Full opinion text
LONGOBARDI, Chief Judge. I. NATURE AND STAGE OF THE PROCEEDINGS This is the opinion relative to the damages phase of an action for patent infringement originally filed by Plaintiff Mobil Oil Corporation (“Mobil”) against Defendant Amoco Chemical Company (“Amoco”). Docket Item (“D.I.”) 1. At a trial on the issues of infringement, willful infringement, validity and enforceability of Mobil’s U.S. Patent Nos. 3,702,886 (“the ’886 patent”); Re. 29,857 (“the ’857 patent”); 3,856,872 (“the ’872 patent”); and 4,049,573 (“the ’573 patent”), D.I. 240 at 1-3, ¶ 7, the Court found that Mobil’s patents were not invalid. The Court also found that Amoco did not infringe any claims of the ’573 patent, Amoco literally infringed claim 6 of the ’872 patent and Amoco infringed claims 1 and 3 of the ’886 patent under the doctrine of equivalents and claims 1 and 2 of the ’857 patent under the doctrine of equivalents. D.I. 151; see Mobil Oil Corp. v. Amoco Chemicals Corp., 779 F.Supp. 1429 (D.Del.1991), aff'd, 980 F.2d 742 (Fed.Cir.1992) (per curiam). The Court further found that: (1) Amoco had not willfully infringed the ’886, ’872 or ’857 patents; (2) the case was not an exceptional one; and (3) Mobil’s remedies, including damages, would be considered in a subsequent phase of litigation. D.I. 151. In an eleven-day trial, the Court heard testimony from twelve witnesses who appeared live and one witness who appeared by videotape and received designated deposition testimony from at least thirty other witnesses. The damages trial transcript exceeds twenty-seven hundred pages and the exhibits admitted into evidence number more than sixteen hundred. It is upon this record that the Court bases its decision. II. STATEMENT OF JURISDICTION The Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1338(a) and 2201. Venue is proper under 28 U.S.C. §§ 1391 and 1400(b). III. BACKGROUND AND FACTS For a detailed discussion of the technology and the facts surrounding Amoco’s infringement, see this Court’s liability opinion, Mobil Oil Corp. v. Amoco Chemicals Corp., 779 F.Supp. 1429 (D.Del.1991), aff'd, 980 F.2d 742 (Fed.Cir.1992) (per curiam). A. MOBIL’S INFRINGED PATENTS Amoco infringed three of Mobil’s patents, two of which, the ’857 and ’872 patents, cover a xylene isomerization process and are referred to as the “process patents.” The third patent, the ’886 patent, covers the composition of ZSM-5 catalyst and is referred to as the “composition of matter” or “composition” patent. The ’857 patent expired on February 5, 1991; the ’872 patent expired on December 24, 1991; and the ’886 patent expired on November 14, 1989. D.I. 240 at Exhibit J-2; see also Defendant’s Exhibit (“DX”) 1903; DX 1904; DX1905. B. AMOCO’S PARAXYLENE OPERATIONS Amoco manufactured paraxylene (“PX”) at four separate facilities: two located in Decatur, Alabama (the Decatur No. 1 and No. 2 units); and two located in Texas City, Texas (the Texas City No. 1 and No. 2 plants). Ely Transcript (“Tr.”) 2564. The Texas City PX units used an extracted feedstock from Amoco’s Texas City refinery. D.I. 240 at Exhibit J-2, ¶ 9. The Decatur PX units used an unextracted feedstock which contains certain non-aromatic or saturate impurities. Ely Tr. 2568-69. The Texas City No. 1 plant began operating in 1967 and is still in operation. D.I. 240 at Exhibit J-2; see also Ely Tr. 2564-65. It used the Octafining catalyst from 1967 to 1973, at which time, it switched to Amocofining. D.I. 240 at Exhibit J-2, ¶ 11. In 1976, Amoco installed Mobil’s MVPI catalyst at Texas City No. 1 and, in 1983 Amoco, replaced MVPI with its AMSAC catalyst. Ely Tr. 2580-84; Plaintiffs Exhibit (“PX”) 2354; DX 1929; D.I. 240 at Exhibit I. The Texas City No. 2 plant began operating in 1967 or 1968 with Octafining but switched to Amoco-fining in 1975. Ely Tr. 2565; D.I. 240 at Exhibit J-2, ¶ 13. Amoco replaced Amoco-fining with MVPI at Texas City No. 2 in 1977 and replaced MVPI with AMSAC in 1984. PX 2354; DX 1929; D.I. 240 at Exhibit I. The Decatur No. 1 plant began operating in 1968 and was closed in 1979 because its PX capacity was not needed by Amoco. Ely Tr. 2564-66. Amoco installed the Octafining catalyst at Decatur No. 1 in 1968 and replaced Octafining with Amoeofining in 1974 which was used until the unit was closed. DX 1929. The Decatur No. 2 plant began operating in 1978 and is still in operation. Ely Tr. 2566. Although the Decatur No. 2 unit was designed to use the Amoeofining catalyst, it began its operations with Mobil’s MVPI. Amoco replaced MVPI with its AM-SAC catalyst in 1980. Ely Tr. 2567-68; PX 2354; DX 1929. The Texas City Nos. 1 and 2 and the Decatur No. 2 units produced approximately 18.59 billion pounds of PX using AMSAC catalysts during the period of infringement. PX 2354; D.I. 240 at Exhibit I. C.MOBIL’S LICENSING OF THE VPI TECHNOLOGY In 1973, Mobil first utilized a ZSM-5 catalyst to produce PX in its plant in Naples, Italy. D.I. 1544; Peniek Tr. at 838. Mobil calculated the benefits of its new MVPI process and catalyst to be between 0.6-1.0 cents per pound of PX produced. DX 1288. Due to the commercial success of the VPI technology at Naples and Mobil’s relatively small xylenes operation worldwide, DX 1374.1 (less than 3%), Mobil decided to license the VPI process and lease its MVPI catalyst. DX 1544; Penick at 839. Mobil began the licensing and leasing of its MVPI technology in 1975. DX 1544; Penick Tr. 839. Although it debated about selling the catalyst, Mobil chose to lease the catalyst for two primary reasons: (1) it enabled Mobil to maximize its income; and (2) Mobil would retain title of the catalyst and “thus could control its use and disposition.” DX 1544; Penick Tr. 840. Mobil fixed its lease rates to be cost-neutral with the prior technology catalyst used in xylene isomerization. Green Tr. 2365-66, 2369; DX 1544. Under Mobil’s standard MVPI catalyst lease, the licensee was to pay Mobil: $3.00 per pound of catalyst on delivery; $3,125 per pound quarterly for the first two years; $2.75 per pound quarterly for the third year; and $2.50 per pound quarterly after three years. See, e.g., DX 1290. Initially, Mobil decided it would accept 25% of the low end of the 0.6-1.0 cents per pound benefits, or 0.15 cents per pound of PX produced, as a royalty on its process patents. DX 1288. After negotiations, however, Mobil established its final VPI process license rates at: 0.25 cents per pound for the first 200 million pounds of PX produced each year; 0.20 cents per pound for the next 300 million pounds; and 0.15 cents per pound for any PX produced beyond 500 million pounds. DX 1288; see, e.g., DX 1357. Beginning in 1975, Mobil offered its standard VPI process license and MVPI catalyst lease rates to PX manufacturers. D.I. 273 at 5, ¶ B1.9. Mobil licensed its MVPI technology at the above standard rates to eleven licensees/lessees (including Amoco) by April of 1980. Specifically, Mobil entered into VPI process licenses and MVPI catalyst lease agreements with: Tenneco Oil Company (“Tenneco”) in December of 1975, DX 1884-85; Sun Petroleum Products Company (“Sun”) in June of 1976, DX 1888-89; Hercules Incorporated (“Hercules”) in June of 1976, DX 1890-91; Montedison S.p.A. (“Montedison”) in July of 1976, DX 1886-87; Teijin Petrochemical Industries Limited (“Teijin”) in August of 1976, DX 1892-93; Exxon Chemical Company U.S.A. (“Exxon”) in August of 1976, DX 1896-97; Amoco in October of 1976 and January of 1978, DX 1290,1296 and 1308; Essochem Benelux B.V. (“Essochem”), an Exxon affiliate, in November of 1976, DX 1898; Tonen Sekiyukagaku K.K. (“Tonen”), an Exxon affiliate, in January of 1977, DX 1899; St. Croix Petrochemical Corporation (“St. Croix”), a Hercules affiliate, in September of 1977, DX 1900; and Idemitsu Petrochemical Company, Limited (“Idemitsu”) in April of 1980, DX 1901-02. By 1980, Mobil’s MVPI technology was utilized in fourteen xylene isomerization units worldwide. DX 1236; DX 1950; D.I. 240 at J-2, ¶ 34. Even Mobil’s own witnesses and documents referred to the MVPI license and lease rates as “standard”, “established”, “uniform”, “fixed” and “the same.” See, e.g., Penick Tr. 683, 739, 800; Huggett Tr. 1720-21, 1734; Green Tr. 2370; DX 1342; DX 1357; DX 1358; DX 1505; DX 1508; DX 1676; DX 1300-R. Further, once Mobil had set its rates, it did not change them. All of Mobil's licenses and leases entered into within the period from December of 1975 to April of 1980 were at Mobil’s standard rates. Moreover, from 1975 until 1988, Mobil continued to offer the same MVPI license and lease rates listed above to its prospective licensees. Specifically, Mobil offered MVPI licenses and leases at its standard rates to the following companies: Indian Petrochemicals in April or May of 1980, Penick Tr. 737, 872; Phillips Petroleum in July of 1981, DX 1306; DX 1959; Mitsubishi Chemical Industries, Ltd. in October of 1977, DX 1360; Penick Tr. 863; Shell Internationale Research (“Shell”) in August of 1988, DX 1537; Chevron Research Company in May of 1977, DX 1305; Chinese Petroleum, Tr. 2505 (stipulation); Kohap (a Korean company), id; Veba-Chemie, id.; and BP California, id.. For various reasons none of the companies listed above accepted Mobil’s standard MVPI license and lease arrangement. Id. These numerous rejections led the Court to the conclusion that Mobil’s standard rates were indeed about all the market could bear. Professor Myers supported this conclusion by analogizing the rejections of Mobil’s VPI technology to a car dealer who was not moving his inventory: Now, in that situation, you as the car dealer would not start raising your prices, and you would certainly not conclude from the evidence [of the rejections] in front of you that the price ought to be held a lot higher than it actually is, even though you can’t tell for sure the reasons why your customers turned you down. Myers Tr. 1825. Common sense also supports this conclusion. The Court’s conclusion that Mobil’s standard rates were all the market could bear is further supported by the fact that Mobil was forced to give concessions to its existing MVPI licensees in order to keep them on board. Penick Tr. 880. Although he preferred to call them “accommodations”, Mr. Fagan acknowledged that one way Mobil maximized its licensing revenue was to offer accommodations “to licensees in order to keep them within the fold.” Fagan Tr. 2501. For example, Mobil gave concessions to: Exxon in February of 1978 (MVPI), DX 1491; DX 1421; Chevron in October of 1979 (MLPI), DX 1970; Idemitsu in May of 1981 (MHTI), DX 1610; DX 1599; Teijin in January of 1982 (DEIP), DX 1528; Arco in May of 1983 (MLPI), DX 1970; Teijin in January of 1984 (BDEIP); and St. Croix in January of 1988 (MVPI), DX 1586. D.I. 276 at Exhibit A (Mobil’s timeline); DX 1970. These concessions were quantified by Amoco’s expert witness, Mr. Sims. See DX 1801-Q. In fact, Mobil’s own licensing expert, Mr. Evans, testified that he was unaware of any instance when a Mobil xylene isomerization licensee asked Mobil for a concession and was not given one. Evans Tr. 1146. Professor Myers viewed the concessions as further evidence that the standard rates captured all of the value that the market was willing to pay for Mobil’s MVPI technology. Myers Tr. 1826. Furthermore, Mr. Penick stated that when the standard license and lease rates were set they were all the market would bear. Penick Tr. 800-03. Mr. Penick also testified that his impression that the MVPI rates were all the market would bear continued until he left Mobil in 1985. Penick Tr. 802-03. Mr. Pen-ick’s testimony is supported by Mr. Fagan who testified that, in October of 1980, he was “convinced he was making as much money as could be made” and that Mobil was lucky that its annual revenues for the MVPI licensing program were as high as they were. Fagan Tr. 2475-76; DX 1362. As stated above, Mobil licensed its VPI technology to Amoco at its standard rates in October of 1976. Although neither party expressly terminated the license agreement, this Court held that Amoco was in default of the licensing agreement because it stopped making the necessary royalty payments to Mobil. Mobil, 779 F.Supp. at 1501. Despite its policy against permitting others to experiment with ZSM-5, in 1979, Mobil began to make ZSM-5 samples available to non-Mobil parties. DX 1365; Penick Tr. 906-911; see also discussion of Georgia-Pacific Factor 4, infra Section F. In addition, although Mobil never licensed the right to make ZSM-5 catalyst for use in xylene isom-erization, it did license the right to make ZSM-5 for other uses. In particular, Mobil licensed Universal Oil Products (“UOP”) to make ZSM-5 in December of 1992; Chevron in July of 1988; W.R. Grace in January of 1985; and Union Carbide (in settlement of litigation) in December of 1985. D.X 1970; Penick Tr. 752-757. IV. ISSUES PRESENTED AT TRIAL The two principal issues before the Court in the damages phase of this case are: (1) the amount of damages adequate to compensate Mobil for Amoeo’s infringement of the three patents at issue; and (2) the rate at which prejudgment interest is to be calculated. V. DISCUSSION A. DAMAGES STANDARD In determining the appropriate amount of damages to award Mobil, the Court is bound by 35 U.S.C. § 284 which provides: “Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.” 35 U.S.C. § 284. Necessarily, Mobil, as the claimant, bears the burden of proof on the issue of damages. See, e.g., BIC Leisure Products, Inc. v. Windsurfing International, Inc., 1 F.3d 1214, 1217 (Fed.Cir.1993); Fromson v. Western Litho Plate and Supply Co., 853 F.2d 1568, 1574 (Fed.Cir.1988). The appropriate measure of compensatory damages may be determined by one of three methods: (1) lost profits; (2) an established royalty; or (3) a reasonable royalty. Chisum, 5 Patents § 20.03 at 20-77. A determination of lost profits or an established royalty are methods of assessing the actual damages suffered by the patentee. Trell v. Marlee Elec. Corp., 912 F.2d 1443, 1445 (Fed. Cir.1990); Del Mar Avionics, Inc. v. Quinton Inst. Co., 836 F.2d 1320, 1328 (Fed.Cir.1987) (“[I]t is reasonable to assume that [an established] royalty is a fair measure of the actual damage to a patentee who has authorized others to practice the patented invention.”) (emphasis added). A reasonable royalty, on the other hand, is a measure of recovery “intended to provide a just recovery to persons who for evidentiary or other reasons cannot prove lost profits or an established royalty.” Hayhurst v. Rosen, 1992 WL 123178 (E.D.N.Y.1992); Chisum, 5 Patents § 20.02[3] at 20-159. Mobil asserts that neither lost profits nor an established royalty are the correct measure of damages. Rather, Mobil contends that the Court must conduct a hypothetical negotiation between the parties at the time the infringement began to determine what would constitute a “reasonable” royalty in this case. Mobil claims that a reasonable royalty would amount to 50% of Amoco’s anticipated economic benefits from its infringement. Needless to say, Amoco disagrees. Instead, Amoco argues that Mobil had an established royalty which should be used to determine Mobil’s damages. Amoco contends that Mobil had instituted standard, established rates for its MVPI process license and catalyst lease by offering and/or granting MVPI process licenses and catalyst leases at the same rate to virtually the entire PX industry. B. FRAMEWORK FOR ANALYSIS: SEPARATING THE PATENTS Mobil argues that Amoco infringed a unique “package” of rights which it has never licensed before including: (1) the right to make or have made and use infringing catalysts under the ’886 patent; (2) the right to use infringing catalysts for xylene isomerization under the ’857 patent; and (3) the right to use infringing catalysts to practice xylene isomerization under the ’872 patent. D.I. 273 at 2, ¶ B1.1; DX 2747. In trying to determine the appropriate amount of damages to compensate Mobil for Amoco’s infringement, the Court found it necessary to separate the bundle of rights infringed by Amoco into two parts: (1) process patent rights; and (2) composition of matter patent rights. The Court came to this conclusion because it was unable to perform a single analysis with respect to all of the patent rights infringed. See Stickle v. Heublein, Inc., 716 F.2d 1550, 1561 n. 8 (Fed.Cir.1983) (“it may well be necessary to determine damages separately for each ... patent”). For the reasons stated in Section C, infra, the Court finds that Mobil had an established rate with respect to the process patents at issue and that the established rate is reasonable. The Court, however, was not able to find an established rate for the composition of matter patent rights. See infra Section El. Because of the overwhelming evidence supporting an established rate with respect to the process patents, the Court felt unjustified in performing a Georgiar-Pacific hypothetical negotiation analysis with respect to these rights. This is especially true in light of the high degree of artificiality involved in such an analysis. Fromson, 853 F.2d at 1574 (“Determining a fair and reasonable royalty is often ... a difficult judicial chore, seeming often to involve more the talents of a conjurer than those of a judge.”); American Medical Systems, Inc. v. Medical Engineering Corp., 794 F.Supp. 1370, 1394 n. 15 (E.D.Wis. 1992) (“Determining a reasonable royalty from a hypothetical negotiation is not easy; the process is truly artificial.”), aff'd in part, rev’d in part, 6 F.3d 1523 (Fed.Cir.1993) cert. denied, — U.S. -, 114 S.Ct. 1647, 128 L.Ed.2d 366 (1994). While the Court is mindful of the testimony of Mr. Evans, a licensing expert for Mobil who seemed to say that the process rights and composition rights should be viewed as a “package” and, as such, would not be split up for separate negotiations in the real world, Evans Tr. 1034-37, the Court felt it had no meaningful choice other than to split up the rights involved and analyze them separately. Moreover, the Court’s separation of the process patents from the composition of matter patent simplifies one of the issues in this case. Mobil asserts that it is entitled to recover for all of the rights infringed by Amoco until the last of the three patents expires. Because the composition of matter patent expired first on November 14, 1989 and the two process patents did not expire until February 5, 1991 (’857 patent) and December 24, 1991 (’872 patent), D.I. 240 at Exhibit J-2, ¶¶ 1-3, Mobil is requesting a recovery for its catalyst rights under the composition patent beyond the period of Amoco’s infringement of those rights. If the Court were to follow the analysis suggested by Mobil and find one number which would encompass all of the rights infringed by Amoco, such an approach could arguably be found to make sense. See Brulotte v. Thys Co., 379 U.S. 29, 33-34, 85 S.Ct. 176, 179-180, 13 L.Ed.2d 99 (1964). However, this ignores the reality that Mobil itself created when it divided its rights under the process patents from its rights under the composition of matter patent by separately licensing and leasing them. In fact, after Mobil’s composition of matter patent expired, others began making and selling ZSM-5 catalyst. Green, quoted at Smith Tr. 1398. In light of Mobil’s own separate treatment of the process patents and the composition of matter patent and because the Court has separated the rights infringed by Amoco in order to better fix an award of damages, the Court finds it entirely inappropriate and “unlawful per se” to extend the scope of Mobil’s composition of matter patent beyond its expiration date. Id. at 32, 85 S.Ct. at 179; Zenith Radio Corp. v. Hazeltine, 395 U.S. 100, 136-137, 89 S.Ct. 1562, 1583-1584, 23 L.Ed.2d 129 (1969); Sanford Redmond Inc. v. Mid-America Dairymen, Inc., 29 U.S.P.Q.2d 1222, 1226, 1992 WL 57090 (S.D.N.Y.1992) (“The use of the patent, therefore, to obtain an agreement for payment of compensation beyond the expiration of the patent renders the agreement unlawful per se.”), aff'd, 993 F.2d 1534 (2d Cir.), cert. denied, — U.S. -, 114 S.Ct. 310, 126 L.Ed.2d 258 (1993). Thus, the period for damages with respect to the catalyst rights infringed under the ’886 patent extends from May of 1980 to November 14, 1989. C. MOBIL HAD AN ESTABLISHED ROYALTY RATE FOR ITS VPI PROCESS PATENTS l. THE LAW: ESTABLISHED ROYALTY AS REASONABLE ROYALTY Keeping in mind that section 284 commands that damages should be no less than a reasonable royalty, the Court notes that the Federal Circuit has held that a reasonable royalty “may be based upon an established royalty, if there is one, or if not upon a hypothetical royalty resulting from arm’s length negotiations between a willing licensor and a willing licensee.” Hanson v. Alpine Valley Ski Area, Inc., 718 F.2d 1075, 1078 (Fed.Cir.1983); see also Rude v. Westcott, 130 U.S. 152, 165, 9 S.Ct. 463, 468, 32 L.Ed. 888 (1889) (“It is undoubtedly true that where there has been such a number of sales by a patentee of licenses to make, use and sell his patents, as to establish a regular price for a license, that price may be taken as the measure of damages against infringers.”); BIC Leisure Products, 1 F.3d at 1219 (In holding that district court erred by applying lost profit analysis instead of lost royalty analysis, Federal Circuit noted that: “Windsurfing itself set the value of its patent rights by licensing its technology to nearly every company supplying sailboards in the United States without competing itself in most sailboard markets.”); Studiengesellschaft Kohle m.b.H. v. Dart Indus., Inc., 666 F.Supp. 674, 680 n. 6 (D.Del.1987) (“An established royalty rate is used in a case in which prior negotiated royalties to the time of infringement are paid by sufficient persons to indicate the reasonableness of the rate, are uniform, are not paid under threat of litigation, and are for comparable rights under the patent.”), aff'd, 862 F.2d 1564 (Fed.Cir.1988). Moreover, if an established royalty is shown to exist, such a royalty is generally deemed the best measure of damages for infringement. Hanson, 718 F.2d at 1078 (“ ‘Where an established royalty rate for the patented inventions is shown to exist, the rate will usually be adopted as the best measure of reasonable and entire compensation.’”), (quoting Tektronix, Inc. v. United States, 552 F.2d 343, 347 (Ct.Cl.1977), cert. denied, 439 U.S. 1048, 99 S.Ct. 724, 58 L.Ed.2d 707 (1978)); see also Clark v. Wooster, 119 U.S. 322, 326, 7 S.Ct. 217, 218-19, 30 L.Ed. 392 (1886) (“It is a general rule in patent causes that established license fees are the best measure of damages that can be used.”); Trell, 912 F.2d at 1445-46 (Federal Circuit expressed preference for established royalty; where none exists, then courts must use hypothetical negotiation analysis); Fromson, 853 F.2d at 1574 (“Lacking adequate evidence of an established royalty, the court was left with the judge-created methodology described as ‘hypothetical negotiations between willing licensor and willing licensee.’ ”); Nickson Indus. v. Rol Mfg., 847 F.2d 795, 798 (Fed.Cir.) (“Where an established royalty exists, it will usually be the best measure of what is a ‘reasonable’ royalty.”), cert. denied, 474 U.S. 843, 106 S.Ct. 131, 88 L.Ed.2d 107 (1988). In order for a patentee’s negotiated royalties to constitute an “established” royalty they must meet five criteria: (1) they must be paid or secured before the infringement began; (2) they must be paid by a sufficient number of persons to indicate the reasonableness of the rate; (3) they must be uniform in amount; (4) they must not have been paid under threat of suit or in settlement of litigation; and (5) they must be for comparable rights or activity under the patent. Studiengesellschaft, 666 F.Supp. at 680 n.6; see also Trell, 912 F.2d at 1446-47 (Fed.Cir.1990) (to be “established”, royalty must be paid by sufficient number of persons to indicate general acquiescence in its reasonableness and must be for “commensurate” use of patent); Chisum, 5 Patents § 20.03[2][b]. Because of these stringent criteria, few courts have actually found an established royalty. See, e.g., Julien v. Gomez & Andre Tractor Repairs, Inc., 512 F.Supp. 955 (M.D.La.1981). While the Third Circuit seemed to indulge a presumption that an established royalty, if proven, is the proper measure of damages, Trio Process Corp. v. L. Goldstein’s Sons, Inc., 612 F.2d 1353, 1358-60 (3d Cir.), cert. denied, 449 U.S. 827, 101 S.Ct. 91, 66 L.Ed.2d 30 (1980), other courts have been less clear about their treatment of an established royalty. Almost all courts recognize, however, that an established royalty may be too low to be “reasonable” under certain circumstances. See, e.g., Chisum, 5 Patents § 20.03[2][d]. For example, courts have stated that established rates which are artificially depressed because the patent had not yet gained public recognition or acceptance or due to widespread infringement or to avoid challenges to the patent, may not constitute a reasonable royalty. See id.; Nickson, 847 F.2d at 798; Trio Process, 612 F.2d at 1359. A noted treatise on patent law summarizes the law pertaining to the “established royalty” rule as follows: A patent owner may recover as a measure of damages the royalty rate established by prior actual licenses for acts comparable to those engaged in by the in-fringer without authority. An established royalty rate is a uniform one freely negotiated and paid by a sufficient number of licensees. Rates agreed to under threat of suit or in settlement of litigation are not conclusive. While existence of an established royalty usually sets the minimum recovery by a patent owner for infringement, it does not necessarily set the maximum recovery. Such an established royalty does not preclude the patent owner from recovering a greater sum under a reasonable royalty theory where the established rate was unfairly depressed because the patent had not yet gained recognition or because of widespread infringing activity. Chisum, 5 Patents § 20.03[2] at 20-145 (emphasis in original). Another noted authority on patent law has agreed that “[w]here an established royalty exists, it will usually be the best measure of what is a reasonable royalty. Nonetheless, a reasonable royalty may be greater than an established royalty.... But the patentee must come forward with evidence that an established royalty rate makes the award inadequate.” Robert L. Harmon, Patents and the Federal Circuit, § 12.2(e) at 423 (2d ed. 1991) (footnote omitted). 2. APPLICATION OF THE LAW TO THE FACTS OF THIS CASE Mobil had an established royalty rate for its VPI process patents at issue in the present case. In fact, the Court thinks that there could be no clearer case for the existence of an established royalty rate. The Court will address each of the five criteria for an established rate in turn. a. MOBIL’S RATES WERE PAID OR SECURED BEFORE AMOCO’S INFRINGEMENT BEGAN As set forth above, Mobil had established “standard” rates for its MVPI process in 1975. By the time Amoco’s infringement began in May of 1980, D.I. 240 at Exhibit J-2, Mobil had licensed eleven companies under those same established rates. Thus, it is clear that Mobil’s established rates were paid before Amoco’s infringement began. b. MOBIL’S RATES WERE PAID BY A SUFFICIENT NUMBER OF LICENSEES, TO INDICATE THE REASONABLENESS OF THE RATES As already stated, Mobil’s standard MVPI license and lease rates were paid by eleven chemical companies including large companies like Sun, Hercules and Exxon (as well as Amoco). In light of the size and sophistication of these companies and Mobil’s statements and admissions that it believed its standard rates to be reasonable, see, e.g., DX 1300-R; Huggett Tr. 1724, the Court finds that the rates were paid by a sufficient number of licensees to indicate the reasonableness of the rates. c. MOBIL’S RATES WERE UNIFORM As already explained, Mobil’s standard MVPI license rates were uniform with regard to each of its eleven licensees and lessees. Under Schedule A of Mobil’s standard VPI process license, the licensee was to pay Mobil: 0.25 cents per pound for the first 200 million pounds of PX produced each year; 0.20 cents per pound for the next 300 million pounds; and 0.15 cents per pound for any PX produced beyond 500 million pounds. All of the eleven MVPI licensees signed license agreements incorporating Mobil’s standard rates. Moreover, Mobil even continued to offer its MVPI process license at the same standard rates until at least 1988. While evidence was introduced to show that Mobil had later accommodated some of its licensees with rate reductions or other concessions, no evidence whatsoever was produced to show that anyone had ever paid or been offered a similar MVPI process license for rates higher than Mobil’s standard rates. Accordingly, the Court finds that Mobil’s standard rates were uniform. d. MOBIL’S RATES WERE NOT PAID UNDER THREAT OF SUIT OR IN SETTLEMENT OF LITIGATION Mobil has not produced any evidence that its standard MVPI process license rates were paid under threat of suit or in settlement of litigation. Friedlander Tr. 2230; Evans Tr. 1204. In fact, one of Mobil’s former employees, Mr. Huggett, admitted that there was no pending litigation involving the patents covering the MVPI process and catalyst when Mobil set its standard licensing (and lease) rates. Huggett Tr. 1779-80. Mr. Huggett further stated that when Mobil began its licensing of the MVPI process and catalyst patents it assumed that those patents were valid. Id. e. MOBIL’S RATES WERE FOR COMPARABLE RIGHTS UNDER THE PATENTS Mobil’s standard MVPI process license granted patent rights comparable to those infringed by Amoco. Mobil argues that the patent rights infringed by Amoco in this case are not comparable to the rights which were licensed under its standard MVPI license. Specifically, Mobil argues that because it had not licensed anyone to use an infringing catalyst in the MVPI process, Amoco’s use of its AMSAC catalysts in the MVPI process is not comparable to the rights granted under its standard license. The Court, however, disagrees with Mobil on this issue. It is common knowledge that the word “comparable” means “similar” rather than “exactly the same.” The rights needed by Amoco to use its AMSAC catalyst in the VPI process are similar to the rights granted to the VPI licensees. The standard VPI process license granted the licensee a world-wide, non-exclusive license under all of Mobil’s patents covering the VPI process (but expressly excluding catalyst compositions and methods of catalyst manufacture) to practice the VPI process in any VPI unit. See, e.g., DX 1296. The rights infringed by Amoco were similar or “comparable” to the rights granted under the standard license. Specifically, Amoco practiced the VPI process under two of Mobil’s patents. The fact that Amoco did so with an infringing catalyst does not affect the comparability of the rights at issue. The focus of the license is on the right to use the VPI process not on the catalyst that is used. This is confirmed by Mr. Green’s testimony in the liability trial that it would be unnecessary to “renegotiate” the licenses under the process patents: [I]f someone were practicing the MVPI process technology under license to Mobil and switched to using their own ZSM-5 catalyst — okay—and continued to pay us process royalties under the MVPI process license, we would not sue them over the MVPI process license, but we most certainly would file suit about infringing our ’886 patent. Green Liability Tr. 894. Moreover, the standard license specifies that the licensee is not required to obtain VPI catalyst from Mobil. Id. at § 3.3. As Mobil successfully argued at the liability trial, section 3.3 was inserted to avoid an illegal tie-in between the process license and the lease of catalyst. Mobil, 779 F.Supp. at 1499-1500. Additionally, it is significant to note that Mobil’s standard license agreements included several rights for which Amoco need not have obtained a license under the hypothetical negotiation including: (1) rights under all of Mobil’s patents relating to VPI; (2) the right to Mobil’s VPI know-how; (3) the right to Mobil’s technical assistance; (4) worldwide patent rights; (5) process guarantees; and (6) indemnification. Smith Tr. 1382-85; DX 1939. Thus, if the Court were to depart from Mobil’s standard, established royalty rates with respect to the process patents, it would most likely do so in a downward rather than upward direction. Mobil argues that the Court’s liability opinion precludes a finding of “comparable rights.” In support of its argument, Mobil points to the Court’s language that “the license agreement was intended to allow licensees to obtain VPI catalyst from ... an authorized manufacturer” and that “Mobil has never licensed any third parties to make the VPI catalyst.” Mobil, 779 F.Supp. at 1499, 1500. The portion of the liability opinion relied upon by Mobil holds two things, neither of which support Mobil’s argument on this issue: (1) the standard license agreement does not grant the licensee the right to manufacture its own catalyst under the ’886 patent; and (2) Amoco defaulted on its license with Mobil' because it‘ failed to make the required royalty payments. Mobil, 779 F.Supp. at 1500-01. The fact that the license agreement does not grant the licensee the right to manufacture its own catalyst deals with the right to manufacture catalyst under the ’886 patent and not the right to practice the VPI process. See Green Liability Tr. 894. The damages for Amoco’s infringement of the right to manufacture and use an infringing catalyst will be determined infra at Section E. Here, the Court is concerned solely with fixing the appropriate amount of damages for Amoco’s unauthorized use of the VPI process. Similarly, the Court’s ruling that Amoco defaulted on its license and therefore is not entitled to rely upon its license as a defense to infringement does not affect the arguments at issue here. After reviewing the entire record, the Court concludes that the rights infringed by Amoco under Mobil’s process patents are “comparable” to the rights granted under Mobil’s standard process license. Thus, the five criteria for an established royalty are satisfied and the Court concludes that Mobil had an established royalty with respect to the process patents infringed by Amoco in this ease. D. MOBIL’S ESTABLISHED ROYALTY IS A REASONABLE ROYALTY The Court’s analysis is not complete upon finding that established rates exist for the rights infringed by Amoco under Mobil’s process patents. Because section 284 prohibits the Court from awarding damages less than a reasonable royalty, the Court must also determine whether the established royalty is a “reasonable royalty.” 35 U.S.C. § 284. As previously stated, almost all courts recognize that an established royalty may be too low to be “reasonable” under certain circumstances. See, e.g., Chisum, 5 Patents § 20.03[2][d]. For example, courts have noted that established rates which are artificially depressed because the patent had not yet gained public recognition or acceptance or due to widespread infringement or to avoid challenges to the patent, may not constitute a reasonable royalty. See id.; Nickson, 847 F.2d at 798; Trio Process, 612 F.2d at 1359. For the reasons stated below, the Court finds that Mobil’s established royalty on its process patents is a reasonable royalty. 1. MOBIL’S ESTABLISHED RATES ARE NOT ARTIFICIALLY DEPRESSED FOR ANY REASON Courts have acknowledged that an established royalty rate should not be used to determine an infringer’s damages where that rate has been artificially depressed. Mobil’s own expert licensing witness, Mr. Evans, testified that Mobil’s standard MVPI license and lease rates were not artificially depressed. Evans Tr. 1204. a. Established Rates Were Not Artificially Depressed Due to Widespread Infringement It is undisputed that the standard MVPI rates were not set during a period of widespread infringement. Evans Tr. 1204; Friedlander Tr. 2230. Thus, Mobil’s established rates cannot be found to be unreasonable on this basis. b. Established Rates Were Not Artificially Depressed to Avoid Challenges to the Patents The evidence shows that the standard rates were not set artificially low to avoid challenges to the patent. To the contrary, Mobil recognized that its rates might be so high as to provoke challenges to the patents. As Mr. Huggett stated in November of 1976: “There is still sufficient incentive for the licensees to search for alternative solutions to avoid the heavy payments they have to make and we must be prepared to meet competition, perhaps by lowering our fees at some point.” DX1300-R. Further, Mr. Penick testified that Mobil’s licensing policy was to charge “as much as the market would bear” for its MVPI technology. Penick Tr. 788-89. Mr. Fagan confirmed this policy stating that it was his job to “make as much money as possible” on a long-term basis over the life of the licensing program. Fagan Tr. 2453-54. Moreover, Mr. Penick admitted that Mobil believed that its patent position was not likely to be challenged by others when the MVPI license and lease rates were first set. Penick Tr. 788. Mr. Huggett also testified that Mobil assumed its MVPI patents were valid when Mobil set its standard rates and began its licensing program. Huggett Tr. 1779-80. In light of this evidence and the rest of the record, including expert testimony from both sides that Mobil’s standard license and lease rates were not artificially depressed for any reason, Evans Tr. 1204; Friedlander Tr. 2230, the Court finds that Mobil’s established rates were not artificially depressed to avoid challenges to the patents. c.Established Rates Were Not Artificially Depressed Because Mobil Set Them Mobil also argues that its standard rates do not constitute a reasonable royalty because they were arbitrarily set and were not the product of negotiations. In support of its argument Mobil cites the Trio Process and Rude v. Westcott decisions. Mobil’s argument is both legally and factually unsupported. Trio Process does not stand for the proposition that rates that are set by the patentee cannot be deemed “reasonable” established rates. Rather, the Third Circuit in Trio Process stated: [Tjhere is no reason to believe that the license rate negotiated by the parties was anything other than a balanced consideration by both Goldstein and Trio of those competing concerns that normally enter into the determination of price in an open marketplace economy. Trio consistently offered licenses at the rate of $2,600 per furnace year. Thus, the possibility that Trio, had it chosen to do so, might have obtained a higher license rate than that actually charged is irrelevant. Trio Process, 612 F.2d at 1361. The Court reads Trio Process as precluding Mobil’s challenge to its standard rates solely on the ground that it might have obtained a higher rate. As interpreted by the Court, Trio Process stands for the broader proposition discussed above that a patentee should not be stuck with a rate that it set under conditions of widespread infringement or threat of litigation. As stated above and explained below, Mobil was not in such a circumstance with respect to its MVPI technology. Mobil’s argument that its standard rates cannot constitute a reasonable royalty because they were set arbitrarily and without negotiations is also without factual support. Mobil knew from the beginning that its MVPI technology was likely to be highly successful. DX 1347.1 (“MVPI represents a very attractive licensing prospect for Mobil.”). While Mobil did have to set its rates somewhat arbitrarily because its potential licensees were not going to disclose their economic data, DX 1347.1 at 4, it did, however, “negotiate hard” with its potential licensees. DX 1357. Moreover, the success of Mobil’s negotiations is readily apparent. Mobil had approved a royalty of 25% of the low end of the estimated benefits or 0.15 cents per pound. DX 1288. As already explained, Mobil’s standard rates start at 0.25 cents per pound for the first 200 million pounds of PX produced, drop to a rate of 0.20 cents per pound for the next 300 million pounds of PX and only reach the 0.15 cent per pound rate after the licensee produces more than 500 million pounds of PX. See, e.g., DX 1357. Thus, Mobil was successful in its negotiations. In addition, Mobil had the advantage of trying out its VPI technology at its Naples, Italy operation. In fact, Mr. Schwartz testified that from the Naples operation Mobil was aware of all of the technical benefits of its VPI technology in 1973. Schwartz Tr. 630-33. The Naples operation also permitted Mobil to quantify the economic advantages of its VPI technology over the prior technology before setting its standard rates. In February of 1974, Mobil conducted an initial comparison of MVPI versus Octafin-ing, the most popular competitive process at its PX unit in Naples. DX 1347.1. This study showed the benefits of MVPI over Octafining at approximately 0.27 cents per pound of PX produced. Id. Mobil continued to study the advantages of the MVPI process at its Naples facility. Penick Tr. 806. In November of 1974, Mobil found that the economic advantages of the use of the MVPI process over Octafining at Naples were between 0.66 and 0.88 cents per pound of PX, more than double Mobil’s initial estimate of 0.27 cents per pound only nine months earlier. DX 1348. The economic advantages of MVPI over Octafining increased yet again to as much as 1.0 cents per pound in February of 1975. DX 1288; DX 1289 (when put in new plants advantages of VPI technology rose to 1.4 cents per pound). Thus, it is clear that Mobil’s standard rates were not arbitrarily set but rather were based upon Mobil’s evaluation of the increasing economic benefits obtained at the Naples plant. In light of the evidence of Mobil’s successful negotiations and its study and knowledge of the benefits of its MVPI technology before it began its licensing program, the Court finds Mobil’s arguments to be without merit. d. Established Rates Were Not Artificially Depressed Because They Were Set When Mobil’s Technology Was New Mobil next argues that its standard rates were not a reasonable royalty in 1980 because they were set in 1975 when the MVPI technology was unproven and its marketability was uncertain. The record in this case does not support Mobil’s argument. As previously found, Mobil continued to offer its MVPI technology at its standard rates to potential licensees until 1988, eight years after Amoco’s infringement began. In addition, Mobil signed one of its licensees, Idemitsu, in April of 1980 at the very same rates it had established in 1975. If Mobil’s standard rates really had become unreasonable to Mobil, it would not have continued to offer its technology at those same rates continuously up to 1988. Mobil also forgets that it had the opportunity to increase its standard rates when it saw a “sudden change” in the acceptance of its VPI licensing terms in May of 1976. DX 1357. The change was so great that Mr. Huggett increased his projection of Mobil’s licensing income five years out from $500,000 to $22,000,000. Id. Notwithstanding the “sudden change” and the fact that Mobil had signed up only one MVPI licensee at the time, Mobil maintained its standard rates and thereafter signed up ten more licensee/lessees at those rates. Six months later, in November of 1976, Mr. Huggett maintained that the licensing terms were “reasonable and fair” and even noted that Mobil must be prepared to meet competition by “perhaps lowering our fees” because the “heavy payments” provide sufficient incentive for the licensees to find alternative technology. DX 1300-R. Moreover, Mobil continued studying the benefits of MVPI after it began licensing the technology in 1975. In 1976, Mobil estimated that the advantage of MVPI over Octafining was now up to a range from 2 to 4 cents per pound of PX produced. DX 1362; DX 1692. Although Mr. Penick testified that he was unaware of such an increase in benefits, a May 5, 1977 memorandum reporting on a meeting attended by Mr. Penick indicated that “MVPI had an incremental value of 3.6 cents per pound of PX over Oetafining and in the second cycle it had 3.3 cents per pound” benefit over Octafining. DX 1516; Penick Tr. 844-49. Additionally, Mr. Fagan, who was “closer to the day-to-day aspects of licensing” Mobil’s technology than Mr. Penick, Penick Tr. 790, testified that he “did not wish to” raise the MVPI rates even though he: (1) was aware that he was the person in a position to change the MVPI rates if there was any reason to do so, Fagan Tr. 2456; (2) had seen the documents indicating that MVPI had a 2-4 cents per pound advantage over Oetafining, DX 1362; Penick Tr. 874; and (3) had admitted that he discovered there were additional benefits to the licensees, Fagan Tr. 2458. Despite this evidence of increased benefits and Mobil’s claims that it would have raised its MVPI rates if it had known that the benefits of using MVPI were higher, Penick Tr. 799, Mobil made no move to increase its standard rates. Thus, when considered in light of the numerous rejections from prospective licensees and the significant accommodations given to several of Mobil’s existing licensees, Mobil’s established rates seemed to be too high rather than too low. In addition, Professor Myers’ testimony supports the finding that Mobil’s established rates for the VPI process were a reasonable royalty. Professor Myers testified that “one of the most important lessons of economics ... is that the established market prices are the best measures of value” because they distill “all of the quantitative and qualitative factors that affect actual buyers and sellers, and influence what they pay.” Market prices “are a kind of summary measure that is objective and inclusive of all the things that impinge on businessmen, or investors, or on you and me when we make transactions.” Myers Tr. 1815. Thus, where the value of something has already been determined in market transactions, it is contrary to sound economics to “attempt a theoretical or conjectural calculation of what it ought to be worth.” Myers Tr. 1818. The market value of the process license in 1980 when Amoco began its infringement was the established royalty rate. This is the rate at which Mobil sold its technology to Idemit-su in April of 1980 and the rate that Mobil continued to offer to prospective licensees until at least 1988. Thus, in light of all of the evidence, the Court finds that Mobil’s established royalty rates are reasonable. 2. PANDUIT DOES NOT PRECLUDE AMOCO FROM A DAMAGES AWARD BASED UPON MOBIL’S ESTABLISHED RATES Mobil contends that Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152 (6th Cir.1978), precludes a damage award at Mobil’s established rates as a matter of law because that would place Amoco in a “heads I win, tails you lose” situation. Panduit does not support that argument. First, if Panduit were read as Mobil contends, a court could never find a patentee’s established rates to be the damages which an infringer should pay. Second, Amoco is not the type of infringer with which Panduit was concerned. The Sixth Circuit described that infringer as “a competitor which made no investment in research and development of the invention.” Amoco was not a competitor of Mobil in the PX business or in the licensing of processes or catalysts to produce PX. Green Tr. 2375; Smith Tr. 1280, 1391. Also, Amoco spent over 5 million dollars to develop AMSAC and patented its new catalyst. Friedlander Tr. 2286. In addition, the Court in Panduit described four different options such a competitor could take: (1) it can make and sell a non-infiinging substitute product, and refrain from making, using, or selling a product incorporating the patented invention; (2) it can make and sell the patented product, if the patent owner be willing, negotiating a license and paying a reasonable (negotiated) royalty; (3) it can simply take the invention, running the risk that litigation will ensue and that the patent will be found valid and infringed; or (4) it can take a license under option (2) and thereafter repudiate its contract, challenging the validity of the patent. Determination of a reasonable royalty, after election of option (S), cannot, without injustice, be treated as though the infringer had elected option (2) in the first place. 575 F.2d at 1158-59 (emphasis added, footnote omitted). The Panduit court’s concern over the “injustice” of the infringer paying only the established royalty was directed at option (3). Amoco followed option (4) by first taking a license and later challenging the validity of Mobil’s patents. In a footnote to option (4), the Sixth Circuit explained why former licensees should be treated differently. Citing to Lear, Inc. v. Adkins, 395 U.S. 653, 670, 89 S.Ct. 1902, 1911, 23 L.Ed.2d 610 (1969), it observed that good faith patent challenges — which licensees are uniquely suited to make — further “the important public interest in permitting full and free competition in the use of ideas.” Panduit, 575 F.2d at 1159 n. 7. This Court has already found that this policy applies here: “The litigation in this case and the defenses presented by Amoco, although ultimately unsuccessful, were justified. The issues presented were close and the litigation of close issues serves a valuable function in the patent system.” Mobil, 779 F.Supp. at 1501. Thus, Mobil cannot use Panduit as a basis for throwing out its established rates. Further, based on this Court’s findings in the liability trial that there was no willful infringement, 779 F.Supp. at 1487, and that the case was not exceptional, 779 F.Supp. at 1501, the Court has already found that Mobil is not entitled to attorney’s fees or increased damages. Mobil cannot be permitted to “back door” these findings. “[T]he proper method of recognizing that an infringer is not like a willing licensee is to consider increased damages under Section 284 for willfulness or for attorney’s fees under Section 285, rather than artificially inflating the royalty rate.” American Medical Systems, 794 F.Supp. at 1395 n. 15 (citing to Fromson, 853 F.2d at 1576 (Fed.Cir.1988) (emphasis added)). For all these reasons, the award for infringement of Mobil’s process patents shall be calculated by using Mobil’s established MVPI license rates. E. DAMAGES FOR AMOCO’S INFRINGEMENT OF THE COMPOSITION OF MATTER PATENT Next, the Court must determine the proper measure of damages for Amoco’s infringement of Mobil’s composition of matter patent. 1. MOBIL DID NOT HAVE AN ESTABLISHED ROYALTY FOR THE RIGHTS INFRINGED BY AMOCO UNDER THE COMPOSITION OF MATTER PATENT Mobil did not have an established royalty rate for Amoco’s infringing manufacture of catalyst under Mobil’s composition of matter patent. Although Mobil makes much of the fact that the VPI catalyst lease agreement is not a patent license, Evans Tr. 1019; Smith Tr. 1262, the Court feels that this distinction for damages purposes is a mere technicality. See Friedlander Tr. 2243; Myers Tr. 1837-39. For the same reasons set forth above with respect to the process patents, Amoco has established the first four elements required to prove an established royalty. Amoco cannot, however, meet the fifth element: that the established rates are for comparable rights or activity under the patent. Amoco admits that the right to make and use the infringing AMSAC catalyst under the composition of matter patent was not granted under the standard MVPI license agreement. D.I. 271 at 13. Amoco argues, however, that the value of that right was captured in Mobil’s established catalyst lease rates. Amoco’s arguments are summarized below: (1) The evidence showed that Mobil’s strategy was “to achieve as much revenue as Mobil thought it could from its licensing of its technology”, Penick Tr. 788, and that the catalyst leasing program was “a part of the program to maximize income to Mobil.” Penick Tr. 840. Mr. Penick charged his subordinates, including Mr. Fagan, with the mission of achieving the “maximum overall revenue that the market would bear.” Pen-ick Tr. 788-89, see also Huggett Tr. 1734-35. Given this strategy, and Mobil’s loosening of its ZSM-5 sampling and manufacturing policies discussed infra, Section F, discussion of Georgia-Pacific Factor 4, it is not credible to believe that a sophisticated company like Mobil would lease catalyst rather than license its manufacture if it thought the latter would be more profitable. Myers Tr. 1836. (2) Mobil’s standard lease itself indicates that the value of the manufacturing right is included in the established lease rates. Section 10.03 provides: In the event Mobil decides to discontinue the manufacture of VPI Catalyst, Mobil shall give Lessee notice of such discontinuance and shall make VPI Catalyst manufacturing technology and know how available to at least one (1) reputable catalyst manufacturer on terms satisfactory to Mobil so that VPI Catalyst would be commercially available. DX 1290 at § 10.03. (3) Mobil suffered no loss from Cyanam-id’s manufacture of catalyst for Amoco beyond not receiving its standard catalyst lease revenue from Amoco. Amoco never sold, leased or licensed catalyst in competition with Mobil. Friedlander Tr. 2233-34; Evans Tr. 1194. Mobil presented no evidence that any licensee or prospective licensee of Mobil did or did not do anything because Amoco’s catalyst was made by American Cyanamid and not Mobil. Smith Tr. 1390; Friedlander Tr. 2234. Mr. Green conceded that Mobil had no evidence of any damage it suffered as result of Amoco’s having its AM-SAC catalyst manufactured by another other than not receiving its standard license and lease revenue. Green Tr. 2380-82. Indeed, Mobil suffered no additional loss and will receive millions of dollars for the use of catalyst for which it had incurred no expense in producing. Myers Tr. 1835. (4) Amoco obtained no added value from having American Cyanamid manufacture catalyst for it beyond what all licensees obtained under the standard MVPI catalyst lease. Like the MVPI licensees, all Amoco needed was a supply of catalyst for its own PX production. Amoco was not in the catalyst manufacturing business and was indifferent to who manufactured the AMSAC catalyst for it. Fligg Tr. 1533; Myers Tr. 1834. Amoco did not use the manufacturing right to produce catalyst for sale or lease in competition with Mobil. Indeed, rather than obtaining any added value, Amoco will pay twice for catalyst — once to American Cyan-amid for the catalyst it did use and now to Mobil for the supply of catalyst it did not use. Friedlander Tr. 2233. (5)Mobil did not prove a value for the manufacturing right even though Mobil did license several companies to make ZSM-5 catalyst. DX 1970; see infra Section F discussion of Georgia-Pacific Factor 4. Thus, Amoco concludes that the requirement that the rights used by the infringer be “comparable” to those licensed at the established rate is satisfied here. The Court cannot agree. Even assuming that the value of the catalyst manufacturing right infringed by Amoco is subsumed in Mobil’s standard lease rates, the Court finds that the rights infringed by Amoco under the ‘886 patent, including the right to manufacture its own catalyst, are not “comparable” to the rights granted under Mobil’s standard MVPI lease agreements. This is because Mobil never granted any MVPI licensee/lessee the right to manufacture catalyst under the ’886 patent for use in xylene isomerization. Penick Tr. 741-42. Thus, the rights infringed by Amoco under the composition of matter patent are not comparable to the rights given to Mobil’s standard catalyst lessees. Accordingly, the Court must rely on another theory of damages to determine a proper award for Amoco’s infringement of Mobil’s composition of matter patent. 2. THE APPROPRIATE MEASURE OF DAMAGES FOR AMOCO’S INFRINGEMENT OF MOBIL’S COMPOSITION OF MATTER PATENT IS THE LOST PROFITS CAUSED BY THE INFRINGEMENT a. THE LAW: LOST PROFITS ANALYSIS “The general rule for determining the damages to a patentee that is itself producing the patented item is to determine the sales and profit lost to the patentee because of the infringement.” Del Mar Avionics, 836 F.2d at 1326; see also SmithKline Diagnostics, Inc. v. Helena Laboratories, Corp., 926 F.2d 1161, 1165 (Fed.Cir.1991); Bio-Rad Laboratories, Inc. v. Nicolet Instrument Corp., 739 F.2d 604, 616 (Fed.Cir.), cert. denied, 469 U.S. 1038, 105 S.Ct. 516, 83 L.Ed.2d 405 (1984). In order to obtain lost profits as a measure of damages, the paten-tee must prove: (1) causation, i.e., that “but for” the infringement there is a “reasonable probability” that the patentee would have made the infringer’s sales; and (2) a reasonable approximation of the patentee’s lost profits. See, e.g., BIC Leisure Products, 1 F.3d at 1218. A patentee can satisfy the causation requirement in at least one of two ways. The first way requires the patentee to show that it and the infringer were the only suppliers in a two-supplier market. See, e.g., Andrew Corp. v. Gabriel Electronics, Inc., 785 F.Supp. 1041, 1043 (D.Me.1992). The second way to satisfy the causation requirement is to meet the four elements of the Panduit test by showing: (1) a demand for the patented product; (2) the absence of acceptable non-infringing substitutes; (3) the manufacturing and marketing capability to exploit demand; and (4) the amount of profits the patentee would have made. Id. (citing Panduit, 575 F.2d at 1156). b. APPLICATION OF THE LAW TO THE FACTS OF THIS CASE Although this case is unique in that Amoco, the infringer, supports the application of a lost profits analysis while Mobil, the patentee, does not, the Court finds that an award of lost profits fully compensates Mobil for Amoco’s infringement of the composition of matter patent. As the patentee, Mobil was producing and leasing the patented item, ZSM-5 catalyst for use in xylene isomerization. As the infringer, Amoco was also producing the patented item. Amoco did not, however, sell or lease its catalyst to others but rather used all of the infringing catalyst that it produced in its own PX production. Nonetheless, it is clear that “but for” Amoco’s infringement a “reasonable probability” exists that Mobil would have made the infringer’s sales (albeit sales Amoco made to itself). Prior to Amoco’s infringement, Mobil was the only manufacturer of ZSM-5 catalyst for use in xylene isomerization and, as is clear from the record, Amoco leased its supply of such catalyst from Mobil. Amoco later infringed Mobil’s ’886 composition of matter patent by manufacturing and using its own ZSM-5 catalyst for xylene isomerization. After Amoeo’s infringement, Mobil and Amoco were the only suppliers in a two-supplier market. Accordingly, a reasonable probability exists that but for Amoco’s infringement, Mobil would have made all of Amoco’s sales of the infringing catalyst. The evidence in this case also shows within a reasonable probability that Mobil would have made Amoco’s infringing sales under the Panduit test. Mobil was in the business of manufacturing and leasing the MVPI catalyst covered by its composition patent. Smith Tr. 1320. Amoco was using MVPI catalyst leased from Mobil at its Decatur PX unit until infringement began through the installation of AMSAC in May, 1980. Amoco continued using MVPI catalyst leased from