether Grip-Pak’s claim of lost profits is in any event speculative; 3) whether plaintiffs’ claim for damages from ITW’s filing of a state court lawsuit against them is barred under the Noerr-Pennington doctrine; and 4) whether ITW’s filing of a patent application in 1973 constituted fraud on the patent office so as to sustain an antitrust claim in connection with that filing. For the reasons set forth herein, the motion for sanctions is denied, and the motion for summary judgment is granted in part. This motion is ITW’s third and final motion for summary judgment in this action. An earlier opinion by Judge Parsons granting summary judgment was reversed by the Seventh Circuit. Grip-Pak v. Illinois Tool Works, Inc., 694 F.2d 466 (7th Cir. 1982), cert. denied, 461 U.S. 958, 103 S.Ct. 2430, 77 L.Ed.2d 1317 (1983). In that decision, the Seventh Circuit held that 1) plaintiff need not be a manufacturer of plastic six-pack holders to collect damages for its exclusion from that market if it was prepared to enter the market within a reasonable time; and 2) a prior state court finding that defendant’s suit was not malicious did not bar a claim that the suit was unlawful under the federal antitrust laws. The case was remanded to Judge Parsons for consideration of whether Grip-Pak had made a sufficient showing that it was prepared to enter the market within a reasonable time so as to collect antitrust damages for being excluded. ITW’s renewed motion for summary judgment on remand was denied on September 19, 1984. Judge Parsons nonetheless advised the parties that a further motion might yet be proper. The case was reassigned to my calendar on November 23, 1984, and on January 31, 1985, I gave defendant leave to file a final motion for summary judgment upon completion of certain discovery. The motion was filed on May 22, 1985, and became fully briefed 5V2 months later. During the briefing of these motions, ITW also filed a motion for Rule 11 sanctions based on plaintiffs’ alleged misrepresentation of the deposition testimony of ITW’s general counsel Robert Beart. The court will discuss that motion first, as it affects the factual record on the summary judgment motion. Motion for Sanctions ITW's motion for sanctions arises out of plaintiffs’ assertions in their summary judgment papers that Robert Beart, ITW’s former Senior Vice-President and General Counsel, admitted during deposition questioning that the real purpose of ITW’s trade secret action against Grip-Pak was to interfere in the latter’s business relationships. In particular, the dispute concerns whether Beart answered “absolutely” or “absolutely not” when asked if the real purpose of the suit was to affect GripPak’s ability to consummate a burgeoning relationship with Anheuser-Busch. The parties have filed affidavits from the court reporter and from the various attorneys present at the deposition. Defendant has accused plaintiffs’ counsel of deliberately distorting the record, and plaintiffs in turn have accused defense counsel of belatedly trying to correct a damaging admission. The court cannot resolve these charges without creating a sattelite litigation and thereby frustrating the disposition of the underlying case. Moreover, the court is uninclined to inquire into the matter further, since the affidavits all point to a genuine mistake. The court’s own interpretation of the record is that there was some genuine confusion over what Beart said, but that he intended to answer “absolutely not,” and that the court reporter mistakenly pressed an asterisk which, under her computerized program, automatically deleted the word “not” from the transcript. Beart corrected the mistake, but, for reasons which are unclear, his handwritten (as opposed to typed) corrections did not get properly forwarded to the court reporter the first time around, and never got properly forwarded to plaintiffs’ counsel. Plaintiffs’ counsel, Leslie Locke, no doubt aware that the admission seemed unlikely, double-checked with the court reporter before filing his response to the present motion. She advised him of a probable error in transcription but her answer was not definitive, and Locke then chose to rely on the answer as reported, Despite room for other conclusions, the court finds that Locke’s conduct in calling the court reporter is inconsistent with any knowledge on his part that the statement had in fact been corrected by the deponent, and that Locke’s reliance on what he thought was an uncorrected admission, even though he might have suspected that the deponent misspoke, does not violate Rule 11. The court nonetheless concludes that, for purposes of the summary judgment motion and the future record in this case, the misdelivered corrections should be incorporated into the record. Beart obviously intended to answer “absolutely not,” and defense counsel’s correspondence indicates a genuine belief that the full set of corrections had been sent to plaintiffs’ attorneys. The court considers it irrelevant whose negligence caused the misdelivery of the corrections. Facts The court notes at the onset of this discussion that it has relied wholly on the deposition excerpts and documents appended to the parties’ Rule 12 statements of facts and not the statements themselves. The reason for noting this is that the plaintiffs’ statement contains many assertions which are unsupported by the factual record. That record, interpreted in the light most favorable to plaintiffs, is as follows. ITW is a corporation engaged in the multi-packaging business. Since the late 1950’s, ITW, through its Hi-Cone Division, has been in the business of manufacturing, selling, and leasing plastic multi-pack carriers for cans and machines for applying such carriers to cans. These carriers include the familiar plastic ring device used to hold together six-packs of canned beverages. Traditionally, beer carriers were supplied by one group of companies, and assembly machines for attaching the carriers to cans were supplied by another. ITW changed that relationship by marketing carriers and assembly machines together as a single system. No other competitor supplies assembly machines to the trade, and the only major competitor in the plastic can carrier market is ITW’s licensee, Owens-Illinois. There is evidence that ITW and Owens-Illinois representatives used to be engaged in price-fixing discussions. ITW does not license Owens-Illinois or anyone else to supply its machines, and supplies them to the trade on a lease-only basis. At one time, its leases prohibited use of the machines with non Hi-Cone carriers; the current leases prohibit alteration or modification of the machines without ITW’s consent. Plaintiffs have testified that this prohibition makes it more costly and difficult to design competing can carriers for use with ITW’s machines. During the period involved in this lawsuit, ITW together with Owens-Illinois enjoyed a market share ranging from 50% to 85% of the plastic can carrier market. The high share is partly explicable by certain patents ITW holds. Plaintiffs allege that this dominance is due to ITW’s policy of buying up patents it doesn’t intend to use and then vigorously enforcing those patents against would-be entrants into the market. As of 1977, ITW owned about 110 U.S. patents related to the Hi-Cone carrier, many acquired from outsiders. Plaintiff Grip-Pak, Inc., a successor in interest to a partnership called ERC & Associates, was formed in March 1972 by plaintiffs Ernest R. Cunningham and Michael Kovac, former employees of ITW. Kovac was employed by ITW from July 1, 1963 to February 12, 1971 as a patent attorney. Cunningham was employed by ITW as an engineer from October 22, 1962 to November 1, 1968. Both men worked in the multi-packaging division of the business. At the time of Grip-Pak’s incorporation, Kovac was a practicing lawyer in St. Louis, Missouri, and Cunningham worked for Barr-Stalford. Neither worked full-time for Grip-Pak, but continued their other jobs. They formed Grip-Pak to exploit Cunningham’s plastic carrier and carrier assembly machine inventions. Cunningham had invented and filed patent applications on a plastic bottle carrier (“Grip-Pak I”) and a plastic can carrier (“Grip-Pak II”). Three United States patents issued to Cunningham on Grip-Pak I in 1974, and two United States patents. on Grip-Pak II in 1974 and 1976. The facts of this motion concern Grip-Pak’s efforts to market these two products and the effect that ITW’s conduct had on these efforts. Grip-Pak I Grip-Pak I is a “cold stretch” multi-pack carrier for glass bottles which Cunningham invented in 1969. This carrier uses an envelope of blown plastic film, which is molded into the shape of a bottomless bag and stretched over the necks of a group of bottles. The natural tension of the film secures the bottles in the carrier. Previous bottle carriers had been made of cardboard, and Cunningham considered that Grip-Pak I would be less costly to manufacture and more safe than cardboard carriers, since dropped or exploded bottles would break inside the protective plastic film. Neither Grip-Pak I nor any other cold-stretch multipack bottle carrier has ever been sold on a commercial basis. In 1972, Cunningham designed and fabricated a small handoperated assembly machine to package bottles in the Grip-Pak I carrier. This machine was operable and used at a packaging show in May 1973 to display Grip-Pak I to potential customers. That machine could not have been used, however, to assemble packages on a commercial production run basis. Grip-Pak did not have any machine to apply its bottle carriers on a production run basis until after 1977, when Yanamura agreed to fabricate a semi-automatic assembly machine in exchange for the right to manufacture and sell Grip-Pak I in the Far East. Yanamura manufactured the machine sometime around 1979, but the business relationship between Grip-Pak and Yanamura didn’t go any further. Beginning in July of 1971, Cunningham and Kovac met with Owens-Illinois (“Owens”) representatives to discuss Grip-Pak I. By September 1971, Owens concluded it was seriously interested in an option and licensing arrangement, the basic terms of which were for Owens to give Grip-Pak . $10,000 for developing samples and an applicating machine usable for conducting market tests. Owens would aid in the production of the samples, and Grip-Pak would commence work on a single head powered applicating machine. If the option were exercised, Owens would then have paid an additional $60,000 to Grip-Pak plus royalties of 2 to 5 percent. Owens concluded that Grip-Pak’s proposed selling price would justify a $400-million investment. Grip-Pak never developed the applicating machine, despite an estimate that it needed only two weeks to develop a prototype, and no deal was ever reached. In December 1971, Cunningham demonstrated Grip-Pak I and a hand assembly machine to several ITW executives, including Robert Beart. At a June 1972 meeting, Beart pointed out various ITW trade secrets he felt were reflected in Grip-Pak I. Kovac and Cunningham showed him why the alleged secrets or confidences didn’t apply, and the subject was dropped thereafter. ITW subsequently asked Kovac to submit a written license proposal. Kovac proposed a joint venture, and ITW counter-proposed to pay Kovac and Cunningham a $3,000 monthly consulting fee, which they rejected. In early 1972, Grip-Pak finally did enter into an option agreement with Union Carbide with respect to Grip-Pak I. Union Carbide paid $5,000 for the option. On or about May 9, 1972, Union Carbide wrote Grip-Pak that, although Grip-Pak I “appealed] to be technically feasible, capital costs and marketing economics presage commercial failure for this project.” Union Carbide therefore declined to exercise its option. The letter noted in passing that ITW was also working to develop plastic bottle carriers. Grip-Pak claims that the bottle carrier supposedly in development at ITW was in fact Grip-Pak I, but the evidence cited to support this allegation does not support this claim. On August 29, 1972, Cunningham and Kovac met again with ITW. The parties subsequently began negotiating an agreement whereby ITW would obtain a sole and exclusive right and option on Grip-Pak I for an unspecified period. The agreement called for a $10,000 option fee to be paid to Grip-Pak for development expenses, and called for a $125,000 minimum royalty payment in the event ITW thereafter exercised its option. ITW never purchased the option, and by November of 1972, Grip-Pak decided to postpone development of “GripPak I” until “Grip-Pak II” had been successfully introduced into the market. Grip-Pak did meet with Owens-Illinois again on May 29, 1973, to discuss Grip-Pak I. Although Owens representative R.J. Heier described Cunningham and Kovac as “dreaming,” Owens executive C.D. Gray believed the concept had merit. Gray recommended putting off any deal, however, in light of ITW’s then pending court action to enjoin Grip-Pak from marketing GripPak I. The record is silent on whether Grip-Pak attempted to renegotiate arrangements with Owens after it won the suit. Grip-Pak II In early 1972, Cunningham invented and filed for United States patents on a scrap-less plastic can carrier which was subsequently named Grip-Pak II. Unlike conventional plastic carriers, which are manufactured through a “cookie cutter process” and thus create scrap material (usually remelted for future use), the Grip-Pak II method of manufacturing produces no scrap. The carrier is produced by joining a strip down the center of a plastic tube to form two distinctive bands or tubes called “Siamese tubes.” The flattened Siamese tube is then die-cut by alternately slitting the top and bottom webs. When pulled open, the cut tubing forms pairs of round holes for cans. Because Grip-Pak II produces no scrap in the manufacturing process, the product promised significant cost savings over the traditional cookie-cutter carrier. Nonetheless, there have never been commercial sales of Grip-Pak II (or any other scraplesstype carrier) to people who can soft drinks or beer. Whether this failure is due to the product’s inherent flaws or to ITW’s monopolistic conduct, is in many ways the crux of the dispute in this case. One of the first companies contacted by Grip-Pak was ITW, which learned about Grip-Pak II in May 1972 and saw a sample the following month. On May 30, 1972, Kovac wrote Cunningham about the desirability of establishing that ITW had no ownership rights or prior development in the product. No trade secret problems regarding Grip-Pak II were apparently discussed, however. The parties thereafter briefly corresponded about development of GripPak II, but never got to the proposal stage. In July 1972, Kovac and Cunningham contacted executives at Anheuser-Busch, and showed them Grip-Pak II. Cunningham told Anheuser-Busch that Grip-Pak II could be run on ITW’s Hi-Cone applicating machines by building a separately mounted adaptor machine to open up the Grip-Pak II carrier and put it on the ITW assembly. This adaptor machine existed only as a concept of Cunningham’s but Cunningham, who invented the Hi-Cone machines, is confident that such an adaptor could be built. The record suggests that, if such an adaptor could be built, Grip-Pak II could be applied to cans on ITW’s Series 200 machines, which were still being used by some of ITW’s customers at that time. At some point thereafter, ITW switched the design of its machines to a Series 500. This latter machine is useless for applying Grip-Pak II to cans. Letters and discussions with AnheuserBusch continued. On September 15, 1972, Anheuser-Busch sent Grip-Pak an outlined program for developing Grip-Pak II. Kovac replied with a written proposal on December 27, 1972, followed by subsequent written proposals in April and May of 1973. In the agreement, the parties contemplated that Anheuser-Busch would make available a Hi-Cone carrier applicating machine for Grip-Pak's use in developing a “commercially acceptable” product. The agreement set forth “specific levels of development” for Grip-Pak to meet, including submission of 50,000, 500,000, and 1,000,000 Grip-Pak II carriers (at a price of $7.98 per thousand) for three series of functional evaluations and market tests. At this time, Grip-Pak had no facilities for manufacturing Grip-Pak II. Under the agreement, Anheuser-Busch had no obligation to make test shipments until it determined that the carriers were commercially acceptable, had no obligation to buy any carriers beyond the development period, and could cancel the contract at any time. Kovac testified that Busch was not obliged to buy any carriers which didn’t work. The agreement was to be signed at a May 29, 1973 meeting. At the meeting, Kovac and Cunningham informed various Anheuser-Busch personnel that they had been sued by ITW. According to Kovac, Charles Koenig, Anheuser-Busch Assistant Director of Purchasing, told Kovac that he wouldn’t sign the agreement until Anheuser’s legal personnel had assessed the lawsuit situation. Koenig testified in his deposition in this action, however, that Anheuser-Busch continued to consider a development program with GripPak subsequent to the lawsuit, but was not interested in signing any agreement until Grip-Pak had a supply of carriers to use in the development program. Grip-Pak never supplied Anheuser-Busch with such carriers. During the same period it negotiated with Anheuser-Busch, Grip-Pak, negotiated and eventually entered into an agreement with Packaging Industries (“PI”) whereby the latter was granted a nonexclusive license to make, use and/or sell Grip-Pak II machinery. PI had concluded that the proposed manufacturing and storage costs would make Grip-Pak II a feasible product, and also felt that Grip-Pak II’s feature of perforations (leaving the plastic rings on each can) avoided the disposal problems of the Hi-Cone carriers after usage. The contract was signed in March 1973 and provided in pertinent part that PI would develop at its own expense an ex-truder line with a “Tubular Water Bath” cooling system as promptly as practicable after Grip-Pak’s submission of written reasonable performance specifications. This method would then be used to manufacture the Siamese tubing necessary for Grip-Pak II. Grip-Pak agreed to manufacture the cutting die for each production line. The first die would be sold to PI for $30,000; subsequent dies would be sold at cost plus 25%. Under the agreement, PI agreed to pay an annual minimum royalty of $50,000, to be paid six months after the first commercial sale of Grip-Pak II carriers and annually thereafter. Grip-Pak knows of no other company which has ever manufactured Siamese tubing. In May of 1973, Grip-Pak and PI displayed the Grip-Pak II can carrier at a national packaging show at McCormick Place in Chicago, and demonstrated how it could be used on a set of jaws from an ITW assembly machine. Over 150 domestic and foreign companies requested information. ITW’s Response: The Lake County Suit When ITW officials learned that GripPak I and Grip-Pak II were being disclosed to the public at the May 1973 trade show, they decided to file a lawsuit against GripPak, Kovac, and Cunningham. The stated purpose of the lawsuit was to protect ITW’s property interest in and rights to certain secrets and confidential information which they felt Kovac and Cunningham had used in developing Grip-Pak I and II. The lawsuit was authorized by Silas Catch-cart, ITW’s CEO, upon the advise of outside legal counsel and of ITW’s then general counsel, Robert Beart. Both of these ITW representatives have maintained throughout this case that the purpose of the lawsuit was as alleged in the complaint, i.e., to protect ITW’s property. The lawsuit also named PI as a defendant. ITW had no personal knowledge of wrongdoing on Pi’s part, but named it as a defendant in view of its involvement with Grip-Pak at the May. 1973 trade show. An internal memo prepared by ITW’s outside counsel in June of 1973 reflects that GripPak I resembled a bottle carrier conceived by Beart, to which Kovac had been exposed; and that Cunningham, while at ITW, had discussed in a brain-storming session the concept of making a plastic can carrier from a tube of plastic, which is the way Grip-Pak II is made. Finally, ITW representatives expressed to counsel that Grip-Pak II resembled a carrier invented by Ron Owen, an ITW product engineer, in 1969. That product had been shown to Kovac back then, and he had recommended patenting if there was commercial interest. The Owen invention is similar to GripPak II in that both involve slitting a plastic tube which then pulls apart to form a “scrapless” carrier device. Owen’s device as disclosed in 1969 was intended for cardboard boxes rather than cans, however, involved a single side tube as opposed to two narrow ones, and was in certain other respects unlike Grip-Pak II. As of May 1973, ITW had never prepared a patent application on the project. Owen conceived this device after Cunningham had left ITW. Plaintiffs claim that Beart knew this fact, but the deposition testimony only supports the inference that the fact didn’t occur to Beart at the time of filing suit, allegedly because he viewed Kovac and not Cunningham as the chief culprit. The parties put on a 21-day bench trial in July and August of 1974. At the close of ITW’s case, Grip-Pak, Cunningham and Kovac moved to dismiss its claims. The trial court denied the motion. The parties submitted proposed findings of fact and conclusions of law. On November 14, 1974, the court ruled in favor of Grip-Pak, Cunningham and Kovac. The judge declined to enter a finding that ITW had acted maliciously in filing suit. The Seventh Circuit has held that this finding has no collateral estoppel effect in this case. The trial court on February 24, 1975, denied Grip-Pak’s post-trial motion for fees incurred in defending allegations made without reasonable cause and not in good faith. In November, 1976, the Illinois Appellate Court affirmed the trial judge’s entry of judgment and his decision to deny Grip-Pak’s motion for fees; the Illinois Supreme Court denied review on March 31, 1977. In October, 1976, while the ITW case was on appeal, ITW commenced a second lawsuit against Grip-Pak in Paris, France, realleging many of the claims it made in the 1973 trade secret suit and requesting the French court to assign Grip-Pak’s French patents to it. ITW had been advised that, had this suit not been filed by November 23, 1976, it would lose its ability to get future relief if the Lake County judgment were reversed in its favor. Within a month of the French filing, the Lake County case was affirmed on appeal; when the Illinois Supreme Court denied review, ITW instructed its French solicitors to dismiss its writ. Kovac was informed of this development by his French counsel in a letter dated April 29, 1977. The lawsuit was not formally dismissed until July 1977, however, by which date Grip-Pak had filed the present action. During this same time period, ITW attorney Edward Benno wrote to ITW’s Swedish patent counsel that the Grip-Pak patent “resulted from the outright thievery, breach of eonract, and breach of fiduciary relationship of two of our former employees.” The letter referred to the filing of the French and American lawsuits, but did not mention the trial court’s decision except for the following statement: “We are now before our State Court of Appeals with our legal action and we expect a favorable decision ... by the end of this year.” Grip-Pak alleges that the manifest purpose of this letter was to deceive ITW’s Swedish attorneys about the true facts of the Lake County suit. Sometime after losing the trial, ITW also changed its assembly machine and carrier pricing structure. Previously, ITW had charged a flat monthly rental fee for assembly machines regardless of usage. In 1975, however, ITW added a usage charge to the lease agreements, but lowered the list price of its plastic carriers by about $1.00 per thousand, or ten percent. This change shifted costs from the carriers to assembly machines, thus reducing the cost advantages of competing plastic carriers such as Grip-Pak which were designed for use with the Hi-Cone assembly machines, and increasing costs in the area where ITW enjoyed a monopoly. ITW’s Response: The Ron Owen Patents Around the same time it decided to file suit against Grip-Pak, ITW also decided to act to protect its interests in the Ron Owen invention, which Grip-Pak II resembled. Owen first saw the Grip-Pak II invention at the McCormick Place trade show and immediately noted its similarity to his earlier disclosure. He shared this reaction with Edward Benno, an ITW patent attorney. The two of them met with Beart, who engaged the law firm of Olson, Trexler, Wolters, Bushnell & Fosse, Ltd. to prosecute a patent application pertaining to the Ron Owen invention. Richard Trexler of the Olson, Trexler firm was the attorney responsible for the form and contents of the Ron Owen patent application. Trexler was aware in preparing the application that a patent application had been filed on the Grip-Pak II structure, although he did not know in whose name, and that Kovac had had familiarity with the Ron Owen invention. Trexler was concerned that public disclosure of Grip-Pak II might establish a bar to the patentability of the Ron Owen invention, but he also believed (correctly) that the Ron Owen invention antedated the Grip-Pak II invention and (incorrectly) that Grip-Pak II was in fact derived from the Ron Owen invention. The basis for his belief was Kovac’s knowledge of the Ron Owen invention and Kovac’s role as patent attorney or possibly inventor of Grip-Pak II. In Trexler’s opinion, Owen’s patentable invention involved both a method for slitting plastic tubing and the tubing created by use of the method. He drafted the claims accordingly, and included in his application two figures which showed a device formed by use of the method of slitting when applied to a pair of joined, parallel tubes. This application generates a double-row six-pack carrier product much like Grip-Pak II. In Trexler’s opinion, these figures (7 and 8) showed a preferred embodiment, or best mode, of the invention, as is proper to disclose in a patent application. Because the public disclosure of Grip-Pak II represented a potential bar to patentability, Trexler believed that an interference proceeding should be sought for the purpose of establishing that the Ron Owen invention antedated the invention of GripPak II and that the latter was derived from the former. Trexler believed that a prerequisite to the Patent Office’s declaring an interference is substantial similarity between the interfering applications. Because he believed that the Grip-Pak II application claimed or disclosed a double-row carrier product, he believed it was necessary and desirable to disclose a double-row carrier product substantially similar to Grip-Pak II and therefore included figures 7 and 8 for that purpose as well. On May 11, 1973, Ron Owen signed the patent application as the inventor. The patent was assigned to ITW. Owen told Richard Grace, an ITW salesman, that Beart had argued for including the double tube figure in the application as a logical extension of the single tube concept, which Owen had disclosed in 1969. According to Grace, Owen added that he had felt “intimidated” by Beart into signing the application. Owen in his deposition denied having made such a remark, but the court will accept the remark as true for purposes of this motion. On May 14, 1973, Trexler filed the Owen application with the Patent Office and asked the office to declare an interference between Owen’s application and the GripPak application. No interference was dedared between the two applications. Trexler believes that the lack of an interference was caused by Kovac’s decision to withdraw from the Grip-Pak II application all claims that might have conflicted with claims and disclosures contained in Owen’s application. The patent Examiner then reached the conclusion that the common subject matter was unpatentable over the prior art. On August 7, 1974, the patent Examiner determined that the method and article claims of the Owen application should be prosecuted separately; ITW decided to prosecute only the article claims. The Examiner further required ITW to select for prosecution the claims readable on only one of the following species: the carrier reflected in figures 1-4; that reflected in figures 5-6; or that reflected in figures 7-8. ITW elected the species of figures. 1-4. Figures 3 and 4 of the application show a carrier slit alternately from side to side so as to form an unstepped carrier; figures 5 and 6 show an alternative procedure for unfolding the carrier to form a stepped carrier. The 1969 disclosure reflects only the stepped version, and plaintiff contends that Owen’s sample cannot be transformed into figures 3 and 4 by mere physical manipulation. While the cited portions of the record do not support this assertion, apparently Trexler at his deposition was unable to figure out how the unfolding worked. If plaintiffs’ charge is true, then only figures 5 and 6 of the application would have been actually reduced to practice before filing. On October 25, 1974, the Examiner rejected several claims as unpatentable on the basis of Cunningham’s Grip-Pak II patent. In order to overcome this rejection, the Olson, Trexler firm filed a Rule 131 affidavit to show that the Ron Owen invention antedated the filing date of Cunningham’s Grip-Pak II application. Attached to the Rule 131 affidavit was a complete copy of the Ron Owen disclosure. On November 14,1974, the Lake County Circuit Court included in its findings of fact that ITW had derived figures 7 and 8 from Cunningham’s Grip-Pak II invention. Trexler informed the Patent Office of this particular finding, but added that “[ajpplicant does not agree with these findings____’.’ On or about March 19, 1975, the Examiner removed Cunningham’s patent as a reference and allowed one of ITW’s claims in the Owen application, subject to amendments. In July 1975, he rejected the amended claims but allowed one newly-added claim, and made his determination final. His action was upheld by the Board of Appeals on May 26, 1977, and later by the Court of Customs and Patent Appeals. The Board of Appeals expressly considered the specific holding of the Lake County court and found them not relevant. Trexler informed the court of appeals of the appellate decision several months after it was issued. Around the same time ITW appealed the Examiner’s rejection of its original claims, it filed a divisional application for a rewritten version of some of those claims. Upon initial action, the Examiner allowed two claims but rejected a third as unpatentable in view of Grip-Pak II. To overcome the rejection, Trexler refiled the Rule 131 affidavit. On or about February 23, 1977, the Examiner directed ITW to submit a factual description of exactly what was done with the Ron Owen invention between its 1969 reduction to practice and the 1973 filing of the patent application. In response, ITW filed affidavits from Beart and from Robert Rettig, a vice president of ITW, which indicated that ITW had not publicly disclosed the Owen invention except in discussing its general structure with Personal Products, Inc. The affidavits also stated that ITW had not done anything with the Owen invention due to a lack of required machinery but had not intended to abandon the invention. Finally, Beart’s affidavit stated that the filing was prompted by the discovery that Cunningham and Kovac “were in the process of making a public disclosure of an invention which in the opinion of counsel was in conflict with and constituted an appropriation of the Ron Owen invention hereof.” Trexler, on or about May 6, 1977, submitted a copy of the appellate court decision affirming the trial court’s findings and reiterated the position that “applicant does not agree with a number of the rulings made____” On or about October 11, 1977, the Examiner concluded that ITW had not attempted to sell the Ron Owen invention for public use, and had not willfully suppressed or concealed it. The Examiner allowed three claims in the divisional application in early 1978, and a patent including those claims was issued in August of that year. In ' addition to procuring the two United States patents, ITW also successfully prosecuted several foreign patents on the Ron Owen invention. In 1975, it obtained patents in New Zealand and Australia; in 1977, it obtained patents in Great Britain, Italy, and France. In 1979, it obtained patents in Belgium and Sweden. Each of these patents contains disclosures on figures 3, 4, 7, and 8 of the May 1973 application. ITW has never commercially developed its patents on the Ron Owen device. As noted earlier, Grip-Pak narrowed its own patent application in response to these claims and ITW’s request for interference. Kovac also believes that Owen’s patents dominate Grip-Pak II and preclude him and Cunningham from making or licensing the manufacture of Grip-Pak II here and abroad. Trexler, however, believes that ITW’s Canadian patent would dominate Grip-Pak II because Grip-Pak withdrew its competing patents there, but not ITW’s French patent, and has not otherwise expressed the view that ITW’s patents dominate Grip-Pak II. ITW has never sued or threatened to sue Grip-Pak for infringement of the Ron Owen patents, and GripPak has never asked ITW for its views on the matter. Neither party has put forth evidence to explain how Owen’s invention could dominate Grip-Pak I in view of the Patent Office’s initial conclusions that the similarities were unpatentable, but perhaps the later removal of Grip-Pak as a reference would explain the possible domination. Owen left ITW’s employ sometime around 1975. He and a former ITW salesman Richard Grace thereafter discussed going into competition with ITW, but were afraid of being sued. Owen told Grace he was on a consultant retainer from ITW, but that he wasn’t doing any consulting. Grace testified that Owen is untruthful, and insinuated that the retainer was possibly some sort of bribe. Post-1973 Attempts to Manufacture and/or License Grip-Pak I & II Grip-Pak has alleged that ITW’s lawsuit, by draining its financial resources and diverting executive time, prevented the successful development of Grip-Pak I and II. ITW has argued on this motion that GripPak cannot, as a matter of fact and law, prove it had the financial and technical wherewithal to begin manufacturing efforts, and that its claims for lost profits must be stricken for failure of proof. The undisputed facts which inform this debate are as follows. Grip-Pak’s 1972 Income Tax Return, which covered the taxable year ending April 30, 1973, showed total assets of $743.62 and income of $5,000 before deductions. Grip-Pak’s return for the subsequent year indicated assets of $9,446.14, most of which was cash, and zero income. Both returns showed that no compensation was paid to either Cunningham or Kovac, that Cunningham devoted 50% of his time to the business, and that Kovac devoted 0% of his time to it. The assets of Grip-Pak, apart from amounts allocated to patents, have been less than $15,000 for most of its history, but have gone up to $54,000. During this same period, Kovac has not worked full time for Grip-Pak, and Cunningham only worked full time for Grip-Pak for several months in 1973. Grip-Pak’s internal business plans for 1974 and 1975 reflected that full-scale production of Grip-Pak II would have required around $500,000 in funding. While outright licensing of Grip-Pak II, with no retained rights to manufacture and sell the carriers, would have required only minimal expenses, as of May 1972 Grip-Pak was not interested in licensing, and four years later when Coors sought to buy Grip-Pak outright, plaintiffs refused. What funds GripPak did have in this period were apparently used to pay legal expenses. From 1973-1977, Grip-Pak incurred $264,692.50 in legal fees and around $25,000 in trial-related expenses. As of July 1981, Grip-Pak had paid $129,187.26 of this debt, and owed $265,-867.24 (presumably including interest). As noted earlier, ITW’s suit had two immediate negative effects on Grip-Pak’s business: Owens-Illinois put off negotiations regarding a tentative deal for licensing Grip-Pak I, and Anheuser-Busch delayed signing an option regarding Grip-Pak II. The Owens-Illinois deal was not firm, however, and Grip-Pak at that time had decided to postpone development of GripPak I until Grip-Pak II had been successfully introduced into the market. As noted earlier, Yanamura eventually fabricated a commercial assembly machine for Grip-Pak I. The machine was never commercially used, however, because marketing experts advised Grip-Pak that the introduction of foam shields on nonreturnable bottles lessened the attractiveness of a cold stretch wrap carrier. As of 1984, Grip-Pak I still had never been commercially sold or even tested. Kovac’s testimony permits the inference that the Anheuser-Busch development agreement regarding Grip-Pak II would have been signed on May 29, 1973 but for ITW’s lawsuit, and that Grip-Pak would then have had a guaranteed purchase of 1,550,000 carriers for testing purposes at a cost of $7.98 per thousand if it could have manufactured them to Busch’s satisfaction. By that date, Packaging Industries, GripPak’s licensee, had designed and fabricated a machine capable of manufacturing about 30 feet of Grip-Pak Siamese tubing per minute. Jon Glydon of PI testified, however, that PI could service only a fraction of Anheuser-Busch’s needs at that time. Moreover, before the carriers could be manufactured, Grip-Pak needed to develop a die cutter for slitting the tubing into carriers and to develop an assembly machine whereby the product could be applied to cans on a production run basis, neither of which it had. Grip-Pak never developed such an assembly machine. Its intent was to run GripPak II carriers on Hi-Cone equipment, and Cunningham had a concept for a machine which would open up the Grip-Pak samples and put them onto the jaws of a Hi-Cone Series 200 applicating machine. Although he never actually built such a machine or even designed it on paper, he is confident that it could be built. ITW’s position on the similar Ron Owen inventions supports Cunningham’s belief: ITW felt that the Ron Owen carriers, if successfully developed, could be applied to cans on existing Hi-Cone machinery. Cunningham did demonstrate Grip-Pak II carriers on Hi-Cone jaws at the May 1973 trade show, but the carriers have never been commercially run on Hi-Cone machines. Sometime after 1973, ITW modified its machinery from a four-jaw design to a two jaw/depressor plate design. Grip-Pak II cannot be run on this new machinery. By May of 1973, Cunningham also had no commercial die cutter, but had fabricated a prototype rotary die cutter (subsequently patented) from which he later produced several thousand Grip-Pak II carriers some time in the fall of 1975. The success of the die cutter was a source of friction between Grip-Pak and PI. On October 30, 1973, Cunningham criticized Pi’s failure “to produce Siamese tubing in accordance with our March 23, 1973 license agreement,” and cancelled the license. Kovac also felt at that time that Pi’s process had not produced an acceptable commercial form. PI responded in December that “the type of cutting being done with your cutting devices is [according to outside chemical analysts] the biggest problem in maintaining the integrity of the package.” The letter referred to the fact that “once a nick or tear is started, there is nothing to prevent it from continuing to tear.” On January 24, 1974, the parties worked out their differences and the letter of cancellation was withdrawn. By November 24, 1974, Kovac had concluded that Pi’s Siamese tubing met Grip-Pak’s performance specification. Grip-Pak, meanwhile, did not manufacture a production line die cutter until sometime in 1975 or 1976, when Anatoliy Popow, a tool and die maker, manufactured a production die at a cost of about $30,000. Popow later accepted Grip-Pak voting stock as payment. In August 1975, Kovac informed PI that it could obtain a production die for that price. Kovac said that GripPak’s own production cutting die system was not in operation due to financial difficulties, and that it was unable to make samples at that time. Jon Anthony Glyon of PI responded that he wanted to know the basis on which Kovac thought the new cutting die was operable, since PI was still willing to utilize the original cutting device. In October, Kovac wrote back that GripPak would guarantee any cutter to produce Grip-Pak II to Pi’s specifications, but that the first cutter was for Grip-Pak’s own use and could not be borrowed. In February 1976, Glydon wrote Cunningham: The reason that I had said use your original cutter was because you represented to us and we relied on the fact that that cutter worked. Now we know for the first time that it does not work, and we would therefore have to assume that any new cutting device will also not work. Cunningham responded in March that Grip-Pak had not operated the production die due to financial limitations, but was still prepared to provide and guarantee a production cutting die to PI upon receipt of a firm written order and carrier specifications. PI never placed either a firm order or specifications, and on May 10, 1976 filed suit against Grip-Pak, Cunningham, and Kovac, accusing them of never having developed or supplied a die as obligated to do under the license agreement. Grip-Pak filed an answer and counterclaim alleging Pi’s failure to place a firm order and to manufacture acceptable tubing. The suit was settled on or about March 19, 1977, and the parties declared their previous agreements to be null and void. Glydon, as well as the plaintiffs, is of the opinion that the ITW lawsuit poisoned the Grip-Pak and PI relationship, and prevented them from successfully entering the plastic multi-pack carrier market. According to both parties, the chief reason GripPak could not produce the cutting die was lack of funds, and the chief reason for lack of funds was ITW’s lawsuit. At one point, PI did not pay Grip-Pak a $50,000 royalty due to its legal expenses. It is unclear, however, whether Grip-Pak made any efforts at obtaining financing. Grip-Pak had almost no assets at the time suit was filed and Kovac testified that Grip-Pak intended not to seek outside funding but to rely on its stockholders for additional equity contributions. From 1972-75, these stockholders contributed $90,000 to Grip-Pak, $30,000 of which is attributable to the Popow die cutter. At least one of the stockholders testified that the legal expenses formed a chief part of his reluctance to contribute more money. In 1975, MorAmerica, Inc., a venture capital firm, offered Grip-Pak $300,000 in exchange for a 25 percent share of its equity. MorAmerica wanted personal guarantees from Kovac and Cunningham, however, which they were afraid of giving because of substantial personal debt. Accordingly, plaintiffs turned down the offer. ITW’s lawsuit also affected Grip-Pak’s relationship with PI in areas other than financing. In October 1973, Cunningham criticized PI for its failure to meet certain lawsuit obligations. Glydon at his deposition testified that the lawsuit embittered Cunningham, and caused him to look at everyone as enemies. Pi’s own legal costs created further tensions, and ITW refused to provide or discuss providing assembly machines to PI during the period that PI remained a defendant in the suit. An agreement to provide such a machine was apparently negotiated in settlement of ITW’s suit against PI. Other efforts to develop Grip-Pak II continued despite the filing of the ITW lawsuit. Beginning in or around June 1973 and continuing through December 1975, Grip-Pak had a series of contacts with Mead Packaging to discuss the possibility of Mead becoming a licensee or joint venturer with respect to Grip-Pak II. On December 17, 1975, Mead advised that, in its opinion, the Grip-Pak II carrier lacked “package integrity” and would offer no substantial cost advantage over the Hi-Cone carrier. Mead also wrote that it did not believe a feasible and cost-effective production process could be achieved on the basis of Grip-Pak’s present position. Although Kovac attempted to re-interest Mead in a development program on July 29, 1977, when ITW’s appeals from the lawsuit had been exhausted, Mead did not accept the offer. Negotiations between Grip-Pak and Anheuser-Busch also continued after the filing of the ITW lawsuit. In December 1973, Chuck Koenig of Anheuser-Busch told Kovac that there were “various ramifications” which could result should Busch pursue its test program with the threat of the ITW lawsuit, and nothing happened for a while. Grip-Pak informed Koenig in November 1974 that it had been exonerated from ITW’s charges and was in the process of completing its first production line. On or about December 11, 1974, Koenig sent Grip-Pak a draft development program proposal, much along the lines of the May 1973 proposal: i.e., Anheuser-Busch would at its option make test shipments and market tests of the Grip-Pak II carriers at such time as the carriers were deemed commercially acceptable. Anheuser-Busch would not know whether Grip-Pak would or would not qualify as a supplier until the test program was conducted and evaluated, and was not interested in signing an agreement until Grip-Pak came with a supply of carriers for use in the development program. Grip-Pak never came to Anheuser-Busch with such carriers. In September 1975, Grip-Pak again contacted Anheuser-Busch and AnheuserBusch wrote back to confirm its continued interest in a revival of a market test program for Grip-Pak II. Kovac and Cunningham were in debt, however, and problems between Grip-Pak and PI prevented GripPak from reviving the test market agreement with Anheuser-Busch at that time. Grip-Pak then proposed a joint venture agreement, but withdrew this offer and proposed a program instead which would allow Anheuser-Busch to self-manufacture Grip-Pak II carriers. Anheuser-Busch did not enter into the proposed program. In 1975 and 1976, Grip-Pak met with Jeffrey Coors, vice-president of research and development for Coors Brewery. Coors has always made its own can carriers. On April 14, 1976, Coors referred to the “risk involved with Grip-Pak,” specifically, the risk of liability for any patent infringement or other actions taken against Grip-Pak as reasons for not entering into a joint venture agreement. Since Grip-Pak had no money to absorb such a judgment or to fund the development, Coors said it “would feel much more comfortable owning outright the technology for Grip-Pak II.” Coors offered Grip-Pak $200,000 plus a royalty of ten cents per 1,000 carriers, subject to Board approval, and estimated that this proposal once developed would yield Grip-Pak $1,000,000 per year. Kovac and Cunningham turned down the offer since they still intended to manufacture and sell Grip-Pak II carriers themselves. In 1975, Grip-Pak also sought to interest Atlas Plastics in a joint venture relating to Grip-Pak II. Atlas’s president M.L. Christensen believed that Grip-Pak II was still in the developmental stage, and not commercially available for sale, and had been told by Kovac that Grip-Pak did not have the capability to manufacture Grip-Pak II. Atlas Plastics nonetheless found sufficient value in Cunningham’s carrier inventions and technical abilities to enter into a joint venture with an initial capital of $150,000; $75,000 of which was risk-capital contributed by Atlas, and $75,000 of which represented patent rights contributed by GripPak. The agreement also gave Atlas an option to acquire a half-interest in the GripPak II patents. Atlas never exercised its option, however, and on September 9, 1977, Kovac wrote to Christensen terminating those option rights. The letter refers to an interest on Atlas’s part in negotiating a settlement of the ITW lawsuit (presumably this antitrust lawsuit, as the state court suit was resolved by that date). Grip-Pak declined Atlas’s offer to do so. In or about June 1982, Grip-Pak, Kovac, Cunningham and others formed a limited partnership with about $100,000 of equity and loans and began marketing profitably a conventional “cookie cutter” can carrier called Grip-Pak 207.5/209. Thus, as of 1984, although plaintiffs have begun profitable manufacturing efforts, Grip-Pak II has still never been commercially sold or tested on a production run basis. Motion for Summary Judqment As noted earlier, defendant’s summary judgment motion raises four issues, two of which go to liability, and two of which go to the plaintiffs’ ability to prove damages. The court will begin its analysis with the liability issues, even though this is not the order in which the defendant has presented them. Whether Plaintiffs’ Claims Based on the Lake County Suit are Barred by the Noerr-Pennington Doctrine The Noerr-Pennington doctrine derives its name from two Supreme Court cases in which efforts to obtain or influence governmental actions were held immune from antitrust scrutiny. In the first of these cases, Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), the Supreme Court held that an allegedly malicious and fraudulent campaign to pass anti-competitive legislation could not form the basis for a Clayton Act claim. Relying on legislative history of the Sherman Act as well as the first amendment right to petition the government, the court held that bona fide action to influence legislation is a form of protected activity, even if “the sole purpose in seeking to influence the passage and enforcement of laws is to destroy the [plaintiffs] as competitors____” Id. at 138-39, 81 S.Ct. at 530. The principle was then reaffirmed in United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965): “[j]oint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition.” Id. at 670, 85 S.Ct. at 1593. Litigation against competitors is considered a form of petition for redress within the meaning of this doctrine. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 611, 30 L.Ed.2d 642 (1972). Despite the strong first amendment concerns in protecting the right of petitioning the government, the courts have consistently held that litigation which is based on intentional falsehoods or on knowingly frivolous claims does not enjoy the antitrust immunity conferred by the Noerr-Pennington doctrine. See California Motor Transport, 404 U.S. at 513, 92 S.Ct. at 613; MCI Communications Corp. v. AT & T, 708 F.2d 1081, 1155-56 (7th Cir.), cert. denied, 464 U.S. 891, 104 S.Ct. 234, 78 L.Ed.2d 226 (1983). The rationale of these cases is that activity “ostensibly directed toward influencing governmental action” may come under antitrust scrutiny if the so-called petitioning amounts to a “mere sham” directed towards interfering with the business relationships of a competitor. Noerr Motor Freight, Inc., 365 U.S. at 144, 81 S.Ct. at 533. Even a single lawsuit or claim can be “sham litigation” actionable under the antitrust laws. MCI, 708 F.2d at 1154. Consistent with this rationale, the Seventh Circuit has repeatedly expressed the California Transport standard as centering around the genuineness of the defendant’s attempt to influence governmental action. See, e.g., MCI, 708 F.2d at 1156 (requisite motive for the “sham exception” to Noerr-Pennington immunity is intent to harm one’s competitors not by the result of litigation but by the simple fact of litigating); Havoco of America, Ltd. v. Hollobow, 702 F.2d 643, 650 (7th Cir.1983) (anti-competitive motive behind petitioning activity irrelevant so long as challenged action constitutes “a genuine attempt to influence governmental action.” The principle is perhaps nowhere more clearly expressed than in the Seventh Circuit’s prior decision in this case. Grip-Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466 (7th Cir.1982), cert. denied, 461 U.S. 958, 103 S.Ct. 2430, 77 L.Ed.2d 1317 (1983). The Court held that a lawsuit might be actionable under the antitrust laws even though supported by probable cause. Drawing on analogies between “sham litigation” and the common law tort of abuse of process, Judge Posner expressed the distinction as follows: This is not to say that litigation is actionable under the antitrust laws merely because the plaintiff is trying to get a monopoly. He is entitled to pursue such a goal through lawful means, including litigation against competitors. The line is crossed when his purpose is not to win a favorable judgment against a competitor but to harass him, and deter others, by the process itself — regardless of outcome — of litigating. 694 F.2d at 472. Because Judge Parsons had granted summary judgment on a different rationale, however, the Court reversed without examining whether that line had been crossed in this case. Defendant maintains that plaintiffs have not demonstrated, and cannot demonstrate, that it did not truly seek a judgment in its favor in filing the Lake County suit. The weight of the evidence certainly supports ITW. ITW’s executives have consistently testified that the purpose of the Lake County suit was to protect secrets and confidences which they felt Kovac and Cunningham (particularly Kovac) had knowingly breached. The evidence further suggests that the ITW employees knew at the time they filed suit that Grip-Pak I and II bore certain resemblances to unmarketed ITW concepts which Kovac undoubtedly knew about in the course of his work as an ITW patent attorney. There is no direct evidence that these executives deliberately filed suit with knowledge that the suit was baseless in law or in fact; and both Cunningham and Kovac admitted at their depositions that, to their knowledge, ITW truly sought to win the Lake County suit. Plaintiffs nonetheless offer the following evidence to support the inference of such bad faith. First, plaintiffs claim that ITW representatives met with Kovac and/or Cunningham many times prior to May 1973 to discuss the possible licensing of GripPak I and II but only once during those meetings insinuated that these products properly belonged to ITW. Suit was instead filed only after the McCormick Place trade show; the timing lends credence to plaintiffs’ allegation that the suit was intended, at least in part, to cast a cloud over plaintiffs’ activities as well as to get a judgment against them. Beart testified in his deposition that he only became concerned about Grip-Pak when he discovered that Kovac and Cunningham were showing the “secret” product to the public at the trade show. Plaintiffs have evidence, however, that Beart knew as early as December 1971 that Kovac and Cunningham were disclosing Grip-Pak I to potential customers, and knew by November of 1972 that Kovac had shown Grip-Pak II to both Anheuser-Busch and Union Carbide. Second, plaintiffs have produced affidavits from some ITW employees who claim that some of the so-called trade secrets allegedly stolen were commonly regarded by ITW employees as not trade secrets due either to abandonment, public disclosure, or lack of commercial utility. Third, plaintiffs note that ITW had no actual knowledge of wrongdoing on the part of PI but named it as a co-defendant because of its ongoing commercial relationship with Grip-Pak. Fourth, ITW executives probably knew at the time of filing suit that Cunningham, and not Kovac, was the inventor of GripPak I and II, and that Cunningham had left ITW before the Ron Owen invention, on which Grip-Pak II was allegedly based, had been reduced to paper. Fifth, in deciding whether to appeal the trial court’s decision, ITW’s lawyers expressly considered how appealing or not appealing would affect Grip-Pak’s present and future ability to market Grip-Pak II and other competitive products. The plaintiffs have also argued other evidence, most of which is irrelevant. For example, plaintiffs rely extensively on the factual findings of the state trial and appellate courts that ITW had “no” evidence of an actual breach of confidence. These findings, however, are only marginally relevant, if at all, to what ITW reasonably believed at the time it filed suit. See California Motor Transport, 404 U.S. at 513, 92 S.Ct. at 613 (opponents readily call other side’s claims “baseless”); Handgards, Inc. v. Ethicon, Inc., 743 F.2d 1282, 1292 (9th Cir.1984), cert. denied, 469 U.S. 1190, 105 S.Ct. 963, 83 L.Ed.2d 968 (1985) (fact that litigant lost a prior suit does not establish that the suit was brought in bad faith). The facts are particularly irrelevant here, since the same courts which made these remarks declined to award Grip-Pak its legal fees for defending a “bad faith” suit. Plaintiffs have also offered evidence of other anticompetitive acts to bolster their claim of bad faith: specifically, the evidence of ITW's patent acquisitions and enforcement efforts, including one patent which ITW employees acknowledged as a spurious modification of an old patent, and an infringement suit that ITW lost against Ray Brunsing. ITW threatened some other competitors with patent suits and, in so doing, successfully kept those competitors out of the market. There is no evidence, however, that these threats were baseless or that the lost infringement suit was brought in bad faith. Plaintiffs argue that these other acts are relevant in that the Lake County suit was a constituent part of an overall scheme to monopolize and is therefore not immune under Noerr-Pennington. This argument misstates the law. In Pennington, the Supreme Court held that genuine efforts to influence governmental action are not illegal “either standing alone or as part of a broader scheme itself violative of the Sherman Act.” 381 U.S. at 670, 85 S.Ct. at 1593 (emphasis added). The cases relied on by plaintiffs simply stand for the unremarkable proposition that petitioning activity which is part of an overall illegal scheme cannot confer immunity on the defendant’s other, unprotected, activities. See Clipper Express v. Rocky Mountain Motor Tariff Bureau, 690 F.2d 1240, 1263 (9th Cir.1982), cert. denied, 459 U.S. 1227, 103 S.Ct. 1234, 75 L.Ed.2d 468 (1983). The chief cas