Computrol, Inc. v. Lowrance Electronics, Inc. (893 F. Supp. 1440, 1994)

United States District Court for the District of Idaho 1994-11-10

Citations

Full opinion text

ORDER ADOPTING REPORT AND RECOMMENDATION

RYAN, Senior District Judge.

Pursuant to an Order of Reference entered by this court, on September 8, 1994, United States Magistrate Judge Larry M. Boyle entered Findings of Fact, Conclusions of Law, Report and Recommendation (Report and Recommendation) in the above-entitled proceeding. The magistrate recommends that the court grant Computrol’s Motion for Preliminary Injunction filed on December 21, 1993.

Pursuant to 28 U.S.C. § 636(b)(1), the parties had ten days in which to file written objections to the magistrate’s recommendation. However, at Lowrance’s request, this court entered an order which permitted the filing of objections on or before September 30, 1994. See Order Granting Time Extension, Denying Request on Page Limit and Plaintiffs Motions, filed September 16, 1994. On September 30, 1994, Lowranee filed its objections to the magistrate’s Report and Recommendation as well as an appendix thereto. After being allowed a similar extension of time, Computrol’s Brief in Response to Objection to Magistrate’s Report and Recommendation was filed on October 20, 1994.

In light of Lowrance’s objections, this court must review the entire record and apply the appropriate standard of review (i.e., clearly erroneous or de novo). Then, pursuant to 28 U.S.C. § 636(b)(1)(A) and Local Rule 72.1, this court may affirm, reverse, or modify, in whole or in part, the findings of the magistrate judge.

The court has considered the entire record in this matter, including all of the memoranda, exhibits, and transcripts filed in relation to Computrol’s Motion for Preliminary Injunction, as well as Lowrance’s objections to the Report and Recommendation and Computrol’s response thereto. The court has also reviewed the cases cited by the parties in their memoranda and by the magistrate in his Report and Recommendation. Having conducted this detailed and independent review of the record, in light of the facts presented in this case and the substantive law applicable thereto, this court finds no aspect of the Report and Recommendation to be clearly erroneous or contrary to law.

Indeed, despite Lowrance’s vehement objections, this court finds that the magistrate properly concluded that Computrol’s Motion for Prehminary Injunction should be granted. The magistrate’s report was extremely thorough, well reasoned and well supported in the law. Therefore, rather than reiterating the facts of the case and the arguments of the parties which have been more than adequately addressed by Magistrate Judge Boyle, the court hereby incorporates by reference, accepts in its entirety, and adopts as its own the Report and Recommendation filed on September 8, 1994.

The court notes Lowrance’s Application for Oral Argument filed on October 14,1994, and Computrol’s objection thereto filed on October 25, 1994. Based on the comprehensive written record, and given the five-day hearing already conducted by the magistrate, this court finds that further oral argument is unnecessary and would only result in delay. Therefore, Lowrance’s request shall be summarily denied.

Based upon the foregoing and the court being fully advised in the premises,

IT IS HEREBY ORDERED that the Report and Recommendation filed September 8, 1994, should be, and is hereby, INCORPORATED by reference and ADOPTED in its entirety.

IT IS FURTHER ORDERED that Computrol’s Motion for Preliminary Injunction filed on December 21,1993, should.be, and is hereby, GRANTED as follows:

1. Defendant Lowrance Electronics, Inc. and its officers, directors, agents, servants, employees, assigns, and those acting in concert or participation with Lowrance Electronics, Inc. who receive notice of the injunction should be enjoined from further acts of infringement of United States Patent Number 5,260,912 pending trial on the merits of the above-entitled action, or until further order-of the court.

2. Defendant Lowrance Electronics, Inc. should immediately and forthwith cease" and desist from selling the ScanPan accessory product which induces, enables, and encourages the infringing side-looking use of certain of defendant’s sonar fish finding products, including the Magna II, Magna II+ , Magna II (portable), Ultra II, Ultra II+ , Ultra II (portable), UntraNav II GPS, and X-55; subject, however, to the giving of security by Computrol.

8. Defendant Lowrance Electronics, Inc. should be ordered to take immediate action to not include, to disable and/or remove from the future anticipated manufacture of its products, including but not limited to the Magna II,' Magna II+ , Magna II (portable), Ultra II, Ultra II+ , Ultra II (portable), UntraNav II GPS, and X-55, or other contemplated product or device, that portion of the software in the microprocessor which contains or performs the side-looking function or feature; subject, however, to the giving of security by Computrol.

4. Any preliminary injunction and order should be contingent and should not take effect until Computrol executes and delivers to the court sufficient security, in such sum as Magistrate Judge Larry M. Boyle shall determine.

IT IS FURTHER ORDERED that Lowrance’s Application for Oral Argument filed on October 14, 1994, should be, and is hereby, SUMMARILY DENIED.

FINDINGS OF FACT, CONCLUSIONS OF LAW, REPORT AND RECOMMENDATION

BOYLE, United States- Magistrate Judge.

Currently pending before the Court is Computrol’s Motion for Preliminary Injunction (Docket No. 12) pursuant to an Order of Reference from the District Court.

Plaving conducted an extensive evidentiary hearing, carefully reviewed the evidence of record, studied the briefs and written closing argument of counsel, and other submissions of the parties, having conducted its own independent legal research, and otherwise being fully advised, the Court issues the following Findings of Fact, Conclusions of Law, Report and Recommendation pursuant to 28 U.S.C. § 636(b).

I.

BACKGROUND

On November 12, 1993, Computrol filed its patent infringement complaint and demand • for jury trial (Docket No. 1). On January 21, 1994, Lowrance filed an answer asserting that the claims in question are not infringed and Computrol’s claims are invalid under controlling law. Lowrance also filed a counterclaim in which it seeks declaratory judgment of invalidity and non-infringement of the ’912 Patent, and alleges Lanham Act violations and common law unfair competition claims against Computrol (Docket No. 25).

A fifteen-day jury trial on the merits of Computrol’s complaint and Lowranee’s counterclaim is scheduled to commence May 1, 1995 before the Hon. Harold L. Ryan, Senior United States District Judge.

On December 21, 1993, Computrol filed a Motion for Preliminary Injunction (Docket No. 12) and Lowrance filed its Objection to Motion for Preliminary Injunction on January 11,1994 (Docket No. 15). An evidentiary hearing on Computrol’s motion was initially scheduled to commence on April 4, 1994, but subsequently was vacated due to the unforeseen illness of Lowrance’s lead patent counsel. The evidentiary hearing was therefore rescheduled to commence on July 18, 1994.

Computrol seeks a preliminary injunction prohibiting Lowrance from infringing United States Patent No. 5,260,912 (hereinafter referred to as the “ ’912 Patent”) through manufacturing and selling various specified models of its sonar fish finders.

The ’912 Patent, entitled “Side-Looking Fish Finder,” was issued to Mark W. Latham on November 9, 1993, and subsequently was assigned to Computrol. Computrol is the present owner of all right, title and interest in the ’912 Patent by assignment from Latham.

After completion of extensive discovery by both parties and numerous prehearing motions, a five-day evidentiary hearing was commenced July 18, 1994. In excess of five hundred documents were placed into evidence by the parties. Testimony was received from numerous witnesses, including experts in a variety of technical and relevant fields including sonar used for fish detection, reverse engineering, software development and analysis, microelectronics hardware and software design, digital signal processing, marketing, sales, and patent law.

II.

LEGAL STANDARDS GOVERNING INJUNCTIVE RELIEF IN PATENT INFRINGEMENT ACTIONS

Computrol’s Motion for Preliminary Injunction is brought pursuant to Fed.R.Civ.P. 65 and 35 U.S.C. § 283, which provides:

The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.

Because issuance of an injunction pursuant to Section 283 involves substantive matters unique to patent law, the law of the Federal Circuit governs. Hybritech, Inc. v. Abbott Laboratories, 849 F.2d 1446, 1451 n. 12 (Fed.Cir.1988). “A district court must, of course, follow Federal Circuit precedent in a case arising under the patent laws, 35 U.S.C. §§ 1 et seq.” Foster v. Hallco Mfg. Co., Inc., 947 F.2d 469, 475 (Fed.Cir.1991).

It is well established by Federal Circuit case law that before an injunction should issue in its favor, Computrol has the burden to demonstrate its right to an injunction in light of the following four factors:

1. Reasonable likelihood of success on the merits;

2. Irreparable harm;

3. The balance of hardships tips in its favor; and

4. The impact of the injunction on the public interest.

Hybritech, 849 F.2d at 1451. See also FMC Corporation v. United States, 3 F.3d 424 (Fed.Cir.1993); Intel Corp. v. ULSI System Technology, Inc., 995 F.2d 1566 (Fed.Cir.1993); New England Braiding Co. v. A.W. Chesterton Co., 970 F.2d 878 (Fed.Cir.1992); Illinois Tool Works, Inc. v. Grip-Pak, Inc., 906 F.2d 679 (Fed.Cir.1990); H.H. Robertson v. United Steel Deck, Inc., 820 F.2d 384 (Fed.Cir.1987). In Nutrition 21 v. United States, 930 F.2d 867 (Fed.Cir.1991), the Federal Circuit confirmed this long standing rule of law required for obtaining a preliminary injunction in patent infringement actions.

As this court has previously stated:

Whether a preliminary injunction should issue turns upon four factors: 1) the probability that the movant will succeed on the merits; 2) the threat of irreparable harm to the movant should a preliminary injunction be denied; 3) the balance between this harm and the harm that granting the injunction will cause to the other parties litigant; and 4) the public interest.

Nutrition 21, 930 F.2d at 869.

As the Federal Circuit has consistently explained, “[tjhese factors, taken individually, are not dispositive; rather, the district court must weigh and measure each factor against the other factors and against the form and magnitude of the relief requested.” Hybritech, 849 F.2d at 1451 citing Roper Corp. v. Litton Systems, Inc., 757 F.2d 1266, 1269 n. 2 (Fed.Cir.1985). A weak showing on one factor may be overcome by a strong showing on the others. Chrysler Motors Corp. v. Auto Body Panels, 908 F.2d 951, 953 (Fed.Cir.1990). See also FMC Corporation, 3 F.3d at. 426.

There exists a statutory “presumption of validity of a patent [which] is a procedural device that places the burden of going forward and the ultimate burden of persuasion at trial on one attacking the validity of a patent.” Nutrition 21 v. United States, 930 F.2d 867, 869. “However, at the preliminary injunction stage, because of the extraordinary nature of the relief, the patentee carries the burden of showing likelihood of success on the .merits with respect to the patent’s validity, enforceability, and infringement.” Id. (emphasis in original). While a patentee seeking a preliminary injunction need not establish its case “beyond question,” Nutrition 21, 930 F.2d at 869-70, it must establish a right thereto in light of the four factors discussed above. Hybritech, 849 F.2d at 1451. Further, at the preliminary junction proceeding, the presumption of validity is not evidence which can be “weighed” in determining the likelihood of success. New England Braiding Co., 970 F.2d at 882.

Nevertheless, while a patentee need not show that the patent is valid before an injunction will issue, the patentee retains the burden to demonstrate entitlement to preliminary relief and also of showing “a reasonable likelihood that the attack on its patent’s validity would fail.” H.H Robertson Co. v. United Steel Deck, Inc., 820 F.2d 384, 387 (Fed.Cir.1987) (emphasis added). See also New England Braiding Co., Inc. v. A.W. Chesterton Co., 970 F.2d 878, 883 (‘While it is not the patentee’s burden to prove validity, the patentee must show that the alleged infringer’s defense lacks substantial merit”). This rule of law reflects the fact that a patent is presumed valid and the burden at trial of proving invalidity of a patent remains on the challenger, who must establish the patent’s invalidity by clear and convincing evidence. H.H. Robertson, 820 F.2d at 387. In other words, the patentee’s burden of establishing entitlement to preliminary relief “is determined in the context of the presumptions and burdens that would inhere at trial on the merits” with respect to issues of patent validity. New England Braiding Co., 970 F.2d at 883, quoting H.H. Robertson Co., 820 F.2d at 388; see also Roper Corp. v. Litton Systems, Inc., 757 F.2d 1266, 1270 (Fed.Cir.1985).

The Federal Circuit has also made it clear that the grant of a preliminary injunction is reviewed on appeal to determine whether the district court “abused its discretion, committed an error of law, or seriously misjudged the evidence [underlying its findings of fact].” Nutrition 21 v. U.S., 930 F.2d at 869, citing to Smith Int’l, Inc. v. Hughes Tool Co., 718 F.2d 1573, 1579, 219 USPQ 686, 691 (Fed.Cir.), cert. denied, 464 U.S. 996, 104 S.Ct. 493, 78 L.Ed.2d 687 (1983).

A district court is specifically required to make findings of fact on which it relies to justify granting a preliminary injunction under Fed.R.Civ.P. 52(a). Sufficient factual findings on the material issues are necessary to allow the Federal Circuit to have a basis for meaningful review. Nutrition 21, 930 F.2d at 869. See also Oakley, Inc. v. Int’l Tropic-Cal, Inc., 923 F.2d 167 (Fed.Cir.1991).

In addition to the foregoing authorities, the Constitutional and statutory basis for jurisdiction, as well as the controlling legal standards established by the Federal Circuit for the various doctrines, theories and defenses asserted by the parties are set forth in Part IV of this Report and Recommendation. All of these authorities, including the foregoing cited in this portion of the opinion, are the legal principles and standards which have guided the Court in this process and upon which it has relied in making its Finding of Facts, Conclusions of Law, Report and Recommendation. Rather than cite those standards and authorities contained in Part IV at this point in the opinion, and again subsequently in the Conclusions of Law section; the parties’ attention'is directed to. that portion of the opinion as containing the legal standards applicable • to and controlling the several doctrines, theories, defenses, and issues presented herein.

After making its formal findings of fact in Part III, the Court will analyze the four factors relating to issuance of injunctions in patent infringement actions and will address all issues raised in light of the evidence of record and governing legal principles.

III.

FINDINGS OF FACT

Having carefully considered the testimony of all of the witnesses called at the preliminary injunction evidentiary hearing, having thoroughly reviewed all of the exhibits admitted into evidence, and having considered the legal memoranda, cited authorities and argument of counsel, the Court makes the following Findings of Fact pursuant to Fed. R.Civ.P. 52(a).

To the extent that any conclusions of law contained in Part IV can be considered to be or are deemed to be findings of fact, they are incorporated by reference into these findings of fact.

A. The Parties

1. Plaintiff Computrol, Inc. is an Idaho corporation having its. principal place of business in Meridian, Idaho. Computrol is a subsidiary of Armstrong International, Inc.

2. Computrol’s engineering, manufacturing, and business facilities are located in Meridian, Idaho, including its Bottom Line, Cannon and OEM enterprises. Computrol, under the trade or brand name Bottom Line, designs, manufactures and sells several models of computerized fish finding products, including its “side-looking” sonar devices.

3. Defendant Lowrance Electronics, Inc. is a Delaware corporation with its principal place of business in Tulsa, Oklahoma. Lowrance does business as Eagle Electronics, a trade or brand name used by Lowrance to identify and distinguish certain of its products.

4. Lowrance designs,- manufactures and markets sonar instruments, global positioning systems (“GPS”) and Loran-C receivers and navigation plotters and mapping products under the “Lowrance” and “Eagle” trade names throughout, the United States and twenty-six foreign countries.

5. Computrol and Lowrance compete with other manufacturers in the market of computerized sonar devices that are principally used by sportsfishermen to locate fish. Both parties manufacture and sell computerized sonar devices that are intended to be used by fishermen, which products have been referred to in this litigation as “side-looking” fish locating sonar devices.

B. Sonar Fish Finding Devices

6. Sonar involves the transmission of sound pulses in water and the detection and analysis of echoes from sound pulse and from other sources in the water, from which process the term is derived: SOund Navigation and Ranging.

7. In a sonar device, a pulse of sound energy is sent out by a sound source or “transducer” through the water. When this sound energy pulse strikes an object, the sound energy is reflected back towards the sonar device as an echo. Echoes from one or more sources can be received during each sounding or, as described during the hearing, a “ping.” By analyzing these reflected echoes, a sonar device can perform its function of detecting and locating objects in the water, such as the bottom and bottom structure, logs, fish, and a number of other submerged targets.

8. Sonar analysis requires the integration of hardware, including transmitters, receivers, amplifiers, microprocessors and display devices or components, and software. The software is typically embedded in the microprocessors and transmits instructions which cause the hardware to transmit pulses, the receivers, amplifiers and other hardware to receive and process echoes, and the display device to display information to the operator.

9. A fundamental principle upon which all sonar is based is the principle that sound travels through water at a constant speed.

10. Sound traveling through water is deflected by contact with objects in the water, by contact with the surface of the water and the bottom of the body of water and by contact with floating and resting debris, plants and changes in temperature of layers of water. The combination of background noise and deflection of sonar pulses from contact with the surface, the bottom, debris and other extraneous objects is known as reverberation or clutter.

11. Sonar is used in the scientific community to study and map geophysical features of the ocean. Sonar is used in commercial fishing to locate fish populations. Sonar is also used by recreational fishermen and sports-fishermen to locate the presence of fish.

12. Fish detectors for commercial or scientific use have traditionally been very complex and expensive devices that operate by receiving, storing, and evaluating large amounts of data and displaying complex data patterns for interpretation by highly trained operators. The commercial and scientific sonar fish finders use relatively complex techniques to analyze the entire returned signal.

13. Sonar fish detectors for recreational and sportsfishing have traditionally been “down-looking” detection devices. Generally speaking, down-looking fish finders operate on the theory that transmitting a pulse downward from a boat will result in a strong, identifiable echo from the bottom. Echoes received before the return of the bottom echo are expected to be fish swimming in the water between the boat and the bottom.

14. [REDACTED & UNDER SEAL]

15. [REDACTED & UNDER SEAL]

16. Prior to Computrol’s introduction of the Computrol Scout product in 1991, there were no equivalent sonar side-looking fish finders available on the recreational fishing market by any manufacturer for use by sportsfishermen.

C. Side-Looking Fish Finders

17. Mark Latham developed the side-looking fish detection method and device of the ’912 patent at issue after a discussion with Merrill Armstrong, President of Armstrong International, Inc., the parent company of Computrol, in July, 1990 at the annual trade show of the American Fishing Tackle Manufacturer’s Association (“AFTMA”). In that discussion, Armstrong commented on the unfulfilled commercial need for a fish detection device that could detect fish to the side of a boat or pier.

18. Latham’s initial reaction to the idea of a side-looking fish sonar system was that the device would not work for a variety of reasons.

19. After Latham concluded that the side-looking device did not necessarily need to find the bottom, Armstrong and Latham discussed other perceived problems associated with fish detection to the side of a boat, including the significant problem created by reverberation or background noise.

20. Armstrong encouraged Latham to develop an economical fish finder that could detect fish in a sideways direction and that Computrol could manufacture and place on the commercial market.

21. In response to Armstrong’s encouragement, during July and August, 1990 Latham began working on the side-looking fish detection methodology claimed in the ’912 Patent. Subsequently, over the following months, Latham field-tested his fish detection method in a variety of locations.

22. After conducting numerous field tests, Latham concluded that the fundamental problem with a side-looking fish finder was to separate unwanted reverberation from fish echoes. This problem arose because when the sonar transducer was turned horizontally, it was difficult to process and store all of the complex combinations of signals received after transmitting signals in a substantially horizontal direction. It was not until Latham determined that it was less important to identify each and every fish in the water that his method subsequently incorporated into the Scout device came into being. Latham concluded that the average sportsfisherman would not necessarily be interested in identifying all fish in a school, and determined it was acceptable to identify less than all fish within range so long as those fish that were detected were correctly identified. In this way, Latham concluded that fish to the side of a boat within a easting distance would be displayed with a degree of confidence. In this process, Latham decided to minimize false positive results in order to “filter out” non-fish echoes that were inherently problematic when the sonar transducer was pointed in a substantially horizontal direction.

23. The concept that the Computrol side-looking fish finder would actually reject some closely-spaced fish echoes in order to filter out undesirable echoes was described at the hearing by Professor Clarence S. Clay as a “paradigm shift” or a change in the way people think about a certain problem, concept or idea. Stated another way, and as applied to the circumstances presented here, sonar fish detection methods used prior to the Latham invention sought to identify as many fish as possible. Latham concluded for the first time.that a side-looking fish finder should seek to detect isolated fish, even though his method admittedly would result in the failure to detect multiple fish or fish located near other echo-producing objects.

24. To obtain the desired results, Latham elected to identify single fish with certainty by discarding complex reverberation signals received from the surface of the water, plants in the water, and large objects. Latham understood that by using this rejection or filtering approach, some schools or groups of fish and some of the largest fish might actually remain undetected. An essential, distinguishing aspect of the Computrol Scout device, which utilizes the ’912 Patent methods, is that when two fish are located close together in the water, the Scout will display neither as a fish icon on the product display screen. This filtering or discarding element of the Latham patent is the best illustration of the concept referred to at the hearing as a paradigm shift.

25. Once Latham discovered this rejection concept of detecting fish, he developed what has been referred to as the “Latham filter” which detects fish by looking for echoes which are preceded by a minimum leading space free of echoes, followed by a minimum trailing space free of echoes, for which the “fish” echo has a duration not exceeding a predetermined maximum.

26. After developing this filtering method, Latham built a prototype product and tested it. Receiving favorable results from Latham’s prototype, Computrol put the .product into full production for the 1991 market year.

27. Computrol built a commercial embodiment of the apparatus claimed in the ’912 Patent which employed the methodology described in the specification of the patent. This product, known as the Scout fish finder, was introduced commercially in January, 1991.

28. In 1991, Computrol received wide acclaim and won the “Best of Show” award at the July, 1991 AFTMA convention. In 1992, Computrol was awarded the “Electronic Design and Engineering” Award by Popular Mechanics Magazine which recognizes new uses of electronic technology and is not limited to sporting equipment.'

29. The Computrol Scout and subsequent side-looking sonar devices received significant acclaim and praise in the sportsfishing industry, as demonstrated by the publication of numerous magazine and newspaper articles about the devices incorporating the side-looking technology of the ’912 Patent.

30. [REDACTED & UNDER SEAL]

31. The Scout device has a display screen with an image of a conical region on which fish icons were displayed. The apex of the conical portion on the display screen represents-the transducer. The transducer is the source of the pings or sound transmissions and typically is attached to the boat in which. the fisherman is located. The diverging lines of the conical region represent the divergence of the sound transmissions. The display screen of the Scout device also includes a distance display portion located below the conical region. The distance display portion of the screen contains digital numerals indicating the distance to the nearest-detected fish.

32. The down-looking sonar fish finders appear to function well, detect fish, and perform a useful function.

33. Professor Clay was initially skeptical about whether the Latham side-looking fish finder device would function. After studying the ’912 Patent and conducting laboratory and field tests on the Computrol Scout device, Clay expressed considerable surprise that the Computrol- side-looking fish sonar device actually worked as represented by Latham.

34. Since the introduction in 1991 of its Scout device, Computrol continues to market and sell commercial products embodying the claimed technology of the Latham Patent under its Sidefinder trademark. Computrol’s expanded product line of fish finders incorporating its Sidefinder technology now includes the Stalker fish finder, the Fishin’ Buddy unit and four Tournament lines of fish finders.

35. Computrol has been successful in the market and in placing its Fishin’ Buddy product with numerous national retail organizations.

36. Before the introduction of the Computrol Scout side-looking product in 1991, there were no equivalent commercial side-looking sportsfishing sonar devices available on the market from any manufacturer.

37. The Computrol Scout and subsequent products created a market for side-looking or side-scanning products in the commercial sportsfishing sonar market.

D. Lowrance Manufactures and Markets Side-Looking Device

38. [REDACTED & UNDER SEAL]

39. [REDACTED & UNDER SEAL]

40. [REDACTED & UNDER SEAL]

41. [REDACTED & UNDER SEAL]

42. Lowrance manufactures and markets numerous down-looking fish finding sonar devices under its “Eagle” label. Several of these products, in addition to their down-looking capability, also are capable of utilizing an Eagle ScanPac, an optional, accessory device which enables the Eagle products to find fish to the side of the boat. These Lowrance products presently include the following units or devices: the Magna II, Magna II +, Magna II (portable), Ultra II, Ultra II+ , Ultra II (portable), UntraNav II GPS, and X-55.

As used in this written decision, “Magna II” or “Lowrance device” includes the SeanPac attachment device when used in connection with the Magna II and the other Lowrance products identified.

43. The Lowrance ScanPac optional attachment consists of a transducer, adjustable metal strap, and a “Y” cable.

44. [REDACTED & UNDER SEAL]

45. [REDACTED & UNDER SEAL]

46. The evidence presented at the July 18-22, 1994 hearing establishes that Low-ranee is planning on designing, manufacturing and selling sonar fish finding devices with side-looking capabilities in the fall of 1994. However, it is not clear from the evidence whether these anticipated products will use or incorporate the same methodology and/or display screen or the ScanPac attachment as Lowrance’s other fish sonar products presently utilize.

E. Prosecution of the ’912 Patent Application

47. On May 17, 1991, Computrol filed a patent application with the U.S. Patent and Trademark Office. The application was assigned Serial No. 07/702,278 (the “Original Patent Application”). This application listed Mark W. Latham as the inventor and described the sonar technology of the Latham filter to detect fish in a sideways direction and apprise the sports or recreational fisherman of the location of the detected fish on a display screen.

48. Subsequently, on January 21, 1993, a continuation application was filed and assigned Serial No. 08/007,356.

49. Patent application Serial No. 08/007,-356 and patent application Serial No. 07/702,-278 were both examined in the Patent Office by Primary Examiner Daniel T. Pihulic. As part of his examination of these applications, Examiner Pihulic reviewed numerous U.S. patents and other publications relating to sonar technology.

50. In addition, Examiner Pihulic conducted at least three searches of Patent Office reference files. These searches were directed to Patent Office reference files of Class 367—Communications, Electrical: Acoustic Wave Systems and Devices, in pertinent sonar subclasses.

51. During the period of time Examiner Pihulic was conducting the examination of patent application Serial No. 08/007,356, his cumulative experience in the Patent Office included examination of several hundred patent applications, many of which involved sonar technology.

52. The ’912 Patent was granted to Latham by the U.S. Patent and Trademark Office (the “Patent Office”) after examination of original and continuation applications. The ’912 Patent is unexpired. A certified original of the ’912 Patent and the written assignment was available at the July 18-22, 1994 hearing on the motion for preliminary injunction.

53. Despite Armstrong’s role or encouragement in the concept and creation of the Computrol Scout device and the ’912 Patent, the Court finds that Mark W. Latham was the sole inventor of the ’912 Patent.

F. Infringement of the ’912 Patent Method Claims

1. Interpretation of the Method Claims

54. The key method claims of the ’912 Patent, and the focus of the parties’ evidence, are Claims 37, 39 and 40, which provide as' follows:

37. A method of detecting fish in a body of water, comprising the steps of: transmitting a sound pulse through the water in a predetermined direction, thereafter detecting echoes from said sound pulse which are.preceded by a leading space interval free of other echoes and followed by a trailing space interval free of other echoes, rejecting each said detected echo which has a duration greater than a predetermined upper limit, accepting said detected echoes other than said detected echoes rejected in said rejecting step, and interpreting each said accepting echo to be an echo from a fish.

39. A method of claim 37, wherein said rejecting step includes the step of rejecting each said detected echo for which said leading space interval is less than a first predetermined time duration.

40. A method of claim 39, wherein said rejected step includes the step of rejecting each said detected echo for which said trailing space interval is less than a second predetermined time duration.

55. There are 59 claims in the ’912 Patent. Computrol has taken the position that Defendant infringes at least Claims 4, 22-24, 26, 28-31, 33, 35-44, 47-49 and 51-53. At the July 18-22, 1994 preliminary injunction hearing, Computrol’s proof focused on method Claim 40,-whieh is dependent on Claims 37 and 39, and display Claims 48 through 53.

56. Two widely divergent proposed interpretations of these method claims of the ’912 Patent were offered by Computrol and Low-ranee, through their respective expert witnesses. Therefore, in light of the conflicting testimony, the Court must weigh the conflicting evidence to determine the relative strengths and weaknesses of the parties’ evidence.

57. In essence, the “Latham filter” detects fish by looking for echoes which are preceded by a minimum leading space free of echoes, followed by a minimum trailing space free of echoes, for which the “fish” echo has a duration not exceeding a predetermined maximum.

58. The Latham filter as addressed in Claim 40 is the most basic description of the method. The ‘ plain language of the claim applies the Latham filter to echoes received during a single sounding, accepting and rejecting each echo. In the basic description, Claim 40 is intended to capture the essence of the invention and ensures the broadest possible coverage under the law.

59. The evidence produced at the hearing suggests that a number of terms in Claim 40 must be interpreted in light of the specification.' For example, the specification indicates that “transmitting a pulse through water in a'predetermined direction” relates to sonar pulses which are transmitted in “an approximately horizontal direction.”

60. The specification also indicates that the term “echo” refers to a signal that has passed the threshold of a hardware filter. It recognized by those skilled in the relevant arts that the threshold may be applied in hardware, in software, or in a combination of the two, and in a single step or combination of steps.

61. To those trained in the sonar art, classifying and detecting objects in the water requires the analysis of echoes received during repeated soundings. Repeated soundings are required whether the echo data is analyzed at each sounding or whether the data is accumulated and analyzed in groups.

62. It is possible to apply the Latham filter to each echo in a single sounding. This is the implementation described in the preferred embodiment of the Latham ’912 Patent. In this implementation, echoes are accepted or rejected one by one.

63. To those trained in the sonar art, the term “echo” as used in the above-quoted ’912 claims are not necessarily limited to a single sound pulse or single echo; rather, multiple sound pulses and echoes are contemplated by the use of the singular words “echo” and “pulse” in the language of the ’912 Patent. The use of the singular term “echo” would therefore appear to have been a drafting choice rather than a claim limitation.

64. It is also well known in the art that multiple soundings can be “stacked” and the data accumulated for each range cell. The data for each range cell are accumulated and analyzed together, which permits the analysis to identify patterns and ignore random events or echoes.

65. Stacking is common in sonar signal processing. The concept of stacking is well known in the sonar art and has been used since the 1930s. It is possible to analyze the results of stacked soundings by computing the total number of detected echoes, looking at averages, or applying some other mathematical formula to “weigh” the echoes received during individual soundings. The Latham filter, which measures the leading space, trailing space, and duration of the signals, could then be applied to the results of the stack.

66. Latham has adopted a conservative implementation of the filter by using an inexpensive microprocessor with limited memory. Through accepting or rejecting each echo on an echo-by-echo basis, Latham further reduced the memory requirements for the microprocessor.

67. [REDACTED & UNDER SEAL]

68. [REDACTED & UNDER SEAL]

69. [REDACTED & UNDER SEAL]

70. [REDACTED & UNDER SEAL]

71. [REDACTED & UNDER SEAL]

72. [REDACTED & UNDER SEAL]

73. [REDACTED & UNDER SEAL]

74. The evidence discussed above strongly suggests that one skilled in the sonar and signal processing art would know that the Latham filter could be applied either to analyze each echo in a sounding, or could be applied to results of a stacking operation. The principles are the same and the Court finds, therefore, that Computrol made a strong showing that Claim 40 should not be limited to an echo by echo analysis as urged by Lowrance. Instead, it would be reasonable to interpret Claim 40 to apply equally to the echo data retrieved and accumulated over multiple soundings.

75. The evidence at the hearing demonstrated that in the case of multiple soundings, those skilled in the art would know to apply a software threshold to eliminate random echoes. Therefore, the phrase in Claim 37 “free of other echoes” can reasonably be interpreted to mean- “free of other echoes exceeding the software threshold.”

2. Function and Operation of the Accused Lowrance Device

76. [REDACTED & UNDER SEAL]

77. [REDACTED & UNDER SEAL]

78. [REDACTED & UNDER SEAL]

79. [REDACTED & UNDER SEAL]

80. [REDACTED & UNDER SEAL]

81. [REDACTED & UNDER SEAL]

82. [REDACTED & UNDER SEAL]

83. [REDACTED & UNDER SEAL]

84. [REDACTED & UNDER SEAL]

85. [REDACTED & UNDER SEAL]

86. [REDACTED & UNDER SEAL]

87. [REDACTED & UNDER SEAL]

88. [REDACTED & UNDER SEAL]

89. [REDACTED & UNDER SEAL]

90. [REDACTED & UNDER SEAL]

3. Literal Infringement of the Method Claims

91. [REDACTED & UNDER SEAL]

92. [REDACTED & UNDER SEAL]

93. [REDACTED & UNDER SEAL]

94. [REDACTED & UNDER SEAL]

95. [REDACTED & UNDER SEAL]

96. [REDACTED & UNDER SEAL]

97. Claim 40 provides: “A method of Claim 39, wherein said rejected step includes the step of rejecting each said detected echo for which said trailing space interval is less than a second predetermined time duration.” For purposes of determining infringement, the analysis of the minimum trailing space interval is the same as the analysis of the minimum leading space interval.

98. [REDACTED & UNDER SEAL]

99. [REDACTED & UNDER SEAL]

100. After balancing the relative strength of the parties’ evidence respecting literal infringement of the method claims of the ’912 Patent, the Court finds, for the limited purposes of these injunctive proceedings, that Computrol has made a strong showing that Claim 40 is literally infringed by the Latham filter found in the side-looking fish detection software of the Lowrance Magna II.

4.. Doctrine of Equivalents

101. The function described in Claim 40 is detection of fish in a body of water. It has been stipulated by the parties that the ’912 Patent and the Magna II devices perform the same function.

102. The Latham filter describes the way of performing the function identified in Claim 40. The result obtained is the interpretation of echoes to be echoes from a fish.

103. The evidence of record establishes a strong likelihood that the Magna II device performs substantially the same function in substantially the same way and achieves substantially the same result as is described in Claim 40 of the ’912 Patent.

104. [REDACTED & UNDER SEAL]

105. In sum, Computrol demonstrated that, from the perspective of one with ordinary skill in the art, none of the alleged differences between the method of Claim 40 of the ’912 Patent and the Magna II asserted by Lowrance are substantial or add anything of significance to the claimed invention. On balance, the Court is satisfied that Computrol made a strong showing of infringement under the Doctrine of Equivalents.

G. Infringement of the ’912 Patent Apparatus Claims

106. .Claims 48 through 53 of the ’912 Patent are the apparatus claims at issue for purposes of Computrol’s motion for a preliminary injunction.

. 107. The evidence indicates that the first and second means described in independent Claim 48 should be interpreted consistently with the method claims, including Claim 37. It is also apparent that the display means should be interpreted consistent with the display set forth in figure 4 of the ’912 Patent.

108. Claim 48 of the ’912 Patent provides: An apparatus for detecting fish in a body of water, comprising: first means for transmitting a sound pulse through the water in a predetermined direction; second means for detecting echoes from said sound pulse and for accepting each said echo representative of a fish; and display means responsive to said second means for selectively providing an operator perceptible indication of a detected fish, said display means including means defining an image of a substantially conical region representative of divergence of said sound pulses in said predetermined direction in said water, said conical region having an apex portion representative of a location of said first means, said display means further including means responsive to said second means for selectively displaying within said conical region said operator perceptible indication of a detected fish.

109. [REDACTED & UNDER SEAL]

110. [REDACTED & UNDER SEAL]

111. [REDACTED & UNDER SEAL]

112. [REDACTED & UNDER SEAL]

113. [REDACTED & UNDER SEAL]

114. [REDACTED & UNDER SEAL]

115. [REDACTED & UNDER SEAL]

116. [REDACTED & UNDER SEAL]

117. [REDACTED & UNDER SEAL]

118. [REDACTED & UNDER SEAL]

119. [REDACTED & UNDER SEAL]

120. [REDACTED & UNDER SEAL]

121. Computrol made a strong showing, for injunctive relief purposes, that Claims 48 through 53 are literally infringed by the side-looking fish finder display of the Magna II and related products.

122. In addition, Computrol established, for purposes of these instant proceedings, that from the perspective of one of ordinary skill in the relevant art, all alleged differences between the Lowrance display and that contained in Claims 48 through 53 of the ’912 Patent are not substantial differences and add nothing of significance to the claimed invention.

123. Computrol also made a strong showing for injunctive relief purposes that Claims 48 through 53 are infringed by the side-looking fish finder display of the Magna II and related products under the Doctrine of Equivalents.

H. Patent Validity

I. Prosecution History Estoppel

124. Lowrance seeks to limit the scope of the claims by applying the doctrine of prosecution history estoppel. This doctrine provides that when the patent holder took one position during prosecution to overcome the rejection of a claim, a contrary position cannot be asserted in a subsequent infringement suit. In this case, Lowrance argues that statements made to the Patent Office concerning the Teel patent serve to limit the scope of Claim 40 and the other claims.

125. The Teel patent was asserted against prosecution of certain early claims of what ultimately became the ’912 Patent by Examiner Pihulic and formed the basis upon which Latham’s patent attorney voluntarily cancelled these claims in the preliminary amendment of the continuation patent application filed in January, 1993. The technical pertinence of the Teel patent involved the amplitude level of the echo where an echo above a certain amplitude level indicated a large object such as a tree to be avoided by a rapidly moving boat.

126. In that proceeding, Latham’s patent attorney asserted that the claims in question were patentable over Teel because they specified the amplitude level of the detected level be below a defined level measured in decibels. This amplitude level which formed the technical basis to distinguish prosecution Claims 17 and 18 is entirely unrelated to the leading space, trailing space and echo durational requirements of Claims 40 and 48 through 53 at issue here. Computrol has made a strong showing that there was no file history estoppel created by virtue of the amendments to prosecution Claims 17 and 18.

2. Nonobviousness of the ’912 Patent in View of References Presented

127. The evidence suggests that the scope of the prior art in this action encompasses the field of sonar used for fish detection. The content of the prior art in sonar is directed primarily to fish detection in a downward direction using a single direction pulse, commercial fish detection in multiple directions using moving transmitters or multiple transmitters and scientific sonars using sector scanning.

128. Computrol’s patent law expert Sterne testified that in this ease that the person of ordinary skill in the art would be an individual having a Bachelor of Science in Electrical Engineering or equivalent experience, and specific experience in sonar and digital signal processing. His definition of the person of ordinary skill in the art was not disputed by other evidence. Accordingly, the Court adopts Sterne’s definition of the level of skill of a person of ordinary skill in the art.

129. It is clear to the Court that the technical experts in this case, Drs. Clay, Adams, and Deuser, and Messrs. Johnson-Laird, Latham and Weber, all have superior skill in the art. However, in light of the widely differing views and opinions expressed by these experts, not all can be correct and thus accepted by the Court in these proceedings. It is sufficient to say that the views and opinions, all rendered with sincerity and conviction, cannot be reconciled and some must unavoidably and of necessity be rejected in the weighing and balancing process.

130. Claim 40 combines three elements: (a) a minimum leading space, (b) a minimum trailing space and (c) a maximum pulse duration. These elements are used to filter echoes received by the transducer and detect fish.

131. Lowrance contends that Claim 40 is obvious in fight of the Milano patent in combination with the Solli or “PCT” foreign patent application, the BioSonies article by Ehrenberg, and the “Humminbird 4 ID,” a competing sportsfishing consumer sonar device manufactured by Techsonics Industries. Lowrance also contends that Claims 4, 22-23, 26, 28-44 and 47 are either anticipated under 35 U.S.C. § 102, or obvious under 35 U.S.C. § 103.

3. The Milano Patent

132. From the weight of the evidence presented at the hearing, it appears unlikely that United States Patent No. 4,596,069 issued to Milano on June 24, 1986 describes the Latham filter. Substantial differences between the Latham filter and the Milano Patent exist. For example, if the Latham filter was applied to the second group of echoes shown in Fig. 3, both would be rejected. The first echo would be rejected because the second occurs in the trailing space of the first. The second echo would be rejected because the first echo occurs in the leading space of the second.

133. On balance, Computrol established that the Milano Patent would not teach or describe to one with ordinary skill in the art the fundamental concept underlying the Latham filter, i.e. the rejection of both echoes when they occur too close together.

134. As noted above, the concept that the Latham filter would not detect either of two or more closely-spaced fish. In other words, as evidenced by the Milano Patent itself, fish detection methods used prior to the Latham invention sought to identify as many fish as possible. Latham concluded for the first time that a side-looking fish finder should seek to detect isolated fish, even though his method would result in the failure to detect multiple close fish or fish located near other echo-producing objects.

135. The Latham ’912 Patent reflected a new method for analyzing side-looking sonar data to detect fish, a fact confirmed by the evidence indicating that previous fish finders, including the Lowrance Fish ID product and the Humminbird 4 ID, would identify and display fish from two closely spaced echoes.

4. The Solli Application and BioSonies (Ehrenberg) Article

136. The other materials relied upon by Lowrance are the Solli or “PCT” foreign patent application and the Biosonics article by Ehrenberg.

137. The weight of the expert testimony presented at the hearing suggests that neither the Solli or Biosonics reference describes to a person with ordinary skill in the art a method of fish detection based upon the existence of minimum leading and trailing spaces as described in the ’912 Patent.

138. The evidence also suggests that numerous, substantial differences exist between these devices because the Humminbird fish finder identifies fish from two closely spaced echoes and does not use the Latham filter. The Court finds, and thus concludes, that these reference materials, even when combined with the Milano Patent, do not describe, suggest or render obvious the method of fish detection found in Claim 40 to a person with ordinary skill in the art.

139. On balance, the Court finds that Computrol made a strong showing that Low-ranee’s attack on the validity of the ’912 Patent would fail at trial in light of the prior art and references.

5. Obviousness of the Apparatus Claims

140. Claim 48 describes a display defining an “image of a substantially conical region representative of divergence of said sound pulses____” Lowrance’s evidence may suggest that Claim 48 is invalid because a display based upon the conical region is obvious from (a) sketches in the prior art depicting the operation of a sonar fish finder and (b) displays used in sector scanning sonar.

141. On balance, the Court finds Lowrance’s evidence of obviousness of the apparatus claims of the ’912 Patent to be relatively weak.

142. The evidence established that samples of similar prior art were before the patent examiner and, nonetheless, Examiner Pihulic allowed Claim 48.

143. In addition, the evidence presented at the hearing strongly indicates that certain prior art references are cumulative and therefore are entitled to little consideration.

144. Lowrance asserted it would have been simple and obvious for Weber to modify the square display of the Fish ID model to make it conical. However, no conical shaped regions appeared on the actual Fish ID display or on products shown in Lowranee’s 1989 and 1990 catalogs.

145. Lowrance has not demonstrated examples of prior displays using the combinations of the other features described in Claims 49-53, including fish icons (Claims 49), distance displays (Claims 50-52) and divergence of the conical region (Claim 53). That some of the various features might have appeared individually in other fish finders is not of significance and evidence of what Lowrance could have done with its displays is not relevant because what is patentable is the combination of elements described in Claims 48 through 53.

146. On balance, the clearly greater weight of the evidence establishes to the Court’s satisfaction, for purposes of these injunctive proceedings, a reasonable likelihood that Lowrance will not prove at trial by clear and convincing evidence that Claims 40, and 48 through 53 would have been obvious to one of ordinary skill in the art.

147. Based on all the evidence of record, the Court finds that Computrol made a strong showing of a reasonable likelihood that Lowrance’s attack on Claims 40 and 48 through 53 of the ’912 Patent would fail during a trial on the merits.

I. Irreparable Harm to Computrol

148. Computrol’s early attempt to penetrate the fish finder market was initially successful but was severely limited by Lowrance’s subsequent introduction of its fish finders with side-scanning capability in November, 1991. This effect is indicative of a loss of market share which is both difficult to recover and not entirely compensable in money.

149. The technology represented by the ’912 Patent is new. The field is competitive and technology changes quickly, so any technical advantage may be temporary and fleeting. Exclusivity is therefore necessary for Computrol to benefit fully from the competitive advantage that flows from innovation.

150. Lowrance has a very large presence in the recreational fish finder market and it will be very difficult for Computrol to make inroads into the market without the exclusivity guaranteed by protection of the patent law. Lowrance also has strong marketing and business association ties and relationships with the large national retail chains which makes it all the more difficult for Computrol to gain a presence in the market.

151. The evidence presented at the hearing demonstrates that Computrol continues to suffer financial losses that could well damage its viability and determine its survival or demise. Although granting an injunction will not ensure immediate financial stability or eventual survival for Computrol, it has shown that an increase in volume of sales of its side-finder technology could effect the economies of scale and increase profitability per unit.

152. Although delay in seeking the equitable relief of a preliminary injunction in a patent infringement matter may weigh against a patent holder, in the present case it is clear that Computrol proceeded in an expeditious manner to obtain injunctive relief.

J. Balance of the Hardships

153. Lowrance is a large company and is not dependent upon sales of its ScanPac aceessory product because it has other product lines directed at markets other than the sport and recreational fishing industry.

154. Computrol is a small company whose principal product line is its line of recreational fish finders with side-looking fish detection capability.

155. Computrol developed a strategy to achieve profitability through development, manufacture, and market of embodiments of the invention claimed in the ’912 Patent.

156. Lowranee has diverse product lines and it will not be precluded from manufacturing and selling fish detectors without infringing side-scanning capability as it had done prior to 1991.

157. In the ease of an injunction limited to the ScanPae accessory item, Lowranee would still be able to sell the Magna II and related products for use in their down-looking mode.

158. In fiscal year 1992, Lowranee sold a total of [REDACTED & UNDER SEAL] items for total gross sales of [REDACTED & UNDER SEAL]

159. In fiscal year 1993, Lowranee sold a total of [REDACTED & UNDER SEAL] items for total gross sales of [REDACTED & UNDER SEAL]

160. In partial fiscal year 1994, from August, 1993 to January, 1994, Lowranee sold a total of [REDACTED & UNDER SEAL] for total gross sales of [REDACTED & UNDER SEAL]

161. Sales of the optional ScanPae attachment itself, an accessory device which enables certain Lowranee down-looking sonars to side-scan, amount to [REDACTED & UNDER SEAL] percentage of Lowrance’s total sales, which were nearly [REDACTED] in 1992 and nearly [REDACTED in 1993. & UNDER SEAL]

162. Lowrance’s evidence demonstrates that the Magna series of sonar fish finders manufactured by Lowranee was successful, even before the addition of the side-scan optional attachment, because of its high-definition, high-contrast screen, its on-screen operator’s menus, name recognition, environmentally acceptable and compact packaging, and other factors.

163. The Court finds that the Magna series and other Lowranee down-looking products with side-scan capability would continue to be successful even in the absence of the availability of the optional ScanPae accessory item.

164. In addition, the testimony of Weber strongly suggested that the Lowranee down-looking fish detection system worked as well when turned on its side as the alleged infringing side-looking ScanPae accessory. Based on this evidence, it appears that Lowrance is able to minimize the effect of an injunction by simply substituting the down-looking system for the side-looking method in dispute here.

IV.

CONCLUSIONS OF LAW

1. To the extent any findings of fact can be considered to be or are deemed to be conclusions of law, they are incorporated by reference into these conclusions of law.

2. This Court has jurisdiction over the parties and the subject matter of this lawsuit, and venue is proper. 28 U.S.C. §§ 1338, 1400(b), 2201, and 2202.

3. The United States patent system has its foundation in the Constitution, which gives Congress the power “to promote the Progress of Science and Useful Arts, by securing for limited times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.” U.S. Const., Art. I, § 8.

4. A duly issued patent gives the patent owner the right to exclude others from making, using or selling the patented invention for a limited time (17 years). 35 U.S.C. § 154.

5. Part II of this Report and Recommendation addressing the legal standards governing issuance of injunctions in patent infringement actions is incorporated herein by reference.

6. In a preliminary injunction setting, the Court need not definitively interpret the patent claims, determine whether infringement has occurred, or rule upon whether the patent is valid. Rather, the Court must only determine whether the patentee has made the requisite showing that it is entitled to preliminary injunctive relief. See Illinois Tool Works, Inc. v. Grip-Pak, Inc., 906 F.2d 679, 681 (Fed.Cir.1990); see also Hybritech, 849 F.2d at 1451 and H.H. Robertson Co., 820 F.2d at 384. In the same respect, because this is a motion for preliminary relief, “neither party was required to prove his case in full” and the Court’s findings and conclusions contained in this decision are “not binding at trial.” Illinois Tool, 906 F.2d at 681 (emphasis in original). See also Nutrition 21 v. U.S., 930 F.2d at 870.

A. Infringement of the ’912 Patent

7. The determination of patent infringement is a two step process. First, the claims at issue must be properly interpreted and construed. Second, the court must determine whether the properly interpreted claims encompass the accused device or method. Conroy v. Reebok Int’l Ltd., 14 F.3d 1570, 1572-73 (Fed.Cir.1994); Hybritech, Inc. v. Abbott Laboratories, 849 F.2d 1446, 1455 (Fed.Cir.1988).

8. Patent claims are construed in light of the specification, prior art, prosecution history, other claims and expert testimony. SmithKline Diagnostics v. Helena Lab. Corp., 859 F.2d 878, 882 (Fed.Cir.1988).

9. Expert testimony is especially important in patent cases involving complex scientific principles and evidence. Moeller v. Ionetics, Inc., 794 F.2d 653, 657 (Eed.Cir.1986). Because this action involves complex and sophisticated issues of sonar, microelectronics, digital signal processing, and microprocessing, the Court concludes that the instant action is such a case where expert testimony is of particular weight, significance and importance. However, in light of the widely differing views and opinions expressed by these experts, not all can be correct and thus accepted by the Court in these proceedings. Accordingly, those expert opinions which are less credible and cannot be reconciled have been rejected by the Court.

10. Ultimately, the interpretation of the scope of the claims is a matter of law and is reviewed under a de novo standard. McGill, Inc. v. John Zink, 736 F.2d 666 (Fed.Cir.