Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION TABLE OF CONTENTS I. INTRODUCTION AND BACKGROUND.1278 A. Procedural Background.1278 B. Factual Background.1280 II. LEGAL ANALYSIS.1286 A. Standards For Preliminary Injunctions In Patent Cases.1287 1. Factors in the analysis.1287 2. Relationship of the factors.1288 3. Provisional determinations.1289 B. Individual Factoi's And Their Application.1289 1. Likelihood of success on the merits.1289 a. Validity.1289 i. The “on-sale” bar.1290 ii. “Obviousness.”.1294 iii. Inventorship .1294 iv. Inequitable conduct.1295 b. Infringement.1295 i. Literal infringement.1297 ii. “Doctrine of equivalents.”.1297 2. Irreparable harm.1300 a. Availability of a presumption.1300 b. When the presumption is not available.1301 3. Balance of harms. 1303 4. Public interest.1304 III. CONCLUSION.1304 BENNETT, District Judge. A motion for a preliminary injunction in a patent infringement case often involves the court in a precarious balance of presumptions, inferences, and equitable concerns based on only a thinly developed record and preliminary findings of fact and conclusions of law, all in the interest of forestalling irreparable harm and maintaining the status quo. Although the court’s preliminary determination is subject to ultimate revision following trial on the merits, if the question of whether or not to issue a preliminary injunction is wrongly decided at this nascent stage of the proceedings, the court’s preliminary determination may infliet as much irreparable harm as it forestalls. In this case, the court must consider how far presumptions will carry the plaintiff patentee in its demand for a preliminary injunction to enjoin production of allegedly infringing side-dump semi-trailers. Specifically, the plaintiff has invoked the presumptions of patent validity and of irreparable harm if a preliminary injunction is not issued to enjoin sales of the allegedly infringing side-dump trailers made by defendants. Defendants have countered these presumptions with evidence they contend shows neither presumption can properly stand, because the patent is neither valid nor infringed. The court here enters the ruling on plaintiff’s application for a preliminary injunction the court concludes will best serve to prevent irreparable harm and to maintain the status quo. J. INTRODUCTION AND BACKGROUND A. Procedural Background Plaintiff Circle R, Inc., filed this patent infringement action on January 5, 1996, against defendants “The Smith Co.” and “Gregg Smith,” asserting that defendants are infringing Circle R’s patent for a side-dump trailer. Defendants answered the complaint and asserted a counterclaim on January 29, 1996. In their answer, defendants asserted, inter alia, that the corporate defendant had been incorrectly titled by Circle R, and that the company’s name is properly Smithco Mfg., Inc. Following a hearing on plaintiffs motion for a preliminary injunction, the court entered an order granting the parties’ oral request to amend the caption in the case to identify the defendants properly as “Smithco Mfg., Inc.,” and “Greg Smith.” The defendants will therefore be referred to herein collectively as “Smithco,” except when individual acts or statements of Mr. Smith are under discussion. Leaving nomenclature aside, and returning to more significant matters, Circle R’s complaint alleges that Circle R is the owner of United States Patent No. 5,480,214 (hereinafter, “the ’214 patent”), entitled “SIDE DUMP TRAILER,” and that Smithco is infringing one or more claims of that patent by manufacturing, marketing, and selling truck and/or trailer bodies covered by the ’214 patent. Jurisdiction over the complaint is asserted under 28 U.S.C. § 1338 (patent jurisdiction). The complaint asserts that the ’214 patent is valid and enforceable, that Smithco is literally infringing the patent-in-suit, that infringement by Smithco is “willful,” and'that Circle R is entitled to a permanent injunction against such infringement, whether direct, contributory, or by inducement. The complaint seeks damages adequate to compensate Circle R for infringement of its patent that are in no event less than a reasonable royalty, plus interest and costs, enhancement of damages up to three times the amount assessed as the result of the asserted “willfulness” of the infringement, payment of costs and attorneys fees, and such other relief as the court deems just and equitable. On January 18, 1996, Circle R also moved for a preliminary injunction “enjoining Defendants and their servants and agents from manufacturing, using or selling side dump trailer bodies which infringe one or more claims of U.S. Patent No. 5,480,214.” Circle R attached to its application for a preliminary injunction various “evidentiary materials,” including photographs of an allegedly infringing trailer made by Smithco and a copy of the ’214 patent. Circle R also attached an affidavit of its patent expert, registered patent attorney John A. Beehner, stating his opinion that the Smithco side-dump trailer infringes each limitation of claims one and two of the ’214 patent, and an affidavit of Ralph Rogers, the President of Circle R and the named inventor of the ’214 patent, in which Mr. Rogers describes a purported business partnership with Greg Smith of Smithco, breach of that partnership arrangement, and subsequent infringement of Circle R’s patent by Smithco. In the brief in support of its motion for a preliminary injunction, Circle R argues that Smithco’s trailers literally infringe each and every limitation of at least claims 1 and 2 of the ’214 patent, and that Smithco has no right whatsoever to make, use, or sell such trailers. Circle R also argues that the hardship to it of not issuing a preliminary injunction is the impingement of its limited-in-time property right to exclusivity under the patent, while any hardship to Smithco of such an injunction, which is a result of Smithco’s election to build a business on an infringing product, should be disregarded. As to likelihood of success oh the merits, Circle R relies on both its expert’s opinion that Smithco is infringing the patent and the presumption of validity of United States patents. A further presumption figures in Circle R’s assertion of irreparable harm, in that it contends that “irreparable harm is presumed when a clear showing has been made of patent validity and infringement.” Plaintiffs Memorandum In Support Of Its Motion For A Preliminary Injunction, p. 9 (citing H.H. Robertson Co. v. United Steel Deck, Inc., 820 F.2d 384, 390 (Fed.Cir.1987), overruled on other grounds, Markman v. Westview Instruments, Inc., 52 F.3d 967, 977 (Fed.Cir.1995)). Circle R also contends that the public interest favors enforcement of patent rights, and therefore all pertinent considerations favor the grant of a preliminary injunction in this case. On January 29, 1996, Smithco answered Circle R’s complaint, asserting both affirmative defenses and a counterclaim to the effect that the ’214 patent is invalid and unenforceable. Specifically, in its affirmative defenses, Smithco contends that the ’214 patent has been “anticipated” under 35 U.S.C. § 102, that it is “obvious” under 35 U.S.C. § 103, and that the inventorship of the ’214 patent has been misrepresented to the Patent and Trademark Office (PTO) in violation of 35 U.S.C. § 116. Smithco contends that the co-inventor of the patent is Joe Garthright, an employee of Smithco, and that Smithco has an implied license to a shop right to make, use, or sell the alleged invention in the patent. In its counterclaim, Smithco reasserts the allegations in its affirmative defenses, arguing that the ’214 patent is invalid and unenforceable, and that Ralph Rogers is not the sole inventor of the patent, but that he was instead assisted in developing the alleged invention by Joe Garthright, who is therefore a co-inventor of the patent. As relief on its counterclaim, Smithco seeks a declaration that the ’214 patent is invalid and/or not infringed by Smithco, that the patent is unenforceable, and that Joe Garth-right is a co-inventor of the patent. Smithco further seeks award of its costs and attorneys fees, as well as such other relief as may appear equitable and just in the circumstances. Circle R replied to the counterclaim on February 2, 1996, denying all allegations upon which the counterclaim depends. Smithco did not immediately resist Circle R’s motion for preliminary injunction, but instead sought an extension of time to do so on February 2, 1996. That motion for an extension of time was granted on February 3, 1996, granting Smithco to and including March 4, 1996, within which to respond to the motion for preliminary injunction. Smitheo’s resistance to the motion for preliminary injunction was subsequently timely filed on March 4, 1996. With its resistance, Smithco filed photographs of three side-dump trailers purchased by Greg Smith’s trucking company, Smith Trucking Company, from Circle R in 1992 and 1993, purportedly indicating, among other things, the maximum degree of pivot each achieves when dumping, a purchase agreement for one of these trailers, dated October 18,1993, as well as photographs of two trailers recently produced by Smithco, again showing their degree of dumping pivot. Smithco also provided the affidavits of Greg Smith, Joe Garthright, who is the manager of Smith Trucking, and Smithco’s patent expert, registered patent attorney Kent A. Herink. In its resistance, Smithco argues that a preliminary injunction would not maintain the status quo in this case, but would instead completely disrupt Smithco’s business, which is solely the making and selling of side-dump trailers of its own design. Smithco also argues that there is no credible evidence of likelihood of success on the merits, because the ’214 patent has never been tested in litigation. Smithco contends that the ’214 patent is invalid under the “on-sale” bar found in 35 U.S.C. § 102(b), because the alleged invention of the patent was on sale in this country, indeed, was sold to Greg Smith’s trucking company, Smith Trucking, by Circle R, more than one year prior to the date of the application for the ’214 patent. Furthermore, Smithco contends, the ’214 patent is obvious under prior art disclosed in prior patents. Smithco contends that the patent is invalid, as well as unenforceable, for a third reason, which is that the patent application violated 35 U.S.C. § 116 by failing to disclose that Joe Garthright was a co-inventor of the alleged invention and failing to name Mr. Garthright as a co-inventor. Smithco also contends that the patent is unenforceable owing to inequitable conduct during the patent application and prosecution process, because Circle R and Rogers never advised the PTO of the sale of the three prior art trailers to Smithco. Smithco also attacks Circle R’s allegations of infringement as well as Circle R’s assertions of validity and enforceability. Smithco contends that its side-dump trailers do not literally infringe Circle R’s patent, if valid, because the Smithco trailers employ a pivot of more than ninety degrees from their non-dumping positions, while the patent specifically states that it employs a pivot of not more than ninety degrees. Smithco contends further that Circle R is estopped fi’om asserting infringement based on the “doctrine of equivalents,” because it distinguished prior art during the prosecution of the patent on the basis that the prior art employed a pivot in excess of ninety degrees. Thus, because there is no valid patent and no infringement if the patent is valid, Smithco contends there can be no adequate showing of likelihood of success on the merits and no presumption of irreparable harm. Furthermore, Smithco contends that the balance of harms favors its continued operation, and the public interest does not favor an injunction in circumstances involving no valid patent and no infringement. Circle R’s motion for preliminary injunction was heard on March 13, 1996. At the hearing, plaintiff Circle R was represented by counsel Dennis L. Thomte of Zarley, McKee, Thomte, Voorhees & Sease, in Omaha, Nebraska. Defendants Smithco and Greg Smith were represented by counsel G. Brian Pingel of Sherer, Templer, Pingel & Kaplan, P.C., in West Des Moines, Iowa, and Richard H. Moeller of Berenstein, Moore, Moser, Berenstein & Heffernan, in Sioux City, Iowa. Prior to the hearing, on March 12, 1996, Circle R mailed a motion to opposing counsel and the court, which was filed March 15, 1996, to strike evidentiary materials filed by defendants in support of them resistance to the motion for a preliminary injunction. In that motion, Circle R contends that there is no adequate foundation laid for introduction . of the photographs of the first three trailers sold by Circle R to Smith Trucking, because there is no affidavit from any person present during the photographing. Circle R contends that the photographs are also irrelevant, because they do not show that the trailers in question were positioned on level ground and do not show the degree of pivot of the trailers relative to the frame. Circle R also argues that the photographs are irrelevant, because they do not explain purportedly obvious modifications to the dumping configuration of the trailers as the result of repairs or replacements of parts, which, Circle R contends, would change the degree of dumping pivot of the trailers. Also prior to the hearing, on March 12, 1996, Circle R mailed a reply brief to opposing counsel and the court, which was filed March 15,1996. In that reply brief, Circle R argued, as it had for the first time during the hearing, that the sales of trailers by Circle R to Smith Trucking more than one year prior to the patent application were “experimental” sales, that neither trigger the “on-sale” bar of 35 U.S.C. § 102(b), nor any duty of disclosure to the PTO. At the hearing and by subsequent written order, the court granted Smithco’s oral request for leave to respond to the new “experimental sales” arguments. The court received a courtesy copy of Smith-co’s further response brief by facsimile on March 15, 1996, and a copy was subsequently filed with the clerk of court by mail on March 18,1996. The court now turns to the factual background provided by the parties’ written submissions and the evidence presented at the March 13,1996, hearing. B. Factual Background The parties tell quite different stories about the circumstances under which each company that is a party here began making side-dump trailers, the relationship among Circle R, Greg Smith, and Smithco, and the circumstances that led to the invention of the ’214 patent. Circle R is a Nebraska corporation with its principal place of business in South Sioux City, Nebraska. Its president is Ralph Rogers. In his declaration in support of the motion for preliminary injunction, Rogers stated that prior to March of 1994, Circle R designed, developed, and, on a limited basis, manufactured side-dump trailers, one or more of which were purchased by Greg Smith. Rogers stated that owing to Greg Smith’s interest in the side-dump trailers he had purchased from Circle R, Smith approached Rogers in March of 1994 about forming a partnership to make and sell trailers on Rogers’ new design. Rogers contended that he and Smith formed a partnership on March 26, 1994, to design, manufacture, and sell side-dump trailers, in which Rogers contributed his designs, and Smith provided capital. Rogers did not produce any partnership agreement as an exhibit in the litigation of this motion for preliminary injunction, either by attachment to Circle R’s complaint or the motion for a preliminary injunction, or as an exhibit at the hearing before this court. In his declaration, Rogers contended that Smith breached the partnership agreement, and instead has been producing trailers that infringe one of Rogers’ patents at Smith’s trailer manufacturing company in LeMars, Iowa. In his responsive declaration, Smith contended that no such partnership was ever formed and that the issue of whether any such partnership exists or ever existed has been foreclosed by judicial proceedings in Nebraska state court in Dakota County, Nebraska, in which judgment was entered in Smith’s favor. However, Smith has not identified the proceedings further nor produced a copy of the judgment from those proceedings. At the evidentiary hearing on the motion for preliminary injunction, Rogers did not reassert his argument that he and Smith had been partners in a business to manufacture side-dump trailers. Whether he had or not, the court need make no finding concerning this dispute, not even a preliminary one, because it is collateral to the question presently before the court, which is whether a preliminary injunction should issue to enjoin patent infringement. The court points out these different views concerning the relationship between Rogers and Smith as background to the question of who invented the device patented as the ’214 patent. Of more immediate pertinence is the content of the ’214 patent, itself. Rogers applied for a patent for a “SIDE DUMP TRAILER” on October 20, 1994. A patent was issued on January 2, 1996, as United States Patent No. 5,480,214. The invention identified in the patent consists of a trailer bed, or tub, that can dump to either side by means of hydraulic arms mounted on either end of a frame and connected to the ends of the tub, causing the tub to pivot one way or the other, depending on which pair of corner pivots has been released from its pivot points, and which pair remains locked in place, thus serving as pivots when the tub dumps to the side. Principally at issue in this litigation are claims 1 and 2 of the ’214 patent. Claim 1 of the patent describes the principal inventions of the patent. The final limitation of claim 1 is perhaps the most critical to the question of any infringement of the ’214 patent in this case. It provides as follows: the angular relationship of said side walls with respect to said bottom wall, together with the relationship of said pivot pins with respect to said side walls and said bottom wall, enabling the material in said body to be dumped therefrom, when positioned in its dumping positions, without the necessity of pivotally moving said body greater than 90° from its non-dumping position. U.S. Patent No. 5,480,214, claim 1, final paragraph (emphasis added). Claim 2 of the patent, which is derivative from claim 1, and therefore a “dependent” claim, pertains to the locking devices for each pivot point. Rogers was listed as the sole inventor on the patent application, and is listed as the sole inventor on the patent as issued. Rogers stated in his declaration that he assigned all rights in the ’214 patent to his company, Circle R. Circle R contends that • trailers now being made by Smithco literally infringe each and every limitation of at least claims 1 and 2 of the ’214 patent. Greg Smith has a different version of the circumstances under which the invention of the ’214 patent was conceived. Smith stated, in both his declaration and in testimony before the court, that during April or May of 1992, he became dissatisfied with side-dump trailers-then available from another supplier, Bailey Engineering and Manufacturing Company (BEMCO), used by his trucking company, Smith Trucking, in hauling and dumping rock, sand, gravel, dirt, and other materials. The manager of Smith Trucking, Joe Garth-right, became involved in trying to improve the design of such trailers. The problems Mr. Garthright identified with the BEMCO trailers, which BEMCO declined to address, included breaks in electrical and hydraulic lines, hydraulic cylinders which were sometimes opened up during the dumping process, cracking of support structure for hinges of the tub body, and difficulties with unhooking the trailers from the associated tractor. Garthright and Smith therefore approached Circle R to see if it would be interested in producing trailers that met their requirements. According to both Garthright and Smith, Garthright specifically explained to Rogers that the trailers should be built with a light, stiff frame that would provide room to anchor the hoses, the hydraulic cylinders for the tub body should be larger, and the trader should have a king pin with a fifth wheel on the tractor for hitching the tractor and trailer together. Rogers specifically contradicted this testimony in his own testimony at the preliminary injunction hearing. Rogers testified that Garthright brought him only “problems,” but suggested no “solutions.” Rogers testified that at some point Smith suggested they might be able to use an old trailer frame from an end-dump trailer for a new side-dump trailer, but that he could not recall whose idea it was to use a frame as part of the design. Testimony from witnesses for both sides, however, indicated that frames under side-dump trailers were not an entirely new innovation, as a side-dump trailer Garthright had seen in North Dakota in 1991 or 1992 employed such a frame. From un-contradieted testimony at the hearing, however, it was shown that the BEMCO side-dump trailer does not use such an underlying frame, but instead is based on log carriers that use no frame. Although he contradicted Garthright’s assertions of co-inventorship of the side-dump trailer patent at issue here, Rogers conceded at the hearing that he would not have started making side-dump trailers but for the suggestion that he build such trailers for Smith Trucking. However, at this stage of the proceedings, the court is unwilling to find that Garthright’s design suggestions, if made, were necessarily material to the patentable aspects of the invention embodied in the ’214 patent. The disputes about co-inventorship aside, for the moment,' it is undisputed that Circle R built a trailer for Smith Trucking during the summer of 1992, which was delivered in August of 1992, that incorporated various new features to address the problems Smith Trucking was having with its BEMCO trailers. Smith presented testimony and photographic evidence that the angle of pivot of this truck is eighty-nine or ninety degrees from its non-dumping position. Although counsel for Circle R may have succeeded in undermining the weight of the photographic evidence concerning this and the other two trucks Smith Tracking purchased from Circle R in 1992 and 1993, Smith’s testimony that an angle of pivot of not more than ninety degrees for this first truck, as purportedly shown in the challenged photographs, was “consistent with his experience” during the years in which Smith Trucking used the trailer is sufficient to raise a substantial question as to whether the trailer indeed pivoted not more than ninety degrees while in the fully dumped position. Mr. Smith’s testimony was based on his recollection that this particular trailer did not dump “cleanly” when soft, damp, or fine aggregates, such as dirt or sand, were dumped, and further measures, such as “bouncing” the tub, had to be taken to remove the last of the load in such cases. Smith Trucking bought two more trailers from Circle R during 1992 and 1993. The second trailer purchased by Smith Trucking was delivered on October 9, 1992, and the third, ordered on October 18,1993, was delivered on October 26, 1993. Smithco entered into evidence a Nebraska Vehicle Purchase Contract for this third trailer, dated October 18, 1993, showing a purchase by Smith Trucking from Circle R of this third side-dump trailer for $22,987.00, with a down payment of $5,000.00. Defendants’ Exhibit D. Smithco asserts that these three trailers purchased by Smith Trucking from Circle R in 1992 and 1993, and all ordered more than one year prior to the filing of the application for what became the ’214 patent, resemble the ’214 patented invention in almost all respects. Smitheo’s expert witness, Kent Herink, opined that every limitation of the first claim of the patent “reads on” the first two, but not the third, of these trailers purchased by Smith Trucking from Circle R in 1992 and 1993. Mr. Herink testified that the third trailer failed to meet the final limitation of claim 1, which is the limitation that the dumping pivot not exceed ninety degrees from the tub’s non-dumping position. The degree of dumping pivot of the second truck as shown from testimony and photographic evidence is eighty-five degrees from its non-dumping position. Again, Smith testified that this dumping angle was also consistent with his experience, because, while the first trailer appeared to be almost straight up and down when in the fully dumping position, the second trailer appeared to be slightly short of the vertical. Smith testified that the third trailer purchased from Circle R, however, visibly exceeded a ninety-degree pivot when fully dumping. No photographic evidence of the dumping angle of this third trailer was presented at the hearing. Although Smith testified that all three of these trailers purchased from Circle R during 1992 and 1993 had been subjected to various repairs, made either by Circle R or by Smith Trucking or a repair shop selected by Smith Trucking, Smith asserted that none of these repairs would have changed the dumping pivot of the trailers. Specifically, Smith' testified that there had been no changes to. the components constituting the dumping configuration of the second trailer, and any changes to the hydraulic cylinders that actually dump the trailer tub on the first trailer had been made to replace exactly the prior configuration. Therefore, on the first trailer, the “ram” of a replacement cylinder had to be cut-off, as Rogers had originally done, to shorten the “stroke” of the cylinder, and maintain the prior maximum dumping pivot. Smith also testified that no repairs to the third trailer had changed its dumping configuration and maximum dumping pivot. It is undisputed that Rogers’ application for what later became the ’214 patent did not include any disclosure of the sale of these three trailers to Smith Trucking made more than one year before the date of the patent application, that is, more than one year prior to October 20, 1994. For the first time at the hearing, Circle R suggested that the sale of these first three trailers had been “experimental.” Rogers testified that he did not know if these trailers would “work,” although he had a “good idea” that they would, and that he had no idea whether they reflected a “marketable” design or would stand up in service. Rogers conceded that there was no written or oral agreement that Smith Tracking would “test” the trailers and report back on their performance, and that there was no restriction on the resale of the trailers or any requirement that they be kept “secret” from the public. His assertion that the trailers were “experimental” was that he decided when he built them that if they worked, he would build and sell them. Rogers also asserted that the sale prices of the trailers, $19,000, $20,000, and $23,000, when the trailers now sell for $34,000, was a price break or monetary incentive to Smith Tracking to try the design for him, but he conceded that there is no sale document reflecting such a “price reduction” or such a reason for any price reduction. Against this assertion of “experimental” sales, Smith and Garthright testified that there were no restrictions on resale, no conditions of any kind on the sales, and no price reduction for trying an experimental design. They further testified that Rogers neither required nor requested that they provide him with any feedback on the performance of the trailers. Rather, they testified that they had great difficulty in interesting Rogers or any other Circle R representatives in problems they encountered from time to time with the trailers. Although Circle R made some of the repairs to the trailers from time to time, Smithco and other repair shops also made repairs, often, Smith testified, because Circle R was not interested in firing problems with the trailers. Smith testified that Smith Trucking insisted that the third trailer purchased from Circle R use stock parts for the cylinders, rather than the cut-off rams used by Circle R on the cylinders for the first two trailers, so that repair and replacement could be done more cheaply and easily. With the testimony of Joe Garthright, the former manager of Smith Trucking, the court must return to the question of the “co-inven-torship” of the ’214 patent. Garthright testified that Rogers’ son, Kevin, suggested that Circle R should pay Garthright $500.00 for every side-dump trailer Circle R sold for bringing Circle R his ideas for the side-dump trailer. Garthright testified that on one occasion, Kevin repeated this suggestion in front of Rogers, who agreed. Garthright testified that he has received two such $500.00 payments from Circle R as the result of sales of Circle R side-dump trailers to customers other than Smith Trucking. Thus, Smithco contends, Garthright is a co-inventor of the ’214 patent, and that Rogers has acknowledged as much. Rogers testified that the $500.00 payments were “finders fees” for bringing customers for side-dump trailers to Circle R. However, Garthright testified that he had never had any direct contact with the customers of the trailers whose purchases caused Rogers to pay him the $500.00 payments. Garthright testified that if he had any “indirect” contact with these customers, it could only have been that they had seen Smith Trucking trailers made by Circle R, and had asked the drivers where they got them. The court finds the evidence thus far presented concerning the $500.00 payments as demonstrating Garthright’s co-inventor-ship, as well as the evidence thus far presented concerning Garthright’s contribution to the invention of the side-dump trailers, is at best equivocal, and at worst insubstantial. The court therefore turns to factual matters concerning Smithco’s formation and its manufacture of side-dump trailers. Smith formed Smithco as an Iowa corporation in 1994, with its principal place of business in LeMai's, Iowa. Smithco began doing business on May 18, 1994. Its business was to manufacture Smithco’s own line of side-dump trailers, based on Garthright’s modifications and other prior art. Smithco now employs twenty employees, almost all of whom are full-time, with a total weekly payroll for non-officer employees of almost $5,000, excluding taxes. Smithco currently produces approximately one side-dump trailer per week, with a sale price of approximately $29,000, and Smith testified that Smithco has more orders than it can currently fill at its present manufacturing capacity. Smithco makes no other product. Smith testified that he did not know if it would be possible for Smithco to retool to make some other kind of side-dump trailer, and stood on his assertion that Smithco is not currently making an infringing trailer. Two examples of Smithco trailers, according to testimony and photographic evidence, have a left side dumping pivot of ninety-four degrees, and a right side dumping pivot of ninety-five degrees, for one, and a left side dumping pivot of ninety-two degrees, and a right side dumping pivot of ninety-four degrees, for the other. Smith testified that these dumping angles are consistent with his recollection of the dumping angles as measured during the tests shown in the photographs. Smithco also entered into evidence, in the form of photographs and testimony, evidence concerning a third Smithco trailer, now owned by Joe Garthright’s trucking company, Triple D. This third Smithco trailer has a left full dumping pivot of ninety-seven to ninety-eight degrees, and a right full dumping pivot of ninety-six to ninety-seven degrees. This was the same trailer shown in Circle R’s photographic exhibits, which photographs formed part of the basis for Circle R’s expert’s opinion concerning infringement. In his declaration, Smith asserted that the manufacturing procedures for Smithco are sufficiently consistent that none of them trailers would have a dumping pivot to either side of less than ninety-two degrees. At the hearing, Smith testified that the “jigs” on which the trailers are built are set for a dumping angle, exclusive of any twist or leaning of the frame during dumping, of ninety-four degrees. Smithco contends that these trailers cannot literally infringe a patent claim stating that it provides for a dumping pivot not greater than ninety degrees from its non-dumping position, and its expert witness, Mr. Herink, concurs. Circle R’s expert, registered patent attorney John A. Beehner, however, opined to the contrary. He testified that his opinion was that the Smithco trailers, which he had considered via photographic evidence and representations of plaintiffs counsel, and “rigidly” compared to the ’214 patent, infringed each and every limitation of claims 1 and 2 of the patent. He stated that he recognized that claim 2 was dependent on claim 1, and therefore could not be infringed if claim 1 was not infringed.. He also conceded that none of the photographs he had examined prior to the hearing showed the Smithco trailers in dumping position. Mr. Beehner testified that his opinion as to infringement of the last limitation of claim 1 was based on the representation of Circle R’s counsel that the Smithco trailers pivoted not more than ninety degrees when fully dumping, and that he had no firsthand knowledge of the dump angle of any of the Smithco trailers. All of the dumping pivots described above were measured while the trailers were standing on ground apparently level to the naked eye, according to witnesses present, and the tub of each truck, in the non-dumping position, appeared to be level. Indeed, the photographic evidence of the Smithco trailers provided by Smithco all included angle-finder readings in the non-dumping position indicating that the trucks were standing level. The measurements of pivot were relative to this non-dumping position, and therefore relative to level ground. The parties and witnesses all conceded that in the course of side dumping, the frame of the trailer either leans or twists in the direction of the dump approximately four or five degrees. Thus, some portion of the full-dumping pivot is the result of this twist or leaning of the frame in addition to pivot of the tub relative to the frame. With this factual and procedural background in mind, the court now turns to the legal standards applicable to Circle R’s motion for a preliminary injunction in a patent case. II. LEGAL ANALYSIS (Including some further preliminary findings of fact) The United States Constitution vests Congress with the power to “promote the Progress of Science and the 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, cl. 8. To that end, Congress passed the patent laws of the United States found in Title 35 of the United States Code. Among the provisions of U.S. patent laws is 35 U.S.C. § 283, which provides for injunctions in patent cases as follows: 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. 35 U.S.C. § 283; see also High Tech Med. Instrumentation, Inc. v. New Image Indus., Inc., 49 F.3d 1551, 1554 (Fed.Cir.1995) (finding that “Congress has authorized district courts in patent eases to grant injunctions” in accordance with the terms of 35 U.S.C. § 283); Reebok Int'l, Ltd. v. J. Baker, Inc., 32 F.3d 1552, 1555 (Fed.Cir.1994) (“Injunc-tive relief in patent cases is authorized by 35 U.S.C. § 283 (1988).”). This provision authorizes the district courts to grant both preliminary injunctions, after preliminary proceedings, and permanent injunctions, after a full determination on the merits. High Tech Med., 49 F.3d at 1554. However, the Federal Circuit Court of Appeals has cautioned that “a preliminary injunction is ‘not to be routinely granted.’” High Tech Med., 49 F.3d at 1554 (quoting Intel Corp. v. ULSI Sys. Technology, Inc., 995 F.2d 1566, 1568 (Fed.Cfr.1993), cert. denied, — U.S. -, 114 S.Ct. 923, 127 L.Ed.2d 216 (1994)); Intel Corp., 995 F.2d at 1568 (“[A] preliminary injunction is a drastic and extraordinary remedy that is not to be routinely granted.”); New England Braiding Co. v. A.W. Chesterton Co., 970 F.2d 878, 882 (Fed.Cfr.1992) (describing issuance of a preliminary injunction as “extraordinary relief’); Nutrition 21 v. United States, 930 F.2d 867, 869 (Fed.Cir. 1991) (same); Illinois Tool Works, Inc. v. Chip-Pak, Inc., 906 F.2d 679, 683 (Fed.Cir. 1990) (same). A preliminary injunction based on patent infringement “involves substantive issues unique to patent law and, therefore, is governed by the law of [the Federal Circuit Court of Appeals].’’ Reebok, 32 F.3d at 1555. A. Standards For Preliminary Injunctions In Patent Cases 1. Factors in the analysis The Federal Circuit Court of Appeals has established a number of equitable inquiries to determine when issuance of a preliminary injunction pursuant to 35 U.S.C. § 283 is “reasonable.” These include (1) likelihood of success on the merits; (2) irreparable harm to the patentee if a preliminary injunction is denied; (3) a balance of the hardships to the parties as the result of granting or denying an injunction; and (4) the public interest weighing for or against issuance of a preliminary injunction in a particular case. See, e.g., PPG Indus., Inc. v. Guardian Indus. Corp., 75 F.3d 1558, 1558 (Fed.Cir.1996); Sofamor Danek Group, Inc. v. DePuy-Motech, Inc., 74 F.3d 1216, 1219 (Fed.Cir.1996) (formulating the four inquiries as whether the movant can show: “(1) a reasonable likelihood of success on the merits, (2) an irreparable harm, (3) the balance of hardships tipping in its favor; and (4) a tolerable effect on the public interest,” citing Hybritech, Inc. v. Abbott Labs., 849 F.2d 1446, 1451 (Fed.Cir.1988)); Reebok, 32 F.3d at 1555 (also citing Hybritech); Intel Corp., 995 F.2d at 1568 (also citing Hybritech); New England Braiding Co., 970 F.2d at 882; Filmtec Corp. v. Allied-Signal, Inc., 939 F.2d 1568, 1571 (Fed.Cir.1991); Chrysler Motors Corp. v. Auto Body Panels of Ohio, Inc., 908 F.2d 951, 952 (Fed.Cir.1990). These factors must be balanced against each other and against the extent of the relief sought in the patentee’s motion for preliminary injunction. Sofamor, 74 F.3d at 1219; Intel Corp., 995 F.2d at 1568 (“Each factor must be weighed and assessed against the others and against the form and magnitude of the relief requested,” citing Hybritech); Filmtec Corp., 939 F.2d at 1571; Chrysler Motors Corp., 908 F.2d at 953; Hybritech, 849 F.2d at 1451. The movant bears the burden of proving that it is entitled to preliminary injunctive relief. Sofamor, 74 F.3d at 1219; Reebok, 32 F.3d at 1555. The decision to grant or deny a preliminary injunction in a patent case is a matter in the trial court’s discretion, and review is for abuse of that discretion. PPG Indus., 75 F.3d at 1558; Sofamor, 74 F.3d at 1219; High Tech Med., 49 F.3d at 1551 (observing, “After a district court has granted a preliminary injunction, however, this court will reverse only if the district court ‘has abused its discretion, committed an error of law, or seriously misjudged the evidence,’” quoting Hybritech, 849 F.2d at 1449); Reebok, 32 F.3d at 1555; Filmtec Corp., 939 F.2d at 1571 (also reviewing for “abuse of discretion, an error of law, or a serious misjudgment of the evidence,” citing Chrysler Motors Corp., 908 F.2d at 953). However, to overturn the denial of a preliminary injunction, an appellant must show both that the trial court relied on clearly erroneous factors and that it abused its discretion in otherwise denying the preliminary injunction. Sofamor, 74 F.3d at 1219; Reebok, 32 F.3d at 1555 (“When a preliminary injunction is denied, to obtain reversal the movant must show not only that one or more of the findings relied on by the district court was clearly erroneous, but also that denial of the injunction amounts to an abuse of the court’s discretion upon reversal of erroneous findings.”); New England Braiding Co., Inc., 970 F.2d at 882 (to obtain reversal of the grant of a preliminary injunction, the alleged infringer must convince the appellate court “that one of the factual premises is clearly erroneous,” but to obtain reversal of the denial of a preliminary injunction, the paten-tee “carries a heavier burden” to “show not only that one or more of the factors relied on by the district court was clearly erroneous, but also that a denial of the preliminary relief sought would amount to an abuse of the court’s discretion upon reversal of an erroneous finding.”). 2. Relationship of the factors A preliminary injunction may be denied in the absence of an adequate showing with regard to any one of the four factors, depending on the weight given each factor in the court’s discretionary examination as justifying denial. Reebok, 32 F.3d at 1556; Intel Corp., 995 F.2d at 1570 (“Although none of the factors alone is dispositive, the absence of a sufficient showing with regard to any one factor may, in light of the weight assigned to the other factors, preclude preliminary injunctive relief.”); Chrysler Motors Corp., 908 F.2d at 953. Although the Federal Circuit Court of Appeals generally looks at all four factors in its preliminary injunction inquiry, “[cjentral to the movant’s burden are the likelihood of success and irreparable harm factors.” Sofamor, 74 F.3d at 1219; Reebok, 32 F.3d at 1555-56 (“[I]t is always preferable that a district court make findings regarding each of the four factors which weigh in the balance concerning whether to deny a preliminary injunction,” but “[b]e-cause, irrespective of relative or public harms, a movant must establish both a likelihood of success on the merits and irreparable harm ..., the district court may deny a preliminary injunction based on the movant’s failure to establish either of these two crucial factors without making additional findings respecting the other factors.”); Nutrition 21, 930 F.2d at 869 (“Sufficient factual findings on the material issues are necessary to allow this court to have a basis for meaningful review.”). Indeed, where the plaintiff paten-tee showed neither a likelihood of success on the merits nor irreparable harm, the Federal Circuit Court of Appeals held that the distinct court properly denied a motion for preliminary injunction, and itself looked no further than these two factors in its review of the denial of a preliminary injunction. Sofamor, 74 F.3d at 1223; High Tech Med., 49 F.3d at 1554-55 (finding that the preliminary injunction granted by the district court could not be sustained on the grounds of likelihood of success on the merits or irreparable harm, the appellate court concluded that “it is unnecessary to address the arguments directed to the other factors bearing on the issuance of preliminary injunctive relief.”); Reebok, 32 F.3d at 1556 (“[A] movant cannot be granted a preliminary injunction without findings by the district court that the movant carried its burden on both [likelihood of success and irreparable harm],” with emphasis in the original, and noting that “[ajrguably, our cases suggest that a district court must always consider all four factors,” but finding all factors must only be considered before granting a preliminary injunction, while denial of a motion for a preliminary injunction could be proper without consideration of the third and fourth factors); New England Braiding, 970 F.2d at 882 (affirming denial of a preliminary injunction even though the district court made no findings concerning irreparable harm, the balance of hardships, or public interest, because the district court committed no clear error in finding that the movant was not likely to succeed on the merits at trial). This court will examine each of the four factors in turn, beginning, however, with these two “central” factors of likelihood of success on the merits and irreparable harm. 3. Provisional determinations However, before considering any of these factors, and the necessary findings of fact each entails, it is well to remember that in the context of preliminary injunction applications, in patent infringement as well as other kinds of cases, the court typically operates under “severe time constraints” and must customarily decide the motion “ ‘on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.’ ” New England Braiding Co., 970 F.2d at 883 (quoting University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981)). As the Federal Circuit Court of Appeals observed, “such a record does not usually allow for a reliable resolution of the merits.” Id. Thus, the Supreme Court in Camenisch, the case cited by the Federal Circuit Court of Appeals in New England Braiding, stated the general rule that “the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.” University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981); accord Henderson v. Bodine Aluminum, Inc., 70 F.3d 958, 962 (8th Cir.1995) (non-patent case citing this statement from Camenisch as the “general rule” for findings of fact and conclusions of law in preliminary injunction rulings); United States v. Barnes, 912 F.Supp. 1187, 1190 (N.D.Iowa 1996) (applying the “general rule” of Camenisch to a preliminary injunction ruling on the government’s request for a preliminary injunction pursuant to 18 U.S.C. § 1345 to enjoin activities of defendants who were allegedly engaged in mail fraud in violation of 18 U.S.C. § 1341). Any findings of fact in this ruling, either made above or in the course of the legal analysis, as well as any conclusions of law forming part of the court’s determination of whether the issuance of a preliminary injunction is proper in this case, are intended to be subject to this “general rule” and are not to be considered “final.” B. Individual Factors And Their Application 1. Likelihood of success on the merits Likelihood of success on the merits depends upon sufficient showing of both validity of the patent-in-suit and its infringement by the defendant sought to be enjoined. Sofamor, 74 F.3d at 1219 (finding these dual requirements in 35 U.S.C. § 283 and citing Hybritech, 849 F.2d at 1451); Reebok, 32 F.3d at 1555 (also citing Hybritech). Therefore, this court will consider Circle R’s likelihood of success over Smithco’s assertions of invalidity of the- ’214 patent, as well as its likelihood of success on its claim of infringement of the patent. a. Validity The presumption of validity upon which Circle R specifically relies in this ease is found in 35 U.S.C. § 282. See New England Braiding Co., 970 F.2d at 882 (“Section 282, United States Code, Title. 35 (1988), provides that a patent shall be presumed valid.”) Section 282 provides, in pertinent part, as follows: A patent shall be presumed valid- The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting it. 35 U.S.C. § 282. However, this presumption of validity can be “weighed” in determining the likelihood of success on the merits in the context of a motion for a preliminary injunction. New England Braiding Co., 970 F.2d at 882. The presumption acts as a procedural device, “placing] the burden of going forward with evidence and the ultimate burden of persuasion of invalidity at trial on the alleged infringer.” Id. However, unless the alleged infringer challenges validity of the patent-in-suit, the patentee “need do nothing to establish its rights under the patent.” Id. In this case, however, Smithco has directly challenged the presumption of validity of the ’214 patent and asserts that it has presented sufficient evidence to overcome the presumption. As to the question of validity in the context of disposition of a motion for a preliminary injunction, the Federal Circuit Court of Appeals has stated, The ultimate question ... is whether the challenger’s evidence of invalidity is sufficiently persuasive that it is likely to overcome the presumption of patent validity. See New England Braiding Co. v. A.W. Chesterton Co., 970 F.2d 878, 883, 23 U.S.P.Q.2d 1622, 1625 (Fed.Cir.1992). PPG Indus., 75 F.3d at 1566. Thus, the alleged infringer must present sufficient evidence in support of its invalidity claim to raise a “substantial question” of invalidity, “although the defense may not be entirely fleshed out.” New England Braiding Co., 970 F.2d at 883. Where the defendant cannot make sufficient showing of invalidity, the presumption of validity is sufficient to satisfy the patentee’s burden of showing of likelihood of success on the merits as to validity. PPG Indus., 75 F.3d at 1566. However, although the patentee has no burden to prove validity of its patent, when validity has been challenged, “the patentee must show that the alleged infringer’s defense lacks substantial merit.” New England Braiding Co., 970 F.2d at 883. i. The “on-sale” bar. Smithco’s first challenge to the validity of the ’214 patent is that the alleged invention described in the patent was on sale more than one year before Rogers applied for the patent. Thus, Smitheo asserts that the patent is invalid pursuant to 35 U.S.C. § 102(b): An inventor loses the right to a patent if he placed the claimed invention “in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.” 35 U.S.C. § 102(b). Whether an invention is on sale is a question of law. In re Mahurkar Double Lumen Hemodialysis Catheter Patent Litigation, 71 F.3d 1573, 1576 (Fed.Cir.1995); Ferag AG v. Quipp, Inc., 45 F.3d 1562, 1566 (Fed.Cir.) (citing the statutory bar and stating that the ultimate determination that a product was placed on sale is a question of law based on underlying facts), cert. denied, — U.S. -, 116 S.Ct. 71, 133 L.Ed.2d 31 (1995); In re Epstein, 32 F.3d 1559, 1564 (Fed.Cir.1994) (citing statutory bar and also stating determination is one of law based on underlying facts). The alleged infringer bears the burden of demonstrating that “ ‘there was a definite sale or offer to sell more than one year before the application for the subject patent, and that the subject matter of the sale or offer to sale fully anticipated the claimed invention.’ ” Id. (quoting UMC Elecs. Co. v. United States, 816 F.2d 647, 656 (Fed.Cir.1987), cert. denied, 484 U.S. 1025, 108 S.Ct. 748, 98 L.Ed.2d 761 (1988)); Ferag AG, 45 F.3d at 1566. The test is an objective one, measuring whether the inventor placed the invention on sale, which is “objectively manifested by a sale or offer for sale of a product that embodies the invention claimed in the patent.” Ferag AG, 45 F.3d at 1568. Whether a device has been placed on sale is not subject to a “mechanical rule,” but instead depends on the totality of the circumstances, considered in view of the policies behind § 102(b). In re Mahurkar, 71 F.3d at 1577; Ferag AG, 45 F.3d at 1565 (determination of whether an invention was “on sale” depends on the totality of the circumstances; no single one controls); King Instrument Corp. v. Otari Corp., 767 F.2d 853, 860 (Fed. Cir.1985) (underlying policy drives the inquiry), cert. denied, 475 U.S. 1016, 106 S.Ct. 1197, 89 L.Ed.2d 312 (1986). The Federal Circuit Court of Appeals has identified those policy considerations as including the following: (1) discouraging removal of inventions from the public domain that the public reasonably has come to believe are freely available; (2) encouraging the prompt and widespread disclosure of inventions; (3) allowing an inventor a reasonable amount of time following sales activity to determine the potential economic value of a patent; and (4) prohibiting an inventor from commercially exploiting his invention beyond the statutorily prescribed time. In re Mahurkar, 71 F.3d at 1577; Ferag AG, 45 F.3d at 1566; Envirotech Corp. v. Westech Eng’g, Inc., 904 F.2d 1571, 1574 (Fed.Cir. 1990). The Federal Circuit Court of Appeals has therefore stressed that the central focus of the on-sale inquiry is whether there was a “commercialization” of the invention. In re Mahurkar, 71 F.3d at 1577; Ferag AG, 45 F.3d at 1566 (“[T]he inventor is strictly held to the requirement that he file his patent application within one year of any attempt to commercialize the invention.”). However, “a patentee may escape the section 102(b) bar on the ground the use or sale was experimental.” LaBounty Mfg., Inc. v. U.S. Int’l Trade Comm’n, 958 F.2d 1066, 1071 (Fed.Cir.1992); see also Ferag AG, 45 F.3d at 1568-69 (sale of device meeting buyer’s specifications meets “on-sale” test, while “experimental” sales do not); Atlantic Thermoplastics Co., Inc. v. Faytex Corp., 5 F.3d 1477, 1480 n. 3 (Fed.Cir.1993) (“If the invention was sold or offered for sale before the critical date, other than primarily for a bona fide experimental purpose to perfect the invention, 35 U.S.C. § 102(b) bars [the patentee] from obtaining a patent therefor.”); U.S. Environmental Prods., Inc. v. Westall, 911 F.2d 713, 716 (Fed.Cir.1990) (“A section- 102(b) bar is avoided if the primary purpose of the sale was experimental”). The Federal Circuit Court of Appeals has several times considered the difference between “experimental” sales to “perfect” an invention and truly commercial sales. Thus, in La-Bounty, the court reiterated, “[A] use or sale is experimental for purposes of section 102(b) if it represents a bona fide effort to perfect the invention or to ascertain whether it will answer its intended purpose.... If any commercial exploitation does occur, it must be merely incidental to the primary purpose of experimentation to perfect the invention.” Pennwalt Corp. v. Akzona, Inc., 740 F.2d 1573, 1580-81, 222 USPQ 833, 838 (Fed. Cir.1984) (citations omitted). LaBounty, 958 F.2d at 1071. To test whether there has been “commercialization” of the invention, as opposed to merely “experimental” sales, the court examines such matters as whether the invention was advertised or offered to anyone other than a party involved in the development of the invention, whether the sale is of “prototypes” that do not place the invention in the public domain or lead the public to believe that the device is freely available, and whether the sales allowed the patentee to test the potential market value of the patent. In re Mahurkar, 71 F.3d at 1577; Westall, 911 F.2d at 717 (one factor is “existence of promotional activities”). Furthermore, the Federal Circuit Court of Appeals has considered whether there is an agreement by the customer to use the device secretly and keep records of progress, and continued control by the inventor of the patented equipment while in the hands of the purchaser. LaBounty, 958 F.2d at 1071 (secrecy agreement and record-keeping, as well as continued control); Westall, 911 F.2d at 716 (factors include “lack of record-keeping,” “lack of control by the inventor,” “lack of secrecy obligations on the part of the user.”); Armco, Inc. v. Cyclops Corp., 791 F.2d 147, 149 (Fed.Cir.1986) (district court improperly granted summary judgment of an “on-sale” bar, because district court disregarded evidence that the inventor and the buyer had a confidentiality agreement concerning use of the invention and evidence of other documents exchanged between the parties referring to the experimental nature of the invention and describing the purpose of the shipments to the buyer as testing whether the alloy in question would work for its intended purpose). Looking more closely at the inventor’s continued control over the invention, the sale or offer of sale purportedly violating the on-sale bar must involve separate entities; thus, the question is, “whether the seller so controls the purchaser that the invention remains out of the public’s hands.” Ferag AG, 45 F.3d at 1567. When entities are “related,” it is “difficult to determine whether the inventor is attempting to commercialize his invention.” Id. Finally, because Rogers has asserted it was his intent that the sales to Smith Trucking were to be “experimental,” the court must consider what part the patentee’s intent plays in a determination of experimental use. In LaBounty, the Federal Circuit Court of Appeals discussed the impact of the inventor’s intent in light of contrary objective evidence: An inventor’s protestation of an intent to experiment, expressed for the first time during litigation, is of little evidentiary value, at best. In re Brigance, 792 F.2d 1103, 1108, 229 USPQ 988, 991 (Fed.Cir.1986); TP Labs. [v. Professional Positioners, Inc.], 724 F.2d [965,] 972, 220 USPQ [577,] 583 [ (Fed.Cir.), cert. denied, 469 U.S. 826, 105 S.Ct. 108, 83 L.Ed.2d 51 (1984) ]. Indeed, “an inventor’s subjective intent is immaterial when objective evidence points otherwise.” Harrington Mfg. Co. v. Powell Mfg. Co., 815 F.2d 1478, 1481 n. 3, 2 USPQ2d 1364, 1366 n. 3 (Fed.Cir.1986). When sales are made in an ordinary commercial environment and the goods are placed outside the inventor’s control, an inventor’s secretly held subjective intent to “experiment,” even if true, is unavailing without objective evidence to support the contention. Brigance, 792 F.2d at 1108, 229 USPQ at 991. Under such circumstances, the customer at a minimum must be made aware of the experimentation. As stated in In re Dybel, 524 F.2d 1393, 1401, 187 USPQ 593, 599 (CCPA 1975), “[Inventor’s] failure to communicate to any of the purchasers or prospective purchasers of his device that the sale or offering was for experimental use is fatal to his ease.” LaBounty, 958 F.2d at 1071-72; Westall, 911 F.2d at 717 (“The subjective belief of the inventors or customers [as to experimental use], however, must be weighed against objective evidence which indicates otherwise,” also citing Brigance, 792 F.2d at 1108 & n. 8). The court concludes that Smithco has established at least a “substantial question” as to the validity of the ’214 patent under the “on-sale” bar of § 102(b), although its assertion of sales prior to the critical date may need to be further “fleshed out” in order to prevail on a trial of the merits. New England Braiding Co., 970 F.2d at 883. Thus, the court finds Smithco’s evidence of sales of the invention more than one year prior to the patent application in this ease to be sufficiently persuasive to overcome the presumption of validity for preliminary injunction purposes. PPG Indus., 75 F.3d at 1566. Smithco has identified three sales, all occurring during 1992 and 1993, and all occurring more than a year before the critical date of October 20, 1994, when Rogers filed his patent application. To all appearances from the preliminary injunction record, the first two of thosé sales involved side-dump trailers employing or embodying every limitation of the subsequent patent, at least as to the two claims of the patent upon which the motion for preliminary injunction was founded. In re Mahurkar, 71 F.3d at 1576; Ferag AG, 45 F.3d at 1568. The trailers purchased by Smith Trucking in 1992 and 1993 employ the same side-dumping mechanism identified in the first claim of the patent, including the frame and hydraulic system, means for pivoting the trailers, and those first two trailers had a maximum degree of pivot while dumping that did not exceed ninety degrees, as required by the last limitation of claim 1 of the ’214 patent. Circle R argued that even if there is a “substantial question” that claim 1 is invalid owing