Full opinion text
MEMORANDUM AND ORDERS WOODLOCK, District Judge. I. These two eases present images from the kaleidoscopic reconfigurations of products, affiliations and litigation undertaken during the past decade by four competitors in the market for medical devices designed to treat clogged coronary arteries. The first case before me (Civil Action No. 94-10967-DPW) was initiated by Competitor A to establish that its products do not infringe the patent controlled by Competitor B or alternatively that the patent is invalid. Competitor B has counterclaimed alleging infringement. During the course of this litigation, Competitor A merged with Competitor C. Competitor C in earlier litigation had unsuccessfully challenged the validity of Competitor B’s patent. After the merger, Competitor A and Competitor C centralized the medical device business at issue here in Competitor C. The pleadings before me have been amended to permit Competitor B to allege infringement by Competitor C. The pleadings were also amended to permit Competitor A to allege inequitable conduct by Competitor B in the acquisition of the patent, an allegation which Competitor A’s new affiliate, Competitor C, had also unsuccessfully pressed in its earlier litigation with Competitor B. The second case before me (Civil Action No. 95-12715-DPW) was initiated by Competitors A and C to attack Competitor B’s patent by alleging an antitrust violation arising out of a cross licensing agreement between Competitor B and Competitor D. Competitor D is yet another active participant in this medical device market with whom Competitors A, B and C have variously been engaged in litigation over the past decade. The parties have filed six dispositive motions raising a classic question of patent infringement but also raising questions of first impression concerning the preclusive effect of prior litigation and the fundamental question of the proper interplay between patents, and antitrust law. II. The Pending Motions Competitor A, plaintiff Boston' Scientific Corporation (“BSC”) filed Civil Action No. 94-10967 (the “patent action”) on May 13, 1994, against Competitor B, Schneider (Europe) AG and Schneider (USA) Inc. (collectively “Schneider”) seeking a declaratory judgment of noninfringement and invalidity as to United States Patent No. 4,762,129 (the “'129 patent”). BSC now moves for summary judgment on the issue of non-infringement. In turn, Schneider moves 1) for partial summary judgment that BSC not be allowed to litigate the issue of validity; 2) for partial summary judgment that BSC not be allowed to litigate the issue of inequitable conduct; and 3)-for partial summary judgment dismissing the second affirmative defense of unenforceability, filed by Competitor C, BSC’s wholly owned subsidiary SciMed Life System, Inc. (“SciMed”). Schneider argues that these three partial summary judgment issues were conclusively determined before Judge Alsop in the United States District Court for the District of Minnesota in Schneider (Europe) AG v. SciMed Life Systems, Inc., 852 F.Supp. 813 (D.Minn.1994), aff'd, 60 F.3d 839 (Fed.Cir.), cert. denied, — U.S. —, 116 S.Ct. 520, 133 L.Ed.2d 427 (1995) (“the SciMed action”). In Civil Action No. 95-12715 (the “antitrust action”) BSC and SciMed together bring an antitrust action against Schneider and Competitor D, Advanced Cardiovascular Systems, Inc. (“ACS”). BSC and SciMed argue that Schneider and ACS have wrongfully obtained patents and have since used these patents to dominate the rapid exchange catheter market in the United States. Specifically, BSC and SciMed assert that Schneider and ACS — through alleged inequitable conduct before the patent office and in other litigation, and by using a cross-licensing settlement agreement between Schneider and ACS for Schneider’s Bonzel patent and ACS’s series of Yock patents — have a) monopolized trade, conspired to monopolize trade, and attempted to monopolize trade in violation of Section 2 of the Sherman Act and applicable state antitrust laws (Counts 1-3); b) conspired to restrain trade in violation of Section 1 of the Sherman Act and applicable state antitrust laws (Count 4); c) violated unfair competition laws under Mass. Gen. L. ch. 93A (Count 5); and d) violated state abuse of process laws (Count 6). Before me are motions to dismiss by Schneider and ACS pursuant to Fed.R.Civ.P. 12(b)(6). I note that in the antitrust action BSC and SciMed raise essentially the same issues (with the same supporting facts) as they have in the patent action with regard to the invalidity of the Bonzel patent due to Schneider’s alleged inequitable, conduct before the PTO and in the SciMed action. III. Background A. The Invention The '129 (or “Bonzel”) patent, entitled “Dilatation Catheter” (also known as a “balloon dilatation catheter” or, more commonly, a “rapid exchange catheter”) was issued on August 9, 1988 and names Tassilo Bonzel as the inventor. The patent was amended by U.S. Reexamination Certificate B1 4,762,129 issued on July 2,1991, pursuant to 35 U.S.C. § 304. Schneider (Europe) is the exclusive licensee, and Schneider (USA) is a sub-licensee. In general, the catheters at issue in this case are used to treat coronary arteries that are clogged with fatty deposits (“lesions”) in areas known as “stenoses.” Such deposits obstruct the coronary arteries and can cause angina or a heart attack if blood flow is blocked. A procedure known as angioplasty utilizes a balloon dilatation catheter to open clogged arteries and improve blood flow. A Percutaneous Transluminal Coronary Angioplasty (“PTCA”) is a special angioplasty procedure that is a less invasive alternative to coronary artery bypass surgery, and is performed by specialists known as “interventional cardiologists.” First, a wide diameter guiding catheter is inserted into the femoral artery in the patient’s groin area and threaded through the blood vessels to the “ostium,” or opening, of the coronary arteries. Next, a smaller diameter balloon dilatation catheter (a long, thin, plastic tube with an expandable balloon positioned on the tip) is inserted inside the larger catheter. This balloon catheter, complete with guide wire, which the doctor manipulates outside the patient’s body, is also threaded to the point of the ostium. The distal tip (i.e., the end that is farthest away from the physician) of the guide wire is pushed beyond the stenosis. The balloon catheter is pushed forward along the guide wire until the balloon is beside (or inside) the stenosis. The balloon is then inflated to crack the stenosis and widen the artery walls, thereby restoring blood flow. Balloon catheters for dilatation of human coronary arteries (and the PTCA procedure) were first introduced in 1977. However, since that time many different designs have been developed. The first design or “prior art,” known as the “over-the-wire” catheter, utilizes two tubes (or “lumens”) of the same length leading to the balloon — one covering the wire, and one for inflation. As of November 1984 the prevalent view among the majority of cardiologists was that it was necessary for an over-the-wire catheter to have a full-length guide wire lumen to assist, for example, in measuring blood pressure and withdrawing the balloon catheter. See SciMed, 852 F.Supp. at 826. However, a problem with this design emerged whenever a physician needed to remove a balloon catheter mid-way through the procedure and insert a new one (because, for example, the balloon was too small or too large). Obviously, it was not desirable to remove the entire contraption (catheter and guide wire) from a patient’s body, due to the risk and time involved in re-threading. It was preferable to leave the guide wire in place, remove the balloon catheter, and thread a new catheter over the existing guide wire. However, this procedure required the wire to be double the length of the catheter, so that as the physician slid the catheter back out over the wire, there would be enough wire outside the body to receive the catheter as it was withdrawn and still leave bare wire for a physician to hold. This complicated procedure usually required two physicians. The Bonzel invention resolves this problem by using a short guide wire tube instead of a full-length guide wire tube. Both tubes are still employed beginning at the balloon (the distal end), but the guide wire tube terminates shortly thereafter. As a result, the guide wire exits from this short shaft instead of exiting at the end of the full length of the catheter. This change allows one physician to slide the catheter off the wire and easily insert another while still gripping the wire— hence its designation as a “rapid exchange catheter.” Moreover, less wire is required because the length of wire outside the body only needs to accommodate the length of the shortened guide wire tube. See also SciMed, 852 F.Supp. at 827 (discussing other advantages). BSC’s SYNERGY family of catheters, to be discussed in more detail below, utilizes a full length guide wire tube, but also incorporates rapid exchange capabilities by creating an exit hole in the guide wire tube. They are sometimes referred to as “convertible” rapid exchange catheters. Rapid exchange catheters occupy a distinct market segment and are interchangeably known as “rapid exchange,” “monorail,” and “monorail-type.” It should be noted that “Monorail” is also the trade name of the original Schneider rapid exchange catheter. B. Relevant Relational History of the Parties An understanding of the relationships and litigation history among the parties in these two actions is necessary as a foundation for analyzing the preclusion arguments before me. 1. Schneider v. ACS, No. C-88-20742-WAI (N.D.Cal.) and ACS v. Schneider, No. C-91-20507-WAI (N.D.Cal.) In 1988, Schneider brought an action against ACS in the United States District of Northern California, accusing ACS of infringing Schneider’s Bonzel patent through sale of its RX line of angioplasty catheters. While this suit was pending, two patents issued to Paul G. Yock were assigned to ACS. The’ first, United States Patent No. 5,040,548, issued on August 20, 1991, was entitled “Angioplasty Method” (the ‘Yock 1 patent”). The second, United States Patent No. 5,061,273, issued on October 29, 1991, was entitled “Angioplasty Apparatus Facilitating Rapid Exchange” (the ‘Yock 2 patent”). In response, in August of 1991, ACS brought suit against Schneider in the Northern District of California, alleging that Schneider’s Monorail line of catheters infringed the Yock 1 and Yock 2 patents. The parties reached á settlement on December 17,1991, providing for a cross-license of the Bonzel and Yock patents, as well as for patents which might mature from patent applications emanating from the Bonzel and Yock patents. ACS agreed to pay $22 million to Schneider for" infringement of the Bonzel patent. (See Schneider Mem. Mot. Dismiss, Ex. A (Settlement Agreement).) More recently, United States Patent No. 5,350,395 was issued on September 27, 1994 (the ‘Yock 3 patent”), as was United States Patent No. 5,451,233 on September 19, 1995 (the ‘Yock 4 patent”). 2. ACS v. SciMed, No. C-91-20508-WAI (N.D.Cal.) and ACS v. SciMed, No. 3-91-20729-JW (N.D.Cal.) In August and October of 1991, ACS also filed two actions against SciMed, the first for infringement of the Yock 1 patent and the second for infringement of the Yock 2 patent. Both cases were settled on December 1, 1991. SciMed agreed to pay a lump sum to ACS, plus a 20% royalty on infringing rapid-exchange catheters during a limited phaseout period. 3. Schneider v. SciMed, No. 3-91-Civ-241, 852 F.Supp. 813 (D.Minn.1994), aff'd, 60 F.3d 839 (Fed.Cir.), cert. denied, [- U.S. -], 116 S.Ct. 520, [133 L.Ed.2d 427] (1995) (“the SciMed action”) On April 23, 1991, Schneider filed suit against SciMed in the District of Minnesota. Schneider accused SciMed of infringing the Bonzel patent by making, using, and selling its EXPRESS and RALLY dilatation catheters, and also sought a permanent injunction. (The RALLY catheter had replaced SciMed’s EXPRESS catheter.) In a March 4, 1994 decision, Judge Alsop entered a judgment that the Bonzel patent was valid and enforceable; that Schneider did not engage in inequitable conduct at any time during the prosecution of the reexamination certificate or during the prosecution of the original patent; that SciMed had infringed the Bonzel patent by its manufacture and sale of the EXPRESS and RALLY catheters (but that such infringement was not willful); and that SciMed was liable for approximately $45 million in damages as well as prejudgment interest. In addition, Judge Alsop entered a permanent injunction, and an amended permanent injunction (on April 25, 1994), the specifics of which are detailed at SciMed, 852 F.Supp. at 868-69. SciMed appealed the finding of validity, arguing that Judge Alsop had misconstrued caselaw and should have included engineers when evaluating whether the invention was obvious to “a person of ordinary skill in the relevant art.” The Federal Circuit affirmed Judge Alsop’s decision in Schneider (Europe) AG v. SciMed Life Systems, Inc., 60 F.3d 839 (Fed.Cir.), cert. denied, — U.S. -, 116 S.Ct. 520, 133 L.Ed.2d 427 (1995) stating that SciMed was “fundamentally wrong” in its arguments concerning conventional wisdom and obviousness. 4. ACS v. BSC, No. C-93-20330-RPA (N.D.Cal.) In May of 1993, ACS sued BSC in the Northern District of California for alleged infringement of the Yock 1 and Yock 2 patents. BSC and ACS settled the litigation pursuant to a November 2, 1994 consent judgment in which BSC conceded that the Yock 1 and 2 patents were “not invalid [and] are enforceable(Schneider Mem. Mot. Dismiss, Ex. B (Consent Agreement).) 5. BSC and SciMed Merger Following the SciMed action, BSC and SciMed signed a merger agreement on or around November 8,1994, and consummated the merger on or around February 24, 1995. (Schneider Undisputed Facts ¶ 1; BSC Opp. Partial Summ. J. (Validity) at 4). In June 1995, after receiving reassurance from Judge Alsop that the injunction against SciMed did not extend to SYNERGY catheters, SciMed began selling the catheters, which BSC continued to manufacture. (Schneider Undisputed Facts ¶ 6; BSC Opp. Partial Summ. J. (Validity) at 5.) 6. ACS v. SciMed, No. C-95-3580-DLJ (N.D.Cal.) and ACS v. SciMed, No. C-96-0950-DLJ (N.D.Cal.) On October 10, 1995, ACS filed an action against SciMed for infringement of all four Yock patents based on sales of EXPRESS PLUS and EXPRESS PLUS II catheters. On March 12,1996, ACS filed another action against SciMed for infringement of yet a fifth Yock patent (U.S. Patent No. 5,496,346, issued on March 5, 1996) based on sales of EXPRESS PLUS II and LEAP EXPRESS PLUS catheters. In its answer to the second action, SciMed asserted affirmative defenses of (1) invalidity, (2) unenforceability under the doctrine of patent misuse, and (3) noninfringement. In addition, SciMed filed a counterclaim which incorporated these defenses. On July 24, 1996, Judge Jensen (1) struck the invalidity defense but granted SciMed leave to amend, (2) struck the patent misuse defense with prejudice for failure to state a claim of patent misuse, estoppel, or laches, and (3) struck from the counterclaim all references to the affirmative defense of patent misuse. IV. Framework For Review of these Motions A. Summary Judgment Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In making this determination, I must view all facts in the light most favorable to the non-moving party. See Woods v. Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir.1994). However, the existence of an alleged factual dispute will not defeat a motion for summary judgment unless it is related to a genuine issue of material fact. See Thomas v. Digital Equip. Corp., 880 F.2d 1486, 1489 (1st Cir.1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). “A dispute is ‘genuine’ if ‘the evidence about the fact is such that a reasonable jury could resolve the dispute in favor of the non-moving party.’ ” Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.1996) (quoting Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 352 (1st Cir.1992)). “A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law.” Id. (quoting One Nat’l Bank v. Antonellis, 80 F.3d 606, 608 (1st Cir.1996)). Due to the overlapping nature of the pleadings, and the similarity to cross-motions for summary judgment, I must review the record in the light most favorable to the party opposing summary judgment and indulge all reasonable inferences in that party’s favor. See El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 492 (1st Cir.1992). As explained in El Dia, “[i]n such a situation, ‘the court must evaluate each motion separately, being careful to draw inferences against each movant in turn.’ ” Id. (citing Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990)). Finally, I am mindful that “summary judgment is as appropriate in a patent case as in any other. When no genuine issue of material fact remains and the movant is entitled to judgment as a matter of law, the court should utilize the salutary procedure of Fed. R.Civ.P. 56 to avoid unnecessary expense to the parties and wasteful utilization of the jury process and judicial resources.” Barmag Barmer Maschinenfabrik A.G. v. Murata Machinery, Ltd., 731 F.2d 831, 835 (Fed.Cir.1984); accord Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 795 (Fed.Cir.1990). B. Motions to Dismiss In reviewing the motions to dismiss in the antitrust action, I “aceept[ ] all well-pleaded facts as true and draw[ ] all reasonable inferences in favor of the party dismissed.” Carreiro v. Rhodes Gill & Co., 68 F.3d 1443, 1446 (1st Cir.1995) (citing Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d 962, 971 (1st Cir.1993)). However, a plaintiffs unsupported conclusions or interpretations of law will not be accepted. See id. I may grant dismissal “only if it appears beyond doubt that [the plaintiff] can prove no . set of facts which would entitle him to relief.” Tamburello v. Comm-Tract Corp., 67 F.3d 973, 975 (1st Cir.1995) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)), cert. denied, — U.S. -, 116 S.Ct. 1852, 134 L.Ed.2d 952 (1996). I note that while there' are no special pleading requirements for antitrust claims, see New York Airlines, Inc. v. Dukes County, 623 F.Supp. 1435, 1451 n. 14 (D.Mass.1985) (citing Corey v. Look, 641 F.2d 32, 38 (1st Cir.1981)), “invocation of antitrust terms of art does not confer immunity from a motion to dismiss,” Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1110 (7th Cir.1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985); see The Estate Constr. Co. v. Miller & Smith Holding Co., 14 F.3d 213, 220-21 (4th Cir.1994) (“[I]t is not enough merely to state that a conspiracy has taken place.”); see also Boston & Maine Corp. v. Town of Hampton, 987 F.2d 855, 863 (1st Cir.1993); New York Airlines, 623 F.Supp. at 1451 n. 14. Therefore, “when the requisite elements are lacking, the costs of modern federal antitrust litigation and the increasing caseload of the federal courts counsel against sending the parties into discovery when there is no reasonable likelihood that the plaintiffs can construct a claim from the events related in the complaint.” Car Carriers, Inc., 745 F.2d at 1106. C. Choice-of-Law The applicable law for patent-related issues is to be determined under the law as developed by the Federal Circuit. The applicable law for non-patent, issues is the law of the regional circuit — in this case the First Circuit. Thus, general principles of res judicata and antitrust law are to be decided under the law of the First Circuit. See Mars Inc. v. Nippon Conlux Kabushiki-Kaisha, 58 F.3d 616, 618 (Fed.Cir.1995); Epic Metals Corp. v. H.H. Robertson Co., 870 F.2d 1574, 1576 (Fed.Cir.), cert. denied, 493 U.S. 855, 110 S.Ct. 160, 107 L.Ed.2d 117 (1989); Argus Chemical Corp. v. Fibre Glass-Evercoat Co., 812 F.2d 1381, 1384 (Fed.Cir.1987). An issue such as res judicata is decided under the law of the Federal Circuit only where it “turns on substantive matters that are unique to patent law.” Broyhill Furniture Indus., Inc. v. Craftmaster Furniture Corp., 12 F.3d 1080, 1082 (Fed.Cir.1993); accord Mars Inc., 58 F.3d at 618. Thus, a “pure question of the law of judgments,” such as whether preclusion may be invoked based on a parent-subsidiary relationship, is governed by regional circuit law despite the fact that “[t]he setting in which the question arises is a patent case.” Mars Inc., 58 F.3d at 618. As a result, I will apply Federal Circuit law to the non-infringement issue and First Circuit law to the preclusion and antitrust issues. V. Relitigation of Validity, Inequitable Conduct, and TJnenforceability Schneider has moved for partial summary judgment (1) dismissing SeiMed’s second affirmative defense of unenforceability with prejudice, (2) that BSC may not relitigate the issue of the Bonzel patent’s validity, and (3) that BSC may not relitigate the issue of inequitable conduct. Because these issues are material to both actions, I take them up at the outset. Schneider argues that SeiMed should not be allowed to relitigate issues of unenforceability because they were conclusively determined in the previous SeiMed action. For the same reason, Schneider also contends that BSC, as SciMed’s parent, should not be allowed to relitigate the issues of validity or inequitable conduct. BSC initially responds that Schneider has waived its preclusion arguments. In addition, SeiMed asserts that it did not have the opportunity to litigate the issues fully and fairly in the previous action, because Schneider allegedly made misleading representations and omissions (regarding the “person of ordinary skill in the art”) to Judge Alsop and to SciMed during the SciMed action. Finally, BSC argues that it cannot be bound by an earlier judgment rendered against SciMed. A. Waiver As a threshold issue, BSC argues that Schneider has waived any right to raise preclusion arguments because of the failure to assert them in the answer. While res judicata is an affirmative defense ordinarily considered waived unless pleaded, Fed.R.Civ.P. 8(c), there are exceptions. “The First Circuit has held that ... “where the substantive rights of parties are not endangered, it is within the discretion of the district court to permit it to be raised by motion.’ ” Hastings v. Union Boiler Co., 688 F.Supp. 63, 63-64 (D.Me.1988) (citing Diaz-Buxo v. Trias Monge, 593 F.2d 153, 154 (1st Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 64, 62 L.Ed.2d 42 (1979)). The purpose of the pleading requirement in Fed.R.Civ.P. 8(c) “is to give the opposing party notice of the plea of estoppel and a chance to argue, if he can, why the imposition of an estoppel would be inappropriate.” Blonder Tongue Labs., Inc. v. University of Ill. Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 1453, 28 L.Ed.2d 788 (1971). Mindful of this purpose, I find no prejudice from Schneider’s failure to plead the issue, and I will allow the defense to be raised. Initially, I note Schneider’s statement that it was unaware of any potential merger until the public announcement thereof on November 8, 1994 (Schneider Reply Partial Summ. J. (Validity) at 3), which was after Schneider filed its motion to dismiss (on June 15, 1994) and its answer and counterclaim (on October 27, 1994). Unlike the plaintiff in the ordinary case, therefore, BSC was not entitled to interpret Schneider’s failure to plead the defense as an indication that it would not be raised. Cf. Hastings, 688 F.Supp. at 64 (allowing res judicata to be raised where earlier judgment had not yet been entered at time of answer). Moreover, there is no question that, after the merger, BSC was aware of the preclusion issue. On April 10,1995, as BSC itself notes, it asked Judge Alsop for clarification of the SciMed injunction, “because Schneider had accused Boston Scientific of contempt of Judge Alsop’s Permanent Injunction Order in the Scimed action based on the merger with Scimed.” (BSC Opp. Partial Summ. J. (Validity) at 4.) Specifically, in a response to BSC’s discovery objections, Schneider wrote on February 23, 1995: “It is our position that BSC’s merger with Scimed, a company enjoined by the District Court in Minnesota, goes to the issue of willfulness, as well as those of invalidity, infringement and contempt.” (Schneider Reply Partial Summ. J. (Validity), Ex. 2 at 2.) Under these circumstances, Schneider’s assertion of the preclusion issue in the instant motion for partial summary judgment cannot be characterized as unfair surprise. Finally, BSC has not been unduly prejudiced because it has had ample opportunity to respond to the preclusion arguments by way of briefs and oral argument. See Diaz-Buxo, 593 F.2d at 154; see also Williams v. Ashland Eng’g Co., 45 F.3d 588, 593 (1st Cir.), cert. denied, — U.S. -, 116 S.Ct. 51, 133 L.Ed.2d 16 (1995). As a result, I exercise my discretion to allow Schneider to raise the preclusion arguments through its motions for summary judgment. B. Preclusion Arguments Schneider makes essentially two preclusion arguments. First, Schneider argues that, under the doctrine of stare deeisis, the previous finding of validity is binding on this Court regardless of the parties before it. Second, Schneider argues that, under the doctrine of res judicata or — more specifically — issue preclusion, SciMed and BSC are estopped from raising the issues of unenforceability, validity, and inequitable conduct in the instant actions. Because these issues all turn, in this case, on the same underlying conduct, I consider them together. 1. Stare Decisis Under the doctrine of stare decisis, determinations of law -are “binding in future cases before the same court or another court owing obedience to its decision.” Mendenhall v. Cedarapids, Inc., 5 F.3d 1557, 1570 (Fed.Cir.1993), cert. denied, 511 U.S. 1031, 114 S.Ct. 1540, 128 L.Ed.2d 192 (1994). Schneider contends that Judge Alsop’s finding of validity in the SciMed action, which was affirmed by the Federal Circuit, was a determination of law which this Court must follow. While the Federal Circuit “ha[s] not precluded invoking stare decisis where appropriate,” that court “has rejected stare decisis as generally inappropriate on the issue of validity of a patent.” Id. In other words, stare decisis applies where “the underlying factual findings in the two cases are the same,” id. at 1571, but this identity of facts rarely occurs in patent validity cases, see, e.g., Stevenson v. Sears Roebuck & Co., 713 F.2d 705, 711 (Fed.Cir.1983). First, the factual findings may differ, precluding application of stare decisis, where the records before the two courts differ: “A patent is not held valid for all purposes but, rather, not invalid on the record before the court.” 5 F.3d at 1571 (quoting Shelcore Inc. v. Durham Indus., Inc., 745 F.2d 621, 627 (Fed.Cir.1984)). Second, even if the records are identical, the defendant in the second case is entitled to have the evidence weighed by a new factfinder, who may validly reach different conclusions. See id. at 1570 (“[Sjtare decisis only applies if the underlying factual findings in the two cases are the same, not merely the evidence.”). Therefore, I am not bound to hold that the.Bonzel patent is valid unless my findings of fact are the same as those of Judge Alsop in SciMed. Because this case is in the summary judgment stage, I have not yet made findings of fact. Consequently, it is premature for me to consider the applicability of stare decisis. I turn instead to the antecedent question whether the SciMed decision precludes SciMed and BSC from even raising the issues in this case. 2. Issue Preclusion Issue preclusion, which is at times referred to as collateral estoppel or under the general heading of res judicata, bars relitigation of any factual or legal issue that was actually decided in previous litigation whether on the same or a different claim. See Grella v. Salem Five Cent Savs. Bank, 42 F.3d 26, 30 (1st Cir.1994) (citing Dennis v. Rhode Island Hosp. Trust, 744 F.2d 893, 899 (1st Cir.1984)). The purpose of the doctrine is to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). Five essential elements must be established for a successful application of issue preclusion: (1) the issue sought to be precluded must be the same as that involved in the prior action; (2) the issue must have been actually litigated; (3) the issue must have been determined by a valid and binding final judgment; (4) the determination of the issue must have been essential to the judgment; and (5) the party to the second action must be the same as or in privity with the parties in the first action. See NLRB v. Donna-Lee Sportswear Co., 836 F.2d 31, 34 (1st Cir.1987); see also Grella, 42 F.3d at 30. In addition, the parties in the first action must have had a “full and fair opportunity” to litigate the issue. See, e.g., DeCosta v. Viacom Int’l, Inc., 981 F.2d 602, 605 (1st Cir.1992), cert. denied, 509 U.S. 923, 113 S.Ct. 3039, 125 L.Ed.2d 725 (1993); see also Monarch Life Ins. Co. v. Ropes & Gray, 65 F.3d 973, 981 (1st Cir.1995) (citing Blonder-Tongue Labs., Inc. v. University of Ill. Found., 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971)). a. Relitigation of issues by SciMed In the SciMed litigation, Judge Alsop (1) granted summary judgment to Schneider on the defense of patent misuse after concluding that the defense had “no basis in fact or law,” Schneider (Europe) AG v. SciMed, No. 3-91 CIV 241, slip op. at 4, 1993 WL 463204 (D.Minn. May 14, 1993); (2) concluded after trial that Schneider “[ha]d not engage[d] in inequitable conduct,” SciMed, 852 F.Supp. at 868; and (3) concluded after trial that the Bonzel patent “[wa]s valid and enforceable,” id. SciMed, acknowledging that it “did litigate the validity and unenforeeability issues in Minnesota,” concedes that “[u]nder normal circumstances Schneider would be justified in asking that Scimed be subject to issue and claim preclusion based on the Minnesota judgment.” (SciMed Opp. Partial Summ. J. Unenforeeability at 3.) SciMed’s opposition, therefore, rests upon its assertion that it was denied a “full and fair opportunity” to litigate these issues before Judge Alsop. A party is denied a full and fair opportunity to litigate an issue if “he did not have a fair opportunity proeedurally, substantively and evidentially to pursue his claim.” Blonder-Tongue, 402 U.S. at 333, 91 S.Ct. at 1445. While an “appropriate inquir[y]” would be “whether without fault of his own the [party] was deprived of crucial evidence or witnesses,” the Supreme Court has noted that “no one set of facts, no one collection of words or phrases, will provide an automatic formula for proper rulings on estoppel pleas. In the end, decision will necessarily rest on the trial courts’ sense of justice and equity.” Id. at 333-34, 91 S.Ct. at 1445. SciMed, apparently interpreting the term “crucial evidence” rather broadly, asserts that a full and fair opportunity to litigate “presupposes complete access to all material information.” (SciMed Opp. Partial Summ. J. Unenforceability at 6.) SciMed argues that issue preclusion should not apply because (1) Schneider withheld from discovery a Statement of Undisputed Facts that it had submitted in a different ease, in which Schneider had asserted that the relevant “person of ordinary skill” included persons practicing as engineers; and (2) Schneider took the contrary position before Judge Alsop without disclosing its earlier stance. (Id. at 5-6.) However, even when I assume that the issue of the relevant person of ordinary skill was central to the outcome of the Minnesota litigation, (see id. at 6), I find that Schneider’s earlier position on the issue was not “crucial evidence” in the case. It is not unusual for a party to take contradictory positions in different litigations; ,it is even less unusual for a party to take a self-serving position in any given case. As a result, factfinders are influenced not by the fact that a party takes a particular position, but rather by the evidence offered to support it.' Moreover, it cannot be said that SciMed was deprived of the prior Statement of Undisputed Facts “without fault of [it]s own.” 402 U.S. at 333, 91 S.Ct. at 1445. That document, filed in the prior litigation without being placed under seal, was and is a public document which could have been obtained by SciMed at any time. In response to SciMed’s discovery request for all documents relating to any legal proceeding involving the Bonzel patent, Schneider responded that it “objected] to producing documents which are publicly available.” (Greco Deck, Ex. 4 at 15.) Apparently, SciMed neither moved to compel production nor sought to obtain these documents on its own. Because I find that the Statement of Undisputed Facts was not crucial evidence and, in any event, was at all times accessible by SciMed, I find that SciMed had a full and fair opportunity to litigate the issues before Judge Alsop. All of the other criteria for collateral estoppel exist, and I therefore hold that SciMed may not relitigate the issues of validity, enforceability, or inequitable conduct. Consequently, I will grant Schneider’s Motion for Partial Summary Judgment Dismissing SciMed’s Second Affirmative Defense. b. Litigation of issues by BSC BSC argues that SciMed’s previous litigation before Judge Alsop should not preclude BSC from litigating the same issues here. The Supreme Court, while noting that due process is violated when preclusion is applied to “one who is neither a party nor in privity with a party” to the previous action, recently recognized that “the term ‘privity’ is now used to describe various relationships between litigants that would not have come within the traditional definition of that term.” Richards v. Jefferson Cty., 517 U.S. 793, - - - & n. 4, 116 S.Ct. 1761, 1765-66 & n. 4, 135 L.Ed.2d 76 (1996). The ‘Various relationships” referred to by the Court are not easily defined: To be sure, the term “privity” has been criticized as not aiding analysis, but simply stating a conclusion that a particular non-party should be treated the same as a party for ... preclusion purposes. For that reason, courts have sometimes avoided the use of the term “privity” and instead have focused directly on the. question whether the relationship between the parties is such that one party should enjoy the benefit, or suffer the burden, of a judgment for or against another. Mars, Inc. v. Nippon Conlux Kabushiki-Kaisha, 58 F.3d 616, 619 (Fed.Cir.1995). Traditionally, privity has been found (1) where the nonparty substantially controlled the previous litigation, see Gonzalez v. Banco Central Corp., 27 F.3d 751, 758 & n. 5 (1st Cir.1994); Tyus v. Schoemehl, 93 F.3d 449, 454 (8th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1427, 137 L.Ed.2d 536 (1997); (2) where the nonparty is a successor-in-interest to a prior party, see Tyus, 93 F.3d at 454; or (3) under the doctrine of “virtual representation,” see Gonzalez, 27 F.3d at 758 & n. 5; Tyus, 93 F.3d at 454. While it appears that BSC had a degree of limited involvement in the Minnesota case at the appellate stage, 1 find that BSC did not “substantially control” that litigation. In addition, this case involves a different product, and thus BSC may not be estopped as a “successor-in-interest.” As a result, issue preclusion can apply only under the doctrine of virtual representation. The doctrine of virtual representation raises the same definitional problems as does the broader notion of privity. The First Circuit has stated that “[t]here is no black-letter rule. In the end, virtual representation is best understood as an equitable theory rather than as a crisp rule with sharp comers and clear factual predicates, such that a party’s status as a virtual representative of a non-party must be determined on a case-by-case basis.” Gonzalez, 27 F.3d at 761 (citations omitted). Nevertheless, the precedents do provide me with adequate guidance for deciding this case. The Gonzalez court “placed the theory ... on a short tether” by emphasizing that the nonparty cannot be bound based merely on an identity of interests with the party to the earlier action. Id. at 760. Moreover, “virtual representation has a pronounced equitable dimension. Thus, ... virtual representation will not serve to bar a nonparty’s claim unless the nonparty has had actual or constructive notice of the earlier litigation, and the balance of equities tips in favor of preclusion.” Id. On the other hand, privity may be established in proper circumstances even if the nonparty did not authorize representation by the party. See In re Medomak Canning, 922 F.2d 895, 901 (1st Cir.1990). The customarily difficult question of virtual representation is presented in an unusual posture by this ease, because the merger relationship between BSC and SciMed did not arise until after the SciMed litigation had been substantially completed and after this case had been filed by BSC. Indeed, both parties candidly confess their inability to locate a single case dealing with this unique fact situation. I can, therefore, without departing from available precedent, proceed on the assumption that collateral estoppel may in some cases be based on the relationship that exists at the time of the subsequent litigation. Cf. Richards v. Jefferson Cty., 517 U.S. 793, -, 116 S.Ct. 1761, 1766, 135 L.Ed.2d 76 (1996) (stating that collateral estoppel applies “when it can be said that there is ‘privity' between a party to the second case and a party who is bound by an earlier judgment”) (emphasis added). To be sure, while a subsequently-formed relationship is not a per se barrier to issue preclusion, such timing issues may well affect the balance of equities in a particular case. Therefore, I must address the question of whether the subsequently-formed relationship in this case is “such that one party should enjoy the benefit, or suffer the burden, of a judgment for or against another.” Mars, Inc., 58 F.3d at 619. Specifically, I find that the criteria set forth for the application of the virtual representation theory have been met in this case. See Gonzalez, 27 F.3d at 760. First, there is — and was at the time of the previous litigation — a clear identity of interests between BSC and SciMed with respect to the relevant issues — i.e., the validity and enforceability of a patent, held by a common competitor, which was potentially infringed by both companies. Second, there can be no doubt that BSC had actual notice of the Minnesota litigation while it was being conducted, and BSC certainly had such notice when it decided to merge with SciMed. (BSC Material Facts ¶ 5.) Third, the balance of equities tips decidedly in favor of preclusion. Among the factors to be weighed are “[e]lose nonlitigating relationships with a party, participation, apparent acquiescence, and perhaps deliberate maneuvering to avoid the effects of the first action.” Crane v. Department of Agriculture, Food & Rural Resources, 602 F.Supp. 280, 288 (D.Me.1985) (quoting 18 Charles A. Wright et al., Federal Practice & Procedure § 4457, at 502 (West 1981)). Thus, BSC’s strongest arguments stem from the fact that its relationship with SciMed was not formed until the later appellate stages of the Minnesota case. As a result, BSC had almost no opportunity to participate directly in the earlier litigation, or to acquiesce to SciMed’s actual litigation strategy. While these factors themselves do weigh against precluding BSC from litigating the issues here, I find that several considerations mitigate any inequitable impact upon BSC. Most importantly, BSC was fully aware of the Minnesota litigation when it chose to merge with SciMed. According to BSC, the merger discussions did not begin until after Judge Alsop entered his judgment, and during those discussions BSC’s counsel contacted SciMed’s counsel to assess the status the litigation. (BSC Material Facts- ¶¶ 3, 5.) Especially in light of its failure, even at this point, to identify precedent on the issue, BSC could not justifiably have held a firm expectation that it would be allowed to relitigate issues which SciMed had recently argued without success. Bather, the potential collateral estoppel effect of -the SciMed judgment was simply one of the potential liabilities to which BSC knowingly subjected itself when it decided to enter into the merger. Moreover, BSC can hardly argue with a straight face that SciMed’s representation of BSC’s interests was less than adequate: indeed, SciMed’s in-house patent counsel during that case, John A. Rissman, has been hired by BSC to be its in-house patent counsel and is now assisting in the management of this litigation. (BSC Material Facts ¶8.) As a result, upon fact-intensive analysis of the circumstances of this case, application of issue preclusion does not appear unfair to BSC. of By contrast, allowing BSC to litigate validity and inequitable conduct appears inappropriate. Two of the factors mentioned above, close nonlitigating relationships and avoidance of the effects of the first judgment, are especially relevant. As parent and wholly-owned subsidiary, BSC and SciMed clearly have the type of close relationship which, if not indicating privity per se, at the very least contributes significantly to a finding that BSC should be held to have assumed the burden of a judgment against SciMed. See Mars Inc. v. Nippon Conlux Kabushiki-Kaisha, 58 F.3d 616, 619 (Fed.Cir.1995) (applying claim preclusion based in part on fact that present and former defendants were parent and wholly-owned subsidiary); Nordhorn v. Ladish Co., 9 F.3d 1402, 1405 (9th Cir.1993) (“Corporate affiliations may be relevant in determining whether two parties are in privity for purposes of issue or claim preclusion.”); G & T Terminal Packaging Co. v. Consolidated Rail Corp., 719 F.Supp. 153, 159 (S.D.N.Y.1989) (“Subsidiaries are in privity with their principal for res judicata purposes when, as here, they sufficiently represent the principal’s interests.”); see also Johnson & Johnson v. Coopervision, Inc., 720 F.Supp. 1116, 1123 (D.Del.1989). Schneider suggests that the relationship is especially close — and, indeed, that I should treat BSC and Schneider as one entity — due to an alleged failure to maintain corporate formalities. In light of the fact that BSC and SciMed have merged relatively recently, however, I do not find such transgressions— when I view the evidence in the light most favorable to BSC — to be sufficient here. The more significant consideration is the relationship between BSC and SciMed with respect to the SYNERGY catheters at issue in this ease. See Mars Inc. 58 F.3d at 619 (applying claim preclusion based in part upon “[t]he relationship between [the parent] and its wholly-owned subsidiary with respect to the importation and sales of the [product at issue]”). While BSC continues to manufacture the SYNERGY catheters, it has transferred all sales of those products to SciMed. (BSC Opp. Partial Summ. J. Validity at 5.) See 58 F.3d at 619 (“With respect to the machines at issue in this case, [the subsidiary] served as the intermediary between [the parent] and the ultimate purchasers.”). Therefore, I find that the effective identity of the relevant nonlitigating relationship between BSC and SciMed weighs heavily in favor of applying collateral estoppel. Finally, due to the nature of the relationship outlined above, litigation by BSC of validity and inequitable conduct would effectively amount to relitigation of those issues by SciMed. I recognize that, under applicable patent doctrines, SciMed stands to benefit if any party successfully challenges the validity or enforceability of Schneider’s patent. Nevertheless, the situation is different where, as here, the party litigating the issue the second time is so closely related to the party bound by an earlier judgment. Thus, the First Circuit has noted that the relevant considerations in the privity analysis include not only whether the nonparty “had an opportunity vicariously to present evidence and argument” in the first action, but also whether the party in the first action is now “using [the nonparty] as its agent for the purpose of evading the [earlier] judgment.” General Foods Corp. v. Massachusetts Dep’t of Pub. Health, 648 F.2d 784, 790 (1st Cir.1981); see Crane v. Department of Agriculture, Food & Rural Resources, 602 F.Supp. 280, 288-89 (D.Me.1985). Because litigation of the issues by BSC would allow SciMed, its wholly-owned subsidiary, to evade the Minnesota judgment, failure to apply collateral estoppel would be seriously unfair to Schneider and would undermine the public policies behind that doctrine. In sum, while emphasizing that no one factor is dispositive, I find that the equitable considerations weighing in favor of allowing BSC to litigate the issues are outweighed by those in favor of preclusion. The theory of virtual representation applies to the facts of this case. In other words, I consider BSC to be in privity with SciMed, because the relationship between the parties is such that BSC should be held to have assumed the burden of Judge Alsop’s judgment against SciMed on the issues of validity and inequitable conduct. See Mars, Inc., 58 F.3d at 619. Consequently, I will grant Schneider’s Motion for Partial Summary Judgment That Boston Scientific May Not Relitigate the Issue of Validity, and I will grant Schneider’s Motion for Partial Summary Judgment That Boston Scientific May Not Relitigate the Issue of Inequitable Conduct. VI. Non-Infringement A. The Contours of Patent Infringement Law Because neither SciMed nor BSC may contest the Bonzel patent’s validity or enforceability, I will next address the issue of BSC’s alleged infringement. Both the Supreme Court and the Federal Circuit have had occasion recently to clarify the dimensions of patent infringement law, and I turn first to a review of the law.. A determination regarding patent infringement is a two-step process. First, the court interprets the claim to determine its scope and meaning. See Dolly, Inc. v. Spalding & Evenflo Cos., 16 F.3d 394, 397 (Fed.Cir.1994); Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 796 (Fed.Cir.1990). Second, the claim as properly construed must be compared to the accused device. See Carroll Touch, Inc. v. Electro Mechanical Sys., 15 F.3d 1573, 1576 (Fed.Cir.1993). The first step, interpretation of claims, is exclusively within the province of the court. See Markman v. Westview Instruments, Inc., 517 U.S. 370, -, 116 S.Ct. 1384, 1396, 134 L.Ed.2d 577 (1996). Claim interpretation requires consideration of the claim language, the specification, the prosecution history, and expert testimony. Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed.Cir.1995), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996); Texas Instruments Inc. v. United States Int’l Trade Comm’n, 988 F.2d 1165, 1171 (Fed.Cir.1993). It is important to emphasize that the specification, prosecution history, and expert testimony are employed only to assist the court in understanding the meaning of the claim language. That is, such evidence may not be used to in any way “enlarge, diminish, or vary” claim limitations which are otherwise clear. See Markman, 52 F.3d at 979-81. Thus, “[u]nless the specification or the file history indicates that the inventor intended otherwise, a claim term will be accorded its ordinary and accustomed meaning.” Wolverine World Wide, Inc. v. Nike, Inc., 38 F.3d 1192, 1196 (Fed.Cir.1994). For example, while the patentee is permitted to be his own lexicographer, any special definition given to a word must be clearly stated in the specification. See Markman, 52 F.3d at 980. In the second step, infringement is found if the accused device contains elements literally identical or substantially equivalent to each claimed element of the patented invention. See Warner-Jenkinson Co. v. Hilton Davis Chemical Co., — U.S. -, -, 117 S.Ct. 1040, 1054, 137 L.Ed.2d 146 (1997); Wolverine World Wide, Inc., 38 F.3d at 1196. This is often referred to as the “all elements” rule of Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 935 (Fed.Cir.1987), cert. denied, 485 U.S. 961, 108 S.Ct. 1226, 99 L.Ed.2d 426 (1988). If no literal infringement is found, the factfinder analyzes whether the patent is violated under the doctrine of equivalents. In the landmark ease of Graver Tank & Manufacturing Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097 (1950), the Supreme Court stated that limiting patent enforcement to literal infringement “would place the inventor at the mercy of verbalism and would be subordinating substance to form,” which would encourage infringers “to make unimportant and insubstantial changes and substitutions which, though adding nothing, would be enough ... [to evade] the reach of the law.” Id. at 607, 70 S.Ct. at 856. Earlier this year, on the other hand, the Supreme Court cautioned that the doctrine must not be expanded so far as to violate the rule against judicial enlargement of the scope of patent claims. Warner-Jenkinson Co. v. Hilton Davis Chem. Co., — U.S. -, -, 117 S.Ct. 1040, 1049, 137 L.Ed.2d 146 (1997). The Court explained that these twin evils may be avoided by finding infringement only when each element or part of the patented device, rather than the device as a whole, has an equivalent in the accused device. Id.; see Dolly, Inc., 16 F.3d at 398. This approach does not appear to be inconsistent with the Federal Circuit’s observation in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 72 F.3d 857, 861 (Fed.Cir.1995), remanded, — U.S. -, 117 S.Ct. 1240, 137 L.Ed.2d 323 (1997), that “there need not be one-to-one correspondence between the components of an accused device and the claimed invention.” I recognize that the Supreme Court has vacated Festo Corp. and remanded the case for reconsideration in light of Warner-Jenkinson Co.; the observation, however, seems to me to continue to be well founded. Thus, multiple elements of the patented device may each have an equivalent in the same element of the accused device, and multiple elements of the accused device may together make up the equivalent of a single element of the patented device. See Dolly, Inc., 16 F.3d at 398. The traditional test under the doctrine of equivalents is whether “the substituted element in the accused device performs substantially the same function, in substantially the same way, to produce substantially the same result as the claimed element.” Eastman Kodak Co. v. Goodyear Tire & Rubber Co.; 114 F.3d 1547, 1560 (Fed.Cir.1997) (citing Warner-Jenkinson, — U.S. at -, 117 S.Ct. at 1054); see, e.g., Wright Med. Tech., Inc. v. Osteonics Corp., 122 F.3d 1440, 1443-44 (Fed.Cir.1997). However, the Federal Circuit recently observed that “[i]t goes too far ... to describe the function-way-result test as ‘the’ test for equivalency.... As technology becomes more sophisticated, and the innovative process more complex, the function-way-result test may not invariably suffice to show the substantiality of the differences.” Hilton Davis Chem. Co. v. Warner-Jenkinson Co., 62 F.3d 1512, 1518 (Fed.Cir.1995), rev’d on other grounds, — U.S. -, -, 117 S.Ct. 1040, 1054, 137 L.Ed.2d 146 (1997) (“We expect that the Federal Circuit will refine the formulation of the test for equivalence in the orderly course of case-by-case determinations, and we leave such refinement to that court’s sound judgment in this area of its special expertise.”). The Federal Circuit listed several considerations beyond the traditional test that may be relevant to an investigation of equivalence. For example, “[t]he known interchangeability of the accused and claimed elements is potent evidence that one of ordinary skill in the relevant art would have considered the change insubstantial.” Id. at 1519. In addition, evidence of copying is also relevant because “[w]hen an attempt to copy occurs, the fact-finder may infer that the copyist, presumably one of some skill in the art, has made a fair copy, with only insubstantial changes.” Id. On the other hand, “[w]hen a competitor becomes aware of a patent, and attempts to design around its claims, the fact-finder may infer that the competitor, presumably one of skill in the art, has designed substantial changes into the .new product to avoid infringement.” Id. at 1520. Finally, the scope of the doctrine of equivalents is limited by the application of prosecution history estoppel. “Prosecution history estoppel bars the patentee from recapturing subject matter that was surrendered by the patentee during prosecution in order to promote allowance of the claims.” Insituform Tech., Inc. v. Cat Contracting, Inc., 99 F.3d 1098, 1107 (Fed.Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1555, 137 L.Ed.2d 703 (1997). In other words, there is no infringement if an element of the accused device, though substantially equivalent to an element of the patented device, was originally included within the scope of the claims but was relinquished in order to secure the patent. Estoppel applies when the claim has been “narrowed by amendment for a ‘substantial reason related to patentability,’ such as to avoid a prior art rejection.” Regents of Univ. of Cal. v. Eli Lilly & Co., 119 F.3d 1559, 1573 (Fed.Cir.1997) (quoting Warner-Jenkinson, — U.S. at -, 117 S.Ct. at 1049-51). In this situation, the patentee bears the burden of proving that the amendment had a purpose unrelated to patentability. Warner-Jenkinson, — U.S. at -, 117 S.Ct. at 1054. In addition, the Federal Circuit has held that “[e]stoppel may arise solely from prosecution arguments made in support of non-amended claim language.” Baxter Diagnostics, Inc. v. PB Diagnostic Sys., Inc., 57 F.3d 1082 (Table), 1995 WL 253177, at *6 (Fed.Cir.1995) (citing Haynes Int’l, Inc. v. Jessop Steel Co., 8 F.3d 1573, 1579 (Fed.Cir.1993)); see Texas Instruments, Inc. v. United States Int’l Trade Comm’n, 988 F.2d 1165, 1174 (Fed.Cir.1993). Ultimately, while application of prosecution history estoppel is a question of law, see Haynes Int’l, 8 F.3d at 1574, infringement under the doctrine of equivalents is a question of fact, see Hilton Davis, 62 F.3d at 1520. Accordingly, “[w]here the evidence is such that no reasonable jury could determine two elements to be equivalent, district courts are obliged to grant partial or complete summary judgment.” Warner-Jenkinson, — U.S. at - n. 8, 117 S.Ct. at 1053 n. 8; see, e.g., Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 795 (Fed.Cir.1990); Townsend Eng’g v. Hitec Co., 829 F.2d 1086, 1092 (Fed.Cir.1987). B. The Bonzel Claims Turning to the record before me, BSC’s overriding argument is that its entire family of SYNERGY catheters — , SYNERGY II, SYNERGY (Europe) and OUTSIDER — lack a guide wire tube that terminates, and instead employ a full-length guide wire tube with an exit hole or port. The pertinent language from Claim 1 reads: A dilatation catheter comprising ... a first, relatively long, elongated hollow tube having distal and proximal ends and opening adjacent its distal end into the interior of the expandable balloon, the first tube being sealingly connected to the proximal end of the balloon, and a second, relatively short, elongated hollow tube integral with said first tube, having distal and proximal ends, and adapted to receive a guide wire in a sliding fit, ... and the second tube terminating at its proximal end substantially distally of the proximal end of the first tube in an aperture open to the exteri- or of the catheter____ (BSC Mot. Summ. J. Non-Infringement, Ex. 2.) Each independent claim of the Bonzel patent (claims 1, 4, 5, 6, 11, 17, 22, 27) includes the claim language which requires a short second tube that terminates and first tube sufficiently stiff to advance the balloon. The dependent claims (claims 3, 7-10, 12-16, 18-21, 23-26), incorporate the independent claims and thus the same limitations. (BSC Mem. Summ. J. Non-Infringement at 12 n. 7.) Not content to rely upon the plain meaning of the claim language, BSC turns to the surrounding claims, specifications, and prosecution history to support its argument that the Bonzel patent excludes a full-length second tube. First, surrounding claim language states: ... said first tube having sufficient stiffness that the second tube and expandable balloon can readily be advanced or withdrawn together in use along the guide wire by exerting a pushing or pulling force upon the first tube____ (BSC Mot. Summ. J. Non-Infringement, Ex. 2.) BSC reasons that the first tube would not be required to have stiffness sufficient to advance the entire catheter if the claim included a full-length second tube. (BSC Mem. Summ. J. Non-Infringement at 19.) Second, Bonzel argued in the prosecution history that his catheter, by eliminating most of the guide wire tube, had a smaller outer profile and therefore allowed more room outside the catheter for the injection of a dye used to visualize the angioplasty procedure. (BSC Mot. Summ. J. Non-Infringement, Ex. 12, at 40.) Finally, Bonzel also argued in the prosecution history that his catheter was non-obvious because it went against the conventional wisdom by eliminating the ability to perform guide wire exchange, which requires a full-length guide wire tube. (Id at 98-99.) In response, Schneider does not appear to contest BSC’s basic interpretation of the Bonzel claims — i.e., that the claims exclude a full-length second tube. Instead, Schneider emphasizes various other aspects of the claims, such as the requirement that the second tube be hollow and adapted to receive the guide wire in a sliding fit, and the fact— or at least the SciMed court’s finding of fact — that the first tube may be constructed of several pieces. (Schneider Opp. Summ. J. Non-Infringement at 5-6.) In essence, Schneider contends that the “second tube” of the Bonzel claim actually means the portion of the catheter through which the guide wire travels, and the “first tube” actually means any structure which imparts stiffness to the catheter. Of course, this interpretation is specifically crafted to include the SYNERGY catheters within the scope of the claims. In any event, I find that the claim language — e.g., “first tube,” “second tube,” “relatively short,” “terminating,” “sufficient stiffness” — is clear when given its ordinary and accustomed meaning. The Bonzel claim includes a balloon, a long inflation tube, and a short guide wire tube which comes to an end near the balloon end of the catheter. While the first tube must have sufficient stiffness to advance the entire catheter on its own, the first tube may obtain additional stiffness from other elements. In addition, nothing in the claim precludes additional structures beyond the elements mentioned above. While the surrounding evidence cited by BSC confirms the plain meaning of the claims, I find consideration of such evidence unnecessary. Schneider has failed to point to any evidence clearly showing that the claim language was given a special meaning, and therefore the ordinary and accustomed meaning of that language suffices to interpr