Full opinion text
MEMORANDUM HIGGINS, District Judge. Pursuant to Rules 50(b) and 59(a), Fed. R.Civ.P., the Court has before it the motion of defendant Pelikan, Inc., for judgment notwithstanding the verdict or, in the alternative, a new trial (filed April 8, 1991; Docket Entry No. 246), and an accompanying memorandum in support thereof (filed April 8, 1991; Docket Entry No. 247). On May 1, 1991, Smith Corona Corporation filed a memorandum in opposition to Peli-kan’s motion (Docket Entry No. 260). Thereafter, Pelikan submitted a reply memorandum (filed May 15,1991; Docket Entry No. 270). In addition, the Court has before it Smith Corona’s motion for increased damages and prejudgment interest (filed March 25, 1991; Docket Entry No. 242); Smith Corona’s motion for interim damages (filed March 25, 1991; Docket Entry No. 240); Smith Corona’s motion for post-trial discovery regarding damages (filed March 25, 1991; Docket Entry No. 239); Smith Corona’s motion for post-trial discovery regarding Pelikan’s changed products and packaging (filed April 24, 1991; Docket Entry No. 254); Pelikan’s motion to clarify injunction (filed March 29, 1991; Docket Entry No. 245); and Pelikan’s motion to continue stay of injunction (filed May 29, 1991; Docket Entry No. 274). For the reasons stated below, the Court denies Pelikan’s motion for JNOY/new trial, and assesses damages. I. FACTS. This is a civil action in which Smith Corona sued Pelikan. for injunctive relief and damages for infringement of one utility patent (No. 4,900,171) and two design patents (Nos. Des. 308,070 and Des. 310,384) in violation of the patent laws of the United States, 35 U.S.C. §§ 1, et seq., and for unfair competition and false or deceptive advertising under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and the Tennessee Consumer Protection Act, Tenn. Code Ann. §§ 47-18-101, et seq. Proof at trial revealed the following facts. Smith Corona is a manufacturer of typewriters and typewriter ribbons for use in the equipment it markets. Smith Corona also makes and markets correction tapes, in spools and cassettes, used to correct the mistakes made by the typewriter during its use. Pelikan manufactures typewriter ribbons and correction tapes for use in equipment manufactured by others, including Smith Corona. Generally, these ribbons and correction tapes are sold as replacements for the supplies sold by the original equipment manufacturers. In the replacement market for typewriter ribbon and correction tapes, Smith Corona and Pelikan are direct competitors as to supplies for Smith Corona typewriters. Typewriter ribbons come in two varieties: multi-strike ribbon and single strike film. As a consequence, correction tapes also come in two varieties: cover-up type and lift-off type. Lift-off correction tape is compatible with single strike film, but is ineffective with multi-strike ribbon. Coverup correction tape is needed when multi-strike ribbon is used. In 1988, Smith Corona began manufacturing and marketing ink ribbon cassettes and correction tape cassettes for use in its typewriters advertised as having the “Right Ribbon System” feature. The “Right Ribbon System” feature was developed to ensure that the operator would always use compatible ink ribbon and correction cassettes in a Smith Corona typewriter. Smith Corona’s ’171 utility patent as a whole covers the use of matching structural attributes on the ink ribbon cassette and the correction cassette which ensure compatibility between these cassettes when used in the typewriter. One of the attributes patented is a tab on the ribbon cassette which, when passing through a corresponding notched opening on the roof-like structure of the compatible correction cassette, engages a switch on the typewriter itself. Smith Corona’s ’070 and ’384 design patents cover the physical appearance of the correction cassette. In the summer and fall of 1988, Pelikan began manufacturing and marketing ink ribbon and correction cassettes for use in Smith Corona typewriters equipped with the “Right Ribbon System” feature. Peli-kan’s ink ribbon cassettes contained the same structural attributes as Smith Corona’s ink ribbon cassettes, i.e., a tab on the left side for multi-strike ribbon and a tab on the right side for single strike film. At this time, the ’171 utility patent had not been issued by the Patent and Trademark Office. However, after the issuance of the ’171 utility patent, Pelikan continued to manufacture its ink ribbon cassettes with the same structural attributes as Smith Corona’s cassettes. Also, prior to the issuance of the three patents-in-issue Pelikan manufactured its correction tape cassettes with the same structural attributes as Smith Corona’s correction tape cassettes, i.e., a notch on the left side for cover-up correction cassettes and a notch on the right side for lift-off correction cassettes. In September of 1989, however, Pelikan learned that Smith Corona had applied for a European patent disclosing the same invention as claimed in its application for the ’171 utility patent. Upon learning of this application, Pelikan altered the design of its correction cassettes, placing two openings in the roof-like structure of its correction cassettes. This alteration, allowed the user to mismatch a Pelikan correction cassette with the incorrect ink ribbon cassette. As one of its claims, Smith Corona alleged at trial that Pelikan willfully infringed the ’171 utility patent by making, using and selling ink ribbon cassettes embodying the patented invention of the ’171 utility patent, and by actively inducing others to infringe. Specifically, Smith Corona alleged that Pelikan’s ink ribbon cassettes infringed claims 11-15 of the ’171 utility patent. Claim 11 of the ’171 utility patent reads as follows: 11. A ribbon cassette for a system including a device utilizing a ribbon cassette and a correction tape cassette having a correction tape which are inserted into the device for the operation thereof, the device operating on a flow of electricity and including a switch for controlling the flow of electricity thereto, said ribbon cassette comprising: a housing having a bottom; an ink ribbon substantially disposed within said housing; and means on said ribbon cassette engaging an opening in the correction tape cassette to assure that said ribbon and the correction tape are functionally compatible, said assuring means conditioning the switch to control the flow of electricity to the device. See exhibit A to Pelikan’s motion for summary judgment (filed November 26, 1990; Docket Entry No. 36). Claims 12 and 13 are dependent on claim 11. Claim 14 is dependent on claim 13. Claim 15 reads as follows: 15. A ribbon cassette for a system including a device utilizing a ribbon cassette and a correction tape cassette having a correction tape, said ribbon cassette being inserted into the device for the operation thereof, said ribbon cassette comprising: a housing having a top surface and a bottom surface; an ink ribbon substantially disposed within said housing; and a tab portion extending from a specified side portion of the bottom surface of said ribbon cassette, said tab portion matingly engaging and extending through an opening located in a corresponding side portion of the correction tape cassette for assuring that said ink ribbon and the correction tape are functionally compatible and, in the event that said tab does not engage the opening, for indicating that said ribbon and the correction tape are not functionally compatible with each other. See id. Smith Corona also alleged that the Peli-kan correction cassettes infringed the ’070 and ’384 design patents. The trial was bifurcated on the issues of liability and damages. At the close of the evidence of the liability portion of the trial, the Court instructed the jury as follows: Claims 11-15 of the ’171 utility patent are drawn to the ribbon cassette alone, and not to the combination of the ribbon cassette, correction cassette and typewriter switch. References in claims 11-15 to the correction cassette and typewriter switch merely describe how the claimed invention functions in its intended environment and, thus, only constitute limitations to the claims for the purposes of distinguishing prior art. Jury instructions (filed March 13, 1991; Docket Entry No. 213), p. 30. This instruction was given to the jury based on the Court’s reading of In re Stencel, 828 F.2d 751 (Fed.Cir.1987). After a period of deliberation, the jury found that 1) the three patents-in-issue were not invalid; 2) that Pelikan had infringed the three patents; 3) that Pelikan had induced others to infringe these patents; 4) that this infringement had been willful; 5) that Pelikan’s advertising was false, misleading and deceptive in violation of Section 43 of the Lanham Act and in violation of the Tennessee Consumer Protection Act; and 6) that Pelikan’s false, misleading and deceptive advertising was willful. See verdict of the jury (filed March 1, 1991; Docket Entry No. 202). After further proof on the issue of damages, the jury returned its assessment of compensation. See compensatory damages verdict of the jury (filed March 13, 1991; Docket Entry No. 215). After accepting the verdict of the jury, the Court ordered the Clerk to reserve judgment entry for additional cost assessments regarding prejudgment interest and willfulness. See Clerk’s resume of Court proceedings (filed March 13, 1991; Docket Entry No. 214). On March 19, 1991, the Court entered an order (Docket Entry No. 237) which permanently enjoined Pelikan from 1) making, using or selling the products which the jury found had infringed the three patents-in-issue; and 2) using certain phrases in connection with its advertising, packaging and promotion of its products which the jury found had violated the Lan-ham Act and the Tennessee Consumer Protection Act. II. MOTION FOR JNOV. A. Standard of Review. In ruling on a motion for a directed verdict, the Court must determine whether, considering the evidence in the light most favorable to the plaintiff and indulging in every reasonable inference favorable to the plaintiff, there is evidence from which the jury might rationally find a verdict in favor of the plaintiff. See Cecil Corley Motor Co., Inc. v. General Motors Corp., 380 F.Supp. 819, 827 (M.D.Tenn.1974). If there is evidence from which a reasonable jury could return a verdict in favor of the plaintiff, the motion for a directed verdict must be denied. The accepted standard for determining whether a jury verdict should be set aside and judgment entered in favor of the moving party is essentially the same as a motion for a directed verdict, i.e., to look at all the evidence, to take as true the evidence for the plaintiff, to discard all countervailing evidence, to take the strongest legitimate view of the evidence for the plaintiff, to allow all reasonable inferences from it in his favor; and if then there is any dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence, the motion ... must be denied. Chumbler v. McClure, 505 F.2d 489, 491 (6th Cir.1974) (citation omitted). There are various formulations of this test as reflected in Morelock v. NCR Corp., 586 F.2d 1096, 1104 (6th Cir.), cert. denied, 441 U.S. 906, 99 S.Ct. 1995, 60 L.Ed.2d 375 (1979). But, in sum, the issue to be determined is “whether there is sufficient evidence to raise a question of fact for the jury. [Citation.] [T]he trial court may neither weigh the evidence, pass on the credibility of witnesses nor substitute its judgment for that of the jury.” Id. The motion should not be granted unless the evidence is uncontradicted and a reasonable mind could only draw one conclusion from the evidence. See Green v. Francis, 705 F.2d 846, 849 (6th Cir.1983). B. Issues Presented. 1. In re Stencel. As the crux of its JNOV motion, Pelikan argues that “this Court applied a strained and improper interpretation of Stencel ... concluding and improperly instructing the jury that Claims 11-15 [of the ’171 utility patent] are drawn to an ink ribbon cassette alone.” Pelikan’s brief in support of JNOV motion, p. 14. Pelikan first made this argument in its brief in support of its motion for summary judgment (filed November 26, 1990; Docket Entry No. 36), in which Pelikan argued that claims 11-15 are drawn to a combination of the ink ribbon cassette, correction cassette and typewriter switch. See Pelikan's brief in support of summary judgment motion, pp. 36-45. As a consequence of finding that claims 11-15 are drawn to this combination, Pelikan argues that it did not infringe the ’171 patent because it manufactured only one component of the combination. See Pelikan’s brief in support of JNOV motion, p. 12 (“Pelikan’s print ribbon cassette cannot meet these limitations without the presence of a correcting cassette or a device having an on-off switch”); see also Pelikan’s brief in support of summary judgment motion, pp. 37-38 (“[bjecause these claims are for a combination, Peli-kan’s manufacture and sell [sic] of an un-patented ribbon cassette of cooperative components cannot, as a matter of law, constitute infringement of the ’171 patent.”). In support of this argument, Pelikan primarily relies, as it did in its motion for summary judgment, on Wells Manufacturing Corp. v. Littlefuse, Inc., 547 F.2d 346 (7th Cir.1976) and Shure Brothers, Inc. v. Korvettes, Inc., 198 U.S.P.Q. (BNA) 283 (N.D.I11.1978), two cases which predate the creation of the Federal Circuit. After reviewing Wells Manufacturing, Shure Brothers, Stencel, and the other cases cited by the parties, the Court remains convinced that, based on its interpretation of Stencel, “[patentability can be predicated upon how a claimed item mates with another item without claiming the combination of the two items.” Smith Corona’s memorandum in opposition to summary judgment motion (filed December 19, 1990; Docket Entry No. 47), p. 23 (emphasis in original). In Shure Brothers, the District Court for the Northern District of Illinois considered, in part of its opinion, two patents, owned by Shure Brothers, which covered phonograph needles. Korvettes argued that the claims in these two patents were really claims for a combination of a needle (an “armature-stylus subassembly”) and a magnetic pick-up cartridge into which the needle fits. Korvettes argued that “since these claims refer to a combination, and Korvettes sells only one unpatented part, then as a matter of law, no infringement could be proved.” Shure Brothers, 198 U.S.P.Q. at 285. The district court agreed. Each of the relevant claims in the two patents owned by Shure Brothers began with the following preamble: An armature-stylus subassembly for a magnetic pickup cartridge comprised of two electromagnetic systems each terminating in a pair of spaced-apart pole pieces arranged to describe a common magnetic gap and to form a socket having a recess substantially co-extensive with said gap; said subassembly com-prising____ Id. at 286-87. Each claim then describes the subassembly. The district court first found that, because the descriptions of the subassembly all referred to the above-quoted preamble, “[t]hese descriptions [were] not understandable without reference to the preambles.” Id. at 287. The district court further found that the preambles as quoted above had been inserted into the patent applications in order to distinguish the pri- or art. See id. “This additional language was apparently necessary in order to overcome a rejection on the basis of prior art by the Patent Office Examiner.” Id. After considering arguments made by Shure Brothers during the prosecution of the patents, the district court concluded that it was “evident that in its presentation to the Patent Office, the plaintiff stressed the cooperative relationship of the total combination of the cartridge with the armature-stylus subassembly.” Id. The district court then quoted the decision of the Seventh Circuit Court of Appeals in Wells Manufacturing: [i]f the preamble merely states a purpose or intended use and the remainder of the claim completely defines the invention independent of the preamble, it is not a limitation on the claims. On the other hand, if the claim cannot be read independently of the preamble and the preamble must be read to give meaning to the claim or is essential to point out the invention, it constitutes a limitation upon the claim. Shure Brothers, 198 U.S.P.Q. at 288 (quoting Wells Manufacturing, 547 F.2d at 353). Applying Wells Manufacturing, the district court found that “it is apparent that these should be considered as combination claims____ This interpretation is mandated by the fact that the body of the claims cannot be read independently of the preambles, and because the patent descriptions and filing history indicate that the invention was a combination.” Id. Wells Manufacturing also stands for the following rule of claim construction: that if (1) the claim elements can be understood “only with reference to the interrelationship of the elements” to the parts of the environment in which the elements are used, see Wells Manufacturing, 547 F.2d at 353, and (2) the “inventive quality” of the claim lies in that interrelationship, see id,., then (3) the claim must be for a combination of the elements with the parts of the environment. See id. at 354. At trial, Smith Corona argued that the rule of Wells Manufacturing and the result of Shure Brothers has been rejected by the Federal Circuit Court of Appeals in In re Stencel, supra, and that patentability can be predicated upon how a claimed item mates with another without claiming a combination. The Court agreed. In Stencel, the plaintiff appealed the decision of the PTO Board of Patent Appeals, which had affirmed the rejection of his patent application for obviousness based on a combination of prior art patents. Sten-cel’s patent application was for a triangular “driver,” which when inserted into a lobed “collar,” could turn the collar so as to lock the collar and a hexagonal bolt together. Similar to the preambles in Shure Brothers, the preamble of the relevant claim in Stencel read as follows: 1. A driver for setting a joint of a threaded collar, a threaded pin, and at least one sheet, the collar having plasti-cally deformable lobes on its longitudinal exterior that upon the existence of a predetermined clamp-up load between the collar and the sheets plastically deform in radial compression and displace material of the collar into void volumes between the collar and the pin to lock the two together and terminate the action of the driver on the collar, the driver comprising. ... Stencel, 828 F.2d at 752-53. Like claim 11 of the ’171 utility patent in this case, one of the four elements of Stencel’s claim was a means element which referred to the collar as described in the preamble. At the PTO Board of Patent Appeals, Stencel argued that the prior art did not teach how to construct a driver usable with Stencel’s collar. While the PTO Board of Patent Appeals agreed that “ ‘there is a fundamental difference between the failure mechanism effected by the driver disclosed in the [prior art] from that disclosed in the present application,’ ” Stencel, 828 F.2d at 754 (quoting the opinion of the PTO Board of Appeals), the Board affirmed the rejection because “ ‘the claims here are directed to the driver per se and not to the action of the fastener during the tightening procedure.’” Id. (quoting the opinion of the PTO Board of Appeals) (emphasis added). On appeal before the Federal Circuit, the Commissioner of the PTO restated its position and argued that the limitations in the preamble were “not distinguishing feature^] of the driver, but of the collar.” Id. at 754. Stencel, however, argued that the structure of the driver as claimed is limited by the environment in which it was intended to function. See id. (“[a]ppellant points out that the driver as claimed is indeed limited as to structure, the limiting structure being defined by the structure of the collar.”). Clearly, the preamble of Stencel’s attempts to describe the interaction and relationship between the driver, the collar and the bolt (i.e., the “pin”). Yet, like the patent examiner and the Board of Patent Appeals, the Federal Circuit construed the patent as claiming the driver alone, and not a combination of the driver and the collar. See id. at 752 (“[t]he claimed invention relates to a driver that is adapted to set a joint with a particular threaded collar.”) (emphasis added). In reversing the PTO Board of Appeals, the Federal Circuit accepted Stencel’s argument, stating that [a]s a matter of claim draftsmanship, appellant is not barred from describing the driver in terms of the structure imposed upon it by the collar having plastically deformable lobes. The framework — the teachings of the prior art— against which patentability is measured is not all drivers broadly, but drivers suitable for use in combination with this collar, for the claims themselves are so limited. Id. (emphasis added). While the Federal Circuit did use the phrase “for use in combination with this collar,” it is clear from the opinion that the Court did not find Stencel had claimed the combination of the driver and collar in his patent application. As stated above, the Federal Circuit began its opinion by noting that “[t]he claimed invention relates to a driver____” Id. at 752 (emphasis added). Further in its opinion, the Federal Circuit stated that “Stencel is not inhibited from claiming his driver, limited by the statement of its purpose, and further defined by the remaining clauses of the claims at issue, when there is no suggestion in the prior art of a driver having the claimed structure and purpose.” Id. at 755 (emphasis added). Thus, under Stencel, an applicant may define and limit an invention in terms of that invention’s intended environment without claiming the environment as part of a combination with the invention. As the Court stated on the record, the Court believes that Stencel has overruled the method of analysis utilized in Wells Manufacturing, despite , the fact that the Federal Circuit did not cite that case. Had the Federal Circuit applied the Wells Manufacturing analysis to the Stencel claim, it would have concluded either (a) that the Stencel claim was directed to the combination of the driver and the collar, or (b) that the Stencel claim could not rely on the interaction of the driver with the collar to support patentability of a claim to the driver alone. The Federal Circuit did neither. Following its reading of Stencel, this Court held at trial that claims 11 and 15 of the ’171 utility patent do exactly what the Stencel claim did, i.e., describe a device in terms of the structure imposed upon it by its intended environment and desired function. The Court does not retreat from this ruling. Like Stencel’s claimed invention, claims 11-15 of the ’171 utility patent do not claim all typewriter ink ribbon cassettes broadly, but ink ribbon cassettes designed to function in the described environment of compatible correction cassettes and typewriter switches. Thus, claims 11-15 are directed only to the ribbon cassette per se, as limited by the description of the “system” in the preambles of claims 11 and 15. This conclusion is further supported by the prosecution history of the ’171 utility patent. See Unique Concepts, Inc. v. Brown, 939 F.2d 1558, 1561 (Fed.Cir.1991) (“[t]o ascertain the meaning of claims, [a court must] consider three sources: the claims, the specification, and the prosecution history.”). When originally filed, Smith Corona’s patent application contained ten claims. See appendix to Smith Corona’s memorandum in opposition to summary judgment motion, pp. 891-893. Each of these claims were drawn to the entire system, i.e., the combination of the ribbon cassette, the correction cassette, and the switch on the typewriter. See id. These claims were rejected by the patent examiner. See id. at 898-908. In response to this initial rejection, Smith Corona filed an amendment to its application in which it added claims 11-24. See id. at 990, 999-1002. Of these additional claims, claims 11-16 recited “a ribbon cassette,” while claims 17-21 recited “a correction tape cassette.” See id. at 999-1001. In the amendment, the patent attorney who prosecuted the application twice represented to the patent examiner that “[a]s hereinafter noted, claims 11-16 relate to a first or ribbon cassette used in the system of the invention.” Id. at 1003 (emphasis added); see also id. at 1004 (“[applicants submit herewith additional claims 11-24 which are intended to more completely define the present invention. Claims 11-16 relate to a first or ribbon cassette____”) (emphasis added). In explaining the proper construction of claims 11-16, the patent attorney stated [cjlaims 11-16 are directed to a ribbon cassette having an ink ribbon, which is used in a system including a device utilizing a ribbon cassette and a correction tape cassette, the ink ribbon cassette having means engaging an opening in the correction tape cassette to assure that the ribbon and the correction tape are functionally compatible. It is respectfully submitted that neither the primary reference ... nor the secondary references [in the relevant prior art] disclose or suggest a ribbon cassette having means engaging an opening in a correction tape cassette for assuring that the ink ribbon in the first cassette and the correction tape in a second cassette are functionally compatible. The cited references, alone or combined together do not suggest or contemplate any means for assuring functional compatibility____ Id. at 1014 (emphasis added). Despite these amendments, the patent examiner again rejected Smith Corona’s application. See id. at 1019-1025. While this was a final rejection from the patent examiner, the examiner “suggested that upon suitable amendment to avoid the rejections thereof, and if claim 15 is rewritten as a formal independent claim which includes all of the limitations of its parent claim 11, claims 1-10, inclusive, 15, and 22-24, inclusive, will be reconsidered with a view towards allowance.” Id. at 1025. In response to this final rejection, Smith Corona filed a notice of appeal to the Board of Appeals. See id. at 1031. In furtherance of this appeal, Smith Corona again amended its application. See id. at 1032-1048. While it did not cancel claims 11-14 and claim 16 from its application, Smith Corona cancelled claim 15, and amended claim 11 to incorporate the subject matter of claim 15. See id. at 1034. Smith Corona acknowledged that, by incorporating claim 15 into claim 11, it was following the suggestion of the patent examiner. See id. at 1038. Claim 16, renumbered as claim 15, was also amended. See id. at 1034. The Court notes that, in its discussion of these amendments, Smith Corona again asserted that its new claim 15 recited a ribbon cassette. See id. at 1039 (“[c]laim 16 [renumbered as claim 15], claiming a ribbon cassette, and claim 21, claiming a correction cassette, have ... been amended to specify that the tab portion in claim 16 and the opening of claim 21 are placed on specified sides of the cassette housing to assure the functional compatibility of the cassettes.”) (emphasis added). Further, Smith Corona addressed the patent examiner’s rejection of claims 11-14 and 16-21 for obviousness in view of the prior art. Disagreeing with the patent examiner’s rejection, Smith Corona argued that [t]he present invention provides unique ink ribbon and correction tape cassettes, each having structure which assures functional compatibility of the ink ribbon cassette with the correction tape in the tape cassette. Furthermore, that same structure may also be used to condition a switch in the typewriter to activate that device only when such functional compatibility results. Id. at 1041 (emphasis in original). Smith Corona continued by emphasizing the differences between its claimed invention and the prior art, stating that while the prior art references may describe inventions “designed to secure the cassettes relative to each other for operation as a unit,” id. at 1044, “neither [of the prior art references] disclose or suggest the desirability of maintaining functional compatibility between the ink ribbon and correction tape cassettes.” Id. at 1047. Smith Corona’s claims, as amended, were allowed and the ’171 patent issued. Based on the file wrapper of this patent, the Court finds that, at all times during the prosecution of its application, Smith Corona represented to the patent examiner and to the Board of Appeals that claims 11-15 of the ’171 patent were drawn to a ribbon cassette having a “structure which assures functional compatibility of the ink ribbon cassette with the correction tape in the tape cassette.” Id. at 1041 (emphasis deleted). Further, nothing in file wrapper indicates that the patent examiner or the Board of Appeals construed these claims as reciting a combination between the ribbon cassette, the correction cassette, and the typewriter switch. Accordingly, the Court finds that the proper construction of claims 11-15 in the ’171 patent is to the ribbon cassette alone, and that its instruction to the jury on this issue was a correct statement of law. Pelikan relies on Gerber Garment Technology, Inc. v. Lectra Systems, Inc., 916 F.2d 683 (Fed.Cir.1990). The Court finds this case inapposite. In Gerber, the patent holder filed an original patent application for an automatic fabric cutting device which utilized a cutting apparatus and a means to hold the fabric in place during the cutting operation. Gerber, 916 F.2d at 684. This holding means employed the use of a vacuum to hold a multi-layered stack of fabric during the cutting of the fabric. Id. During the prosecution of the original patent application, the patent examiner imposed a restriction requirement between “ ‘Claims 1-11 and 16-28 drawn to the cutting apparatus’ and ‘Claims 12-15 drawn to the work holding means.’ ” Id. (quoting the patent examiner). Gerber elected to prosecute the claims drawn to the cutting apparatus and the patent issued as No. 3,495,492. After the issuance of the ’492 patent, Gerber prosecuted a continuation application for the work holding means. After four years of prosecution, the patent issued as No. 3,790,154. The issue before the Federal Circuit was whether claims 15 and 16 of the later ’154 patent were invalid for obviousness-type double patenting in view of claim 23 of the prior ’492 patent. The preamble of Claim 15 of the ’154 patent stated: [i]n a machine having a tool in the form of a cutting blade adapted to normally pass through and beyond an object in a cutting operation, an apparatus for holding the object in a rigid condition while it is worked on by the cutting blade, said apparatus comprising____ Id. at 685. Claim 16 was dependent upon claim 15. As one argument before the Federal Circuit, Gerber asserted that claims 15 and 16 of the ’154 patent were not invalid for obviousness-type double patenting because claim 15 “is directed to the subcombination of a work holding means [i.e., the vacuum holding device,] in the ‘environment’ of a machine having a cutting tool.” Id. at 688. The Federal Circuit disagreed. The Federal Circuit found that the cutting blade as mentioned in the preamble of claim 15 was “ ‘necessary to give meaning’ to claims 15 and 16 and ‘properly define the invention.’ ” Id. at 689 (citation omitted). The cutting blade appears not only in the preamble, but is referenced repeatedly in the body of the claim. It is integral to the claim itself____ Hence, the cutting blade is not merely an aspect of the claim environment, but an affirmative limitation of claim 15. Id. at 689. In arriving at this conclusion, however, the Federal Circuit cited to the prosecution history of the ’154 patent and noted that, in an amendment to its application, Gerber had “referred to the cutting blade as a limitation of claim 15 and relied on the cutting blade penetration of the support means to distinguish the prior art.” Id. Further, “[i]n its brief, Gerber agree[d] that the cutting blade may be a limitation without which there can be no infringement.” Id. No such concessions are made by Smith Corona now, nor were any made during the prosecution of its application. Therefore, Gerber is distinguishable on its facts. Pelikan also cites the testimony of Mr. Charles L. Gholz, Smith Corona’s expert witness, as support for its position. As stated above, claim 11 of the ’171 patent reads in part “means on said ribbon cassette engaging an opening in the correction tape cassette ... said assuring means conditioning a switch____” Mr. Gholz testified as to this portion of claim 11 as follows: MR. GHOLZ: [Claim 11 is not] an A-plus claim and it’s above an F claim. It’s a good deal above an F. This is a B — B-minus claim. It’s pretty good except for that one thing. THE COURT: What one thing? MR. GHOLZ: Leaving out the word “for.” THE COURT: Where leaving out the word for? MR. GHOLZ: In the last paragraph, “means on said ribbon cassette for engaging an opening in the correction tape cassette to assure that said ribbon and the correction tape are functionally compatible.” If it said that, we wouldn’t have this dispute. Trial transcript of February 15, 1991 (filed March 15,1991; Docket Entry No. 221), pp. 780-81. Mr. Gholz testified further that “this is a little embarrassing but when I read it, I read right through it and read the word ‘for’. I assumed it was there and you had to point out to me that it actually wasn’t there. I expected it to be there.” Id. at 782. Pelikan argues that [t]he admission by Smith Corona’s expert that the claim required the insertion of the word “for” before the word “engaging” in Claim 11 is significant in light of that witness’ further opinion that a claim should be interpreted based upon the “plain meaning” of the language of the claim____ The language of claim 11 is plain and unambiguous. Thus, the insertion of the word “for” is not required for clarity and is inconsistent with the statements made by Smith Corona to the patent examiner for purposes of patentability- Pelikan’s brief in support of JNOV motion, p. 14. The fact remains, however, that the word “for” was not present in the means element of the patent-in-issue in In re Stencel. In Stencel, the appellant’s claim read “means on body to receive a wrenching torque applied to the driver____” Stencel, 828 F.2d at 753. The claim did not say “means on body for receiving____” Nevertheless, the Federal Circuit stated that “[t]he claimed invention relate[d] to a driver,” id. at 752, rather than finding that the invention recited a combination of the driver and the collar. Therefore, the Court finds that the absence of the word “for” in claim 11 is insufficient to find that the claim describes a combination. Finally, Pelikan argues that, even if the Court’s interpretation of claims 11-15 is correct, a JNOV still must be awarded because, those claims are invalid in view of the prior art, see Pelikan’s brief in support of JNOV motion, p. 15-16, and because Pelikan’s ribbon cassette, in and of itself, cannot infringe the ’171 patent. See id. at 16-17. The Court disagrees. As stated above, based on the evidence at trial, the jury found that claims 11-15 of Smith Corona’s ’171 patent were not invalid in view of the prior art, and further found that Peli-kan’s ribbon cassette infringed the ’171 patent. The Court finds that there was sufficient evidence in the record for these conclusions. 2. Other Claims. Pelikan states six other grounds in support of its JNOV motion: the evidence did not support the finding of actively inducing infringement of claims 11-15 of the ’171 patent; the evidence did not support the finding of contributory infringement; the evidence did not support the finding of infringement of the ’070 and ’384 design patents; the evidence did not support the finding of willful infringement; the evidence did not support the finding of false advertising under federal or state law; and the evidence did not support the damage award of the jury. See Pelikan’s brief in support of JNOV motion, pp. 18-46. Without reviewing here each and every evidentiary item offered at trial, the Court notes that Pelikan’s arguments on these issues — many of which were raised at trial — hinge on an alleged insufficiency of the evidence and credibility of witnesses. In light of the high standard which a movant must meet for JNOV relief and after reviewing the record, the Court finds that Pelikan’s arguments are not compelling. The Court finds that there was sufficient evidence in the record to sustain the verdict of the jury on these issues. Accordingly, the Court finds that Pelikan’s motion for judgment notwithstanding the verdict should be denied. III. MOTION FOR NEW TRIAL. A. Standard of Review. Like a JNOV motion, “[t]he decision to grant or deny motions for a new trial ... is discretionary with the district court.” Davis by Davis v. Jellico Community Hospital, Inc., 912 F.2d 129, 123 (6th Cir.1990). Further, “[i]n ruling upon a motion for a new trial based on the ground that the verdict is against the weight of the evidence, a district judge must compare the opposing proofs and weigh the evidence and ‘it is the duty of the judge to set aside the verdict and grant a new trial, if he is of the opinion that the verdict is against the clear weight of the evidence____’ [T]he jury’s verdict should be accepted if it is one which could reasonably have been reached.” Bruner v. Dunaway, 684 F.2d 422, 425 (6th Cir.), cert. denied, 459 U.S. 1171, 103 S.Ct. 816, 74 L.Ed.2d 1014 (1983) (quoting TCP Industries, Inc. v. Uniroyal, Inc., 661 F.2d 542, 546 (6th Cir.1981); other citations omitted). After reviewing the proof in this case, the Court finds that the verdict of the jury was reasonable in all respects and not against the clear weight of the evidence. B. “Bad Faith” Trial Tactics of Smith Corona. As its first basis for its motion for a new trial, Pelikan argues that counsel for Smith Corona employed “bad faith litigation tactics,” Pelikan’s brief in support of JNOV motion, p. 51, the cumulative effect of which “confused and overwhelmed” the jury and constituted “ ‘extreme and outrageous’ conduct” to Pelikan’s prejudicial detriment. Id. at 66. The Court disagrees. As evidence of Smith Corona’s improper trial tactics, Pelikan points to a variety of leading questions asked by the plaintiff’s counsel; allegedly nonresponsive and gratuitous comments made by witness for Smith Corona; the statements of Smith Corona’s two expert witnesses, portions of which were identical; Smith Corona’s allegedly improper use of evidence; and allegedly improper closing statements made by the plaintiff’s counsel at the close of the liability phase of the trial, and opening statement made at the beginning of the damages phase. Regarding certain leading questions and the opening and closing arguments put forth by counsel for Smith Corona, the Court notes that it promptly and properly provided curative instructions to the jury when it deemed such instructions necessary. Indeed, before the opening arguments of counsel, the Court advised the jury that certain things are not evidence and must not be considered by you____ First the statements, the arguments and questions by lawyers are not evidence. The questions are not evidence. It is the answers that constitute the evidence. Secondly, the objections to questions are not evidence. Lawyers have a duty to their clients to make objections when they believe evidence being offered is improper____ You should not be influenced by the objection or by the Court’s ruling on the objection. Now, the third thing that is not evidence and you must not consider is any testimony that the Court has excluded or told you to disregard____ Now, we are going to begin the trial of this case with the opening statements of the lawyers. We will hear first from the plaintiff and then from the defendant. Now, these opening statements are not evidence. Remember the questions, arguments and statements of the lawyers are not evidence. There is nothing to argue about now because there simply isn’t any evidence yet____ The opening statement is intended for your benefit and it is important. It’s designed to give you a road map or a blueprint so that you will understand the contentions of each side of the lawsuit [and] so that you can follow the proof as it unfolds during the trial of the case. Trial transcript of February 12, 1991 (filed March 15,1991; Docket Entry No. 218), pp. 5-10. Additionally, in its formal charge to the jury in both the liability and damages phases, the Court instructed the jury that it was to base its verdict “solely upon the testimony and evidence in the case [and] that any statements, objections, or arguments made by the lawyers are not evidence in the case.” Jury instructions, p. 2; compensatory damages instructions (filed March 13, 1991; Docket Entry No. 212), p. 2. The Court further instructed the jury that “sympathy or hostility must not enter into your deliberation as jurors no matter what your sympathy or hostility may lead you to think. Sympathy or hostility has no place in the trial of a lawsuit, or in the making up of your minds as to what your verdict shall be.” Jury instructions, p. 72. Juries are presumed to follow the instructions given to them by the trial court. See generally Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 2139, 60 L.Ed.2d 713, 723 (1979) (prisoner habeas corpus action); see also id., 442 U.S. at 75 n. 7, 99 S.Ct. at 2140 n. 7, 60 L.Ed.2d at 724 n. 7 (“[t]he ‘rule’ — indeed, the premise upon which the system of jury trials functions under the American judicial system — is that juries can be trusted to follow the trial court’s instructions”). “Were this not so, it would be pointless for a trial court to instruct a jury____” Id. 442 U.S. at 73, 99 S.Ct. at 2139, 60 L.Ed.2d at 723. After reviewing the instructions recited above, and the incidental instructions given during the trial, the Court finds no reason to believe that the jury was either “confused” or “overwhelmed.” This was a hard-fought trial in which counsel for both parties zealously advocated the positions of their respective clients. While the proceedings were quite acrimonious at times, the Court finds that none of the conduct cited by Pelikan, even viewed from a cumulative perspective, rises to such a prejudicial level as to warrant a new trial. Had it been otherwise, the Court would have ordered a mistrial. Regarding the allegedly nonresponsive comments of some Smith Corona witnesses, and the identical statements of Smith Corona’s experts, the Court believes that such matters are fair game for cross examination, rebuttal proof, and closing arguments. Pelikan does not show, and the Court cannot find, any unfair prejudice as a result of these statements. Finally, regarding Smith Corona’s allegedly unfair use of evidence, Pelikan cites two instances in which Smith Corona attempted to introduce improper evidence at trial. See Pelikan’s brief in support of JNOV motion, pp. 52-57. However, on both those occasions, the Court sustained Pelikan’s objections and ruled the proffered exhibits inadmissible. Pelikan can hardly argue that it was prejudiced by these rulings. As a third instance of Smith Corona’s allegedly improper use of evidence, Pelikan cites Smith Corona’s use of a trade show transparency as an example of its advertising of the Right Ribbon System. See id. at 57-60. Here again, however, Pelikan acknowledges that it cross-examined Smith Corona’s witness on this issue and elicited testimony tending to show that the exhibit was not representative of Smith Corona’s public advertising. Thus, Pelikan suffered no harm. C. The ’171 Patent Instruction. As with its motion for a JNOV, Pelikan argues that the Court’s instruction in regard to the construction of . the ’171 patent was improper and that a new trial should be granted. For the reasons stated above, the Court rejects this argument. D. Design Patent Infringement. Pelikan urges four grounds for a new trial on the issue of design patent infringement. The Court finds none of these grounds compelling. As its first ground, Pelikan argues that the Court improperly allowed the testimony of Mr. Robert DiPaolo, an allegedly unqualified expert witness. The Court disagrees. Under Rule 702, Fed.R.Evid., the Court may admit into evidence the testimony of an expert witness “if scientific, technical, or other specialized knowledge will assist the trier of fact____” However, the Court “has broad discretion in admitting and excluding expert testimony. Mayhew v. Bell Steamship Co., 917 F.2d 961, 962 (6th Cir.1990). See also Hanson v. Parkside Surgery Center, 872 F.2d 745, 750 (6th Cir.), cert. denied, 493 U.S. 944, 110 S.Ct. 349, 107 L.Ed.2d 337 (1989). Further, as the Advisory Committee’s notes explain, “[wjhether the situation is a proper one of the use of expert testimony is to be determined on the basis of assisting the trier.” See also Mannino v. International Manufacturing Co., 650 F.2d 846, 849 (6th Cir.1981). The Court finds that it properly exercised its discretion in allowing Mr. DiPaolo to testify, as he was qualified to render an opinion on the issue of design patent infringement and his opinion would assist the jury on the issue of design infringement. The Court notes that counsel of Pelikan reviewed Mr. DiPaolo’s background extensively on cross-examination. Any deficiencies in his qualifications were proper points for closing argument and consideration by the jury. Indeed, the Court instructed the jury that expert opinions “should be carefully weighed ... with regard to the expert’s education, training, experience, and sources of knowledge____” Jury instructions, p. 11. The Court finds no unfair prejudice due to Mr. DiPaolo’s testimony. As its second and third grounds for a new trial, Pelikan argues that Smith Corona structured its design patent infringement case around an improper “strip away” legal theory which misled and confused the jury, and improperly expanded this theory with the rebuttal testimony of its expert Mr. Charles Curley. This argument is meritless. As the Court instructed the jury, a design patent is invalid if the attributes claimed are primarily functional. This is not to say that a design patent is invalid when the decorative attributes claimed are part of a utilitarian item, or when the decorative attributes claimed serve some functional role. Rather, a design patent is invalid if the function of the utilitarian item dictates a design in order for the item to perform its intended purpose. Jury instruction, pp. 57-58 (emphasis in original). The Court based this instruction upon Avia Group International, Inc. v. L.A. Gear California, Inc., 853 F.2d 1557, 1563 (Fed.Cir.1988), and Smith Corona’s theory conformed with this statement of law. Pelikan simply makes the conclusory statement, without citing proof or precedent, that it was prejudiced by this theory and by Mr. Curley’s testimony. The Court finds no unfair prejudice. Finally, Pelikan argues that the Court misinstructed the jury with the following charge: One factor to consider with respect to Pelikan’s good faith and due care in determining the infringement and validity issues is whether Pelikan obtained and followed competent legal advice from counsel after having actual notice of Smith Corona’s patent and before beginning the allegedly infringing activities, or, if such activities had already begun when Pelikan received actual notice of Smith Corona’s patent, before continuing the allegedly infringing activities. A good faith opinion means an opinion based on a reasonable examination of the facts and law relating to the validity and infringement issues, consistent with the standards and practices generally followed by competent lawyers. Moreover, you should consider whether Pelikan actually relied upon and followed its counsel’s opinion. To the extent that Pelikan has put into evidence no opinion of counsel on any issue, you may infer that either no legal advice was sought on that issue or that such advice was sought and the advice was adverse to Pelikan’s interest. Jury instructions, pp. 61-62. Specifically, Pelikan objects to the second paragraph of the above instruction, arguing that “the law simply does not require a written opinion of counsel to avoid a finding of willfulness.” Pelikan’s brief in support of JNOV motion, p. 72. This instruction was based on Fromson v. Western Litho Plate and Supply Co., 853 F.2d 1568 (Fed.Cir.1988), in which the Federal Circuit stated that “[wjhere the infringer fails to introduce an exculpatory opinion of counsel at trial, a court must be free to infer that either no opinion was obtained or, if an opinion were obtained, it was contrary to the infringer’s desire to initiate or continue its use of the patentee’s invention.” Fromson, 853 F.2d at 1572-73. Thus, while the law may not require an opinion of counsel, written or otherwise, see, e.g., Rolls-Royce Limited v. GTE Valeron Corp., 800 F.2d 1101, 1109 (Fed.Cir.1986), it is quite clear that a jury is permitted to draw negative inferences from the lack of such an opinion. E. Willful Patent Infringement. Pelikan argues, as another ground for its new trial motion, that the Court improperly excluded testimony in regard to an opinion from Mr. John Earley, Pelikan’s outside patent attorney, and that this exclusion prevented Pelikan from refuting Smith Corona’s allegation of willful infringement. In a footnote, Pelikan further argues that the Court erred in excluding from evidence all testimony regarding a memo written by Mr. Christian Donle, an intern at Pelikan’s trial counsel’s firm. Pelikan’s arguments are meritless. 1. The “Donle memo.” During the course of this litigation, the Court devoted a great deal of time to the evidentiary issues of Pelikan’s purported legal opinions. Prior to trial, the Court addressed Smith Corona’s motion in limine to exclude evidence of opinion of counsel as follows: THE COURT: All right. We’ll take up Plaintiff’s motion in limine to exclude evidence regarding any opinion of counsel concerning design patent. Who’s going to speak to that? MR. CHERRY [for Smith Corona]: I’ll speak to that for the Plaintiff, Your Hon- or. It’s our motion. Very simply, the Defendants are relying on opinion by Mr. John Earley with regard to the ’171 utility patent, but Mr. Earley will not give any opinion either orally or written regarding the design patent. I went to Pittsburgh, took his deposition, inquired into his opinions, and confirmed that he made no opinion regarding the design patent. It was at that deposition when that colloquy took place you referred to earlier, Your Honor. I tried to find out if there was going to be any opinion regarding the design patent, and to this date, there is no opinion regarding the design patent. I am concerned that Mr. Polak [President and CEO of Pelikan] will say that he relied on advice of counsel, but if he says that, I don’t know what that advice is. The only thing that has come up is a memo written by a German lawyer to Mr. Wettach, one of the Defendant’s trial attorneys, but that does not seem to be an opinion, but even if it were, it’s not adequate. It’s by a German lawyer, not a United States lawyer. I believe the gentleman’s name is Christian Donle, and he’s not listed as a witness, and that note is not listed as an exhibit at this trial. So it seems to me that there’s just no opinion regarding design patent. And I’m concerned not to have the Jury told there is one without my knowing there is ahead of time, and being able to interrogate the attorney who wrote it or gave it. THE COURT: All right. What does the Defendant say? MR. McELROY [for Pelikan]: Your Hon- or, there is not going to be a written opinion of counsel concerning the design patent. There is, however, testimony that will be offered on the issue of willfulness that Mr. Polak was furnished a copy of the memo from Mr. Christian Donle, which has been furnished to' the Plaintiff, and he discussed that memo, and the conclusions are contained in the memo with Mr. Wettach. The question of willfulness, if Your Honor please, is based on totality of the circumstances. It’s a fact-based question that is intended to ascertain whether the alleged infringer had any reasonable basis to believe that his conduct was not infringing. If Your Honor please, the memo was written, prepared by Mr. Donle, is very detailed in its analysis of both facts and law: The Plaintiff has been furnished with a copy of that memo, was furnished with it early on in the litigation. At the time Mr. Polak was deposed, he stated that he had received and relied upon the advice of counsel that there was no infringement related to the design patent. The fact that it is not a written opinion letter seems to be what we are arguing this motion about. Trial transcript of February 11, 1991 (filed February 25, 1991; Docket Entry No. 187), pp. 14-17. Mr. McElroy further stated that Mr. Polak would testify that he received the Donle memo — which addressed the design patent of Smith Corona, and the law related to design patents — “and discussed that memo, conclusions in it, with Mr. Wettach, and was assured by Mr. Wettach, confirmed by the information in the memorandum, that there was no infringement in this case” of Smith Corona’s design patents. Id. at 17-18 (emphasis added). Thereafter, the Court entertained extensive arguments on the admissibility of legal opinions to refute the allegation of willful infringement of Smith Corona’s design patents. See id. at 17-35. During this time, the Court read from portions of the deposition of Mr. John Earley, in which counsel for Smith Corona attempted to establish what opinion of counsel Mr. Polak was relying on regarding this issue. See id. at 28-34. While reviewing Mr. Earley’s deposition, the Court found that “[t]here’s no question that this was a run-around at pages 43 thrpugh 48 in the colloquy. I don’t know how you could have asked more pointed, clearer, Mr. Cherry, about whether there’s going to be something advanced on this [issue.]” Id. at 28. At one point, the Court stated to Mr. Wettach that he had achieved “a masterpiece of evasion to a straight forward question by your adversary.” Id. at 29. At another point in the Earley deposition, Mr. Wettach asserted the extraordinary positions that he did not know what Pelikan was relying on to refute Smith Corona’s assertion of willful infringement of its design patents, see id. at 30; that he did not know whether another attorney would take the stand to testify in regard to an opinion provided to Pelikan on this issue, see id. at 31-32; and that a representative of Pelikan’s trial attorney’s law firm might testify. See id. at 32. From these arguments, the Court learned that Mr. Donle was an intern at the law office of Pelikan’s trial counsel; that Mr. Polak discussed the Donle memo with Mr. Wettach, who may have given “assurances” to Mr. Polak that there was no infringement; and that trial counsel for Pelikan were seriously considering having one of their own testify on this issue at trial. In this regard, the Court stated: THE COURT: Is there going to be some suggestion that the trial lawyer put his stamp of approval on this opinion, in effect advanced, however advanced indirectly, the credibility of the lawyer trying this case? You’re skirting on that Mr. McElroy. It’s one thing to say that this intern, no lawyer, but intern, prepared the opinion____ [B]ut it’s another thing to bolster that and to attempt to bootstrap it by saying, well, it’s not only the opinion of a student, in training, an intern, but it has the imprimatur of a lawyer in this case, and in effect cloak it with respectability of Mr. Wettach, who is on his feet in the pit of this courtroom. And that has the effect of indirectly putting Mr. Wettach’s credibility as a competent lawyer, since, if there is any suggestion he gave his blessing to it, and that is part of what cloaks it, gives it some additional credibility in the eyes of Mr. Polak, then that puts Mr. Wettach in the position of at least indirectly his credibility is at issue. He hasn’t testified, but his respectability and his competency and his credibility is being, in a sense, cloaking this opinion upon which the reliance was made, upon which Mr. Polak relied. Id. at 24-25. To this, counsel for Pelikan responded: MR. McELROY: I don’t believe it does. [E]ven if the testimony were that Mr. Polak did — Mr. Wettach did vouch for it, not' talking about credibility on factual issues, we’re talking about the same advice that Mr. Wettach is going to be arguing as a legal proposition before the Court and the Jury throughout this trial. There are no factual issues of credibility tied up in that. It’s a statement of position. Id. at 25-26. Such an argument is completely untenable. There is a vast difference between rendering a legal opinion to one’s client— an opinion rendered dispassionately and objectively to serve that client’s best interest — and a legal argument tendered in a courtroom, an adversarial forum where an attorney earnestly advocates the position of the client. For this reason, the Court “preclude[d] any reference in the presence of the Jury, in opening statement or through any question asked or any answer given, with regard to the advice of counsel on this issue, until it’s first explored in the absence of the Jury.” Id. at 34. The Court similarly excluded the Donle memo, because it was “wrapped up, inextricably intertwined with this question of what advice [Mr. Polak] got, and who he got it from, and whether it amounts to advice of counsel. We don’t know where — anything about the qualifications of Mr. Donle.” Id. at 35. At trial, just before Mr. Polak took the stand, counsel for Smith Corona raised the question as to whether Mr. Polak could testify in regard to the Donle memo. See trial transcript of February 21, 1991, pp. 1378-1408. During a discussion with counsel for both parties, the Court learned that neither the Donle memo, nor any conversation with Mr. Wettach, was identified in Pelikan’s answers to Smith Corona’s first set of interrogatories as an opinion of counsel upon which it relied. See id. at 1379-80. Smith Corona thereafter took the deposition of Mr. Polak, at which he testified that there may have been a written opinion with regard to the Smith Corona design patents that he also relied upon. See id. at 1380. When counsel for Smith Corona requested production of the document, however, counsel for Pelikan stated “you’re not going to get it.” Id. at 1394. Pelikan asserted attorney/client privilege as justification for withholding the document. Id. at 1395. At trial, the Court found it “astonishing,” id. at 1396, that, although Mr. Polak claimed he had relied on a certain document as part of Pelikan’s affirmative defense, Smith Corona was precluded from discovering that document. While counsel for Pelikan pointed out at trial that it subsequently had furnished a copy of the Donle memo “within days after this deposition was taken,” id. at 1398, Smith Corona argued that this document was never properly identified as an opinion upon which Pelikan was relying, and that Smith Corona never had been entitled to proper discovery in regard to the genesis of the memo. Id. at 1403. In excluding any testimony in regard to reliance on the Donle memo, the Court stated: Well, I think you gentlemen have created problems for yourselves by this____ Seems to me that anybody that’s got a law license and a client understands that the United States District Court —