Odetics, Inc. v. Storage Technology Corporation, Visa International Service Association, Inc., Visa Usa, Inc. And Crestar Bank, Inc., Defendants-Cross

Opinion for the court filed by Circuit Judge CLEVENGER. Dissenting opinion filed by Circuit Judge LOURIE.

On March 27, 1998, a jury impaneled in the United States District Court for the Eastern District of Virginia concluded that automated storage library systems manufactured and sold by Storage Technology Corporation, and used by Visa International Service Association, Inc., Visa USA, Inc., and Crestar Bank, Inc. (collectively, “STK”) literally infringed United States Patent No. 4,779,151 (“the T51 patent”) owned by the plaintiff, Odetics, Inc. (“Odetics”). Finding willful infringement, the jury awarded $70.6 million in damages. After initially denying STK’s renewed motion for Judgment as a Matter of Law (“JMOL”), the district court sua sponte reconsidered, granting the JMOL and ordering that judgment be entered in favor of STK. The district court deemed its reconsidered decision to be “mandat[edj” by “the analytical framework established” by this court’s opinion in Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, 46 U.S.P.Q.2d 1752 (Fed.Cir.1998). See Odetics, Inc. v. Storage Tech. Corp., 14 F.Supp.2d 807, 809, 47 U.S.P.Q.2d 1923, 1924 (ED.Va.1998) (“Odetics VII”). Odetics appeals the reconsideration judgment, as well as earlier judgments partially denying its request for a permanent injunction, see Odetics, Inc. v. Storage Tech. Corp., 14 F.Supp.2d. 785, 47 U.S.P.Q.2d 1573 (E.D. Va.1998) (“Odetics V”), excluding certain time periods from the willful infringement verdict, see Odetics, Inc. v. Storage Tech. Corp., No. 95-881-A, slip op. at 2 (E.D.Va. Feb. 12, 1998) (“Odetics IV”), and denying its request for enhanced damages, see Odetics, Inc. v. Storage Tech. Corp., 14 F.Supp.2d 800 (E.D.Va.1998) (“Odetics VI”).

STK cross-appeals the district court s holding that its validity defense, based on 35 U.S.C. § 102(g), was barred as within the scope of this court’s mandate in an earlier appeal of this case, Odetics, Inc. v. Storage Tech. Corp., 116 F.3d 1497, 1997 WL 357598 (Fed.Cir.1997) (Table) (“Odetics II”). See Odetics, Inc. v. Storage Tech. Corp., No. 95-881-A, slip op. at 1 (E.D.Va. Dec. 3, 1997), as clarified by No. 95-881-A, slip op. at 3-4 (Jan. 8, 1998) (“Odetics III”). STK also appeals the district court’s decision to exclude certain evidence from the jury. See id., slip op. at 1.

Because Chiuminatta did not mark a change in the proper infringement analysis under § 112, ¶ 6, and the jury’s verdict is supported by substantial evidence, we reverse the grant of JMOL and order the jury’s verdict reinstated. We affirm, however, the district court’s other judgments on appeal..

I

This patent infringement action, making its second appearance before this court, see Odetics II, 116 F.3d 1497, 1997 WL 357598 (vacating judgment of noninfringement), concerns robotic tape storage systems, which are typically used to store, organize, and retrieve videotapes or computer data tapes. The storage systems generally consist of a large, generally cylindrical housing with a pivoting retrieval mechanism, such as a robotic arm, located in the center of the housing. Acting on commands to retrieve certain tapes, the robotic arm can selectively grip the desired tape, removing it from its storage shelf and placing it on another shelf or in a tape player/recorder. These systems are highly automated and are especially useful in situations where large quantities of data must be easily and quickly retrieved from storage.

A

At issue are claims 9 and 14 of the T51 patent. (Although claim 8 was also assert*1264ed, the district court granted summary judgment of noninfringement with respect to that claim — a judgment that, in light of our overall disposition, is now moot.) Claim 9 reads as follows (emphasis supplied to highlight disputed limitation):

9. A tape cassette handling system comprising:

a plurality of tape transports;

a housing including a cassette storage library having a plurality of storage bins and at least one cassette access' opening for receiving cassettes to be moved to the storage bins or to the tape transports, or for receiving cassettes to be removed from the library or from the tape transports;

a rotary means rotatably mounted within the library adjacent the access opening for providing access to the storage library, the rotary means having

one or more holding bins each having an opening for receiving a cassette, wherein the rotary means is rotatable from a first position in which the opening of at least one holding bin is accessible from outside of the housing to a second position in which the opening of at least one holding bin is accessible from inside of the housing; and

cassette manipulator means located within the housing for selectively moving cassettes between the rotary means, said storage bins and said tape transports.

Claim 14 is identical in all relevant aspects.

The critical “rotary means” claim element is in means-plus-function form, requiring that it “be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.” 35 U.S.C. § 112, ¶ 6 (1994). In Odetics II, this court held that the structure corresponding to the “rotary means” element was “the components that receive the force and rotate as a result of that force (ie., the rod, gear, and rotary loading and loading mechanisms).” 1997 WL 357598, at *6. This court noted that this structure could be seen in Fig. 3 of the 151 patent, except that the structure did not include the motor (52) or its gear (54).

*1265[[Image here]]

Thus, the structure corresponding to the “rotary means” element, as depicted in Fig. 3 of the ’151 patent, is a set of tape holders or bins, a rod providing the axis of rotation, and a gear capable of receiving a force sufficient to cause the structure to accomplish the claimed “rotary” function.

STK manufactures and sells Library Storage Modules (“libraries”) to companies, such as Visa and Crestar, that require large quantities of automated data storage. Library systems sold by STK are scaleable: that is, additional libraries may be added to increase the amount of storage space. When libraries are added, STK uses a device known as a “pass-thru port” to link the libraries, allowing data tapes to be passed from library to library. The pass-thru ports bridge the gaps between the libraries using a “bin array” — a box-like set of tape slots or holders — that slides linearly along a short track. As the bin arrays move from library to library, they rotate to allow tapes to be manipulated from within the library housings. This rotation is accomplished by the use of “cam followers,” or pins, that are affixed to the bottom of the bin array. As a bin array moves along its track, the pins come into contact with angled structures, or “cams,” that exert force against the pins, causing the bin array to rotate about a rod that forms its axis. The “bin array” in the accused devices, then, comprises a set of tape holders or bins, a rod, and pins.

B

In 1995, Odetics sued STK, claiming that three of STK’s commercial storage library offerings (known as the ACS 4400, the PowderHorn, and the WolfCreek) infringed claims 8, 9, and 14 of its ’151 patent. On cross-motions for summary judgment, the district court found as a matter of law that the claims were not literally infringed, and partially granted STK’s motion for summary judgment on the issue of laches. See Odetics, Inc. v. Storage Tech., 919 F.Supp. 911, 38 U.S.P.Q.2d 1873 (E.D.Va.1996) (“Odetics I”). After receiving instructions from the district court regarding the meaning of disputed terms, a jury considering the issues of validity and infringement under the doctrine of equiva*1266lents found the asserted claims of the ’151 patent not invalid and not infringed.

In late 1996, Odetics appealed. We held that the district court’s claim construction was erroneous, and therefore vacated the judgment entered by the district court, remanding the case for further proceedings in light of the correct claim interpretation. See Odetics II, 1997 WL 357598, at *7. The case returned to the district court, where a second jury trial commenced on March 23, 1998, resulting in a verdict of willful infringement on March 27, and an award of $70.6 million in damages.

In post-trial motions, the district court, on May 1, 1998, denied STK’s motion for JMOL and alternative motion for a new trial. See Odetics, No. 95-881-A (E.D.Va. order filed May 1, 1998). Sometime in May or June 1998, the district court, “[a]f-ter denying the motions [for JMOL and a new trial] ... learned of the Federal Circuit’s decision in Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, [46 U.S.P.Q.2d 1752] (Fed.Cir.1998).” Odetics VII, 14 F.Supp.2d at 810, 47 U.S.P.Q.2d at 1925. The district court, concluding that Chiuminatta “potentially counseled a contrary result in the disposition of[ ] the JMOL motion” ordered the parties to file supplemental memoranda discussing the impact of the opinion on this case. Id. After receiving such briefing and conducting a hearing, the district court reversed its earlier denial of STK’s motion for JMOL, holding that Chiuminatta “mandatefs] entry of judgment as a matter of law in favor of the defendants.” Id. at 807, 47 U.S.P.Q.2d at 1924. This appeal followed, vesting us with jurisdiction pursuant to 28 U.S.C. § 1295(a)(1) (1994).

II

We review a grant of JMOL without deference to the district court. See, e.g., Texas Instruments Inc. v. Cypress Semiconductor Corp., 90 F.3d 1558, 1563, 39 U.S.P.Q.2d 1492, 1496 (Fed.Cir.1996); Markman v. Westview Instruments, Inc., 52 F.3d 967, 975, 34 U.S.P.Q.2d 1321, 1326 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Entry of JMOL is inappropriate unless the jury’s verdict is unsupported by substantial evidence or premised on incorrect legal standards. See, e.g., Applied Medical Resources Corp. v. United States Surgical Corp., 147 F.3d 1374, 1376, 47 U.S.P.Q.2d 1289, 1290 (Fed.Cir.1998) cert. denied, - U.S. -, 119 S.Ct. 870, 142 L.Ed.2d 772 (1999); Markman, 52 F.3d at 975, 34 U.S.P.Q.2d at 1326.

A

Because the district court explicitly premised its grant of STK’s JMOL motion on the “mandate” resulting from its review of the Chiuminatta opinion, we must first decide whether, in the words of the district court, Chiuminatta “announced a significant change in the proper mode of infringement analysis under § 112, ¶ 6.” Odetics VII, 14 F.Supp.2d at 811, 47 U.S.P.Q.2d at 1926. Indeed, the crux of the district court’s reading of Chiuminatta is that statutory equivalence under § 112, ¶ 6 requires “component by component” equivalence between the relevant structure identified in the patent and the portion of the accused device asserted to be structurally equivalent. Id. at 814 n. 12, 47 U.S.P.Q.2d at 1929 n. 12 (“[I]t should be noted that the jury’s conclusion is perhaps explained by the fact that it was not specifically instructed to compare the two [structures], component by component.... Thus, the jury may erroneously have thought it was sufficient to compare the two structures in gross, thereby leading to a conclusion contrary to law.”). This reading of Chiuminatta misapprehends § 112, ¶ 6 infringement analysis and is therefore incorrect.

A claim limitation written in means-plus-function form, reciting a function to be performed rather than definite structure, is subject to the requirements of 35 U.S.C. § 112, ¶ 6 (1994). See B. Braun Med., Inc. v. Abbott Labs., 124 F.3d 1419, 1424, 43 U.S.P.Q.2d 1896, 1899 (Fed.Cir.1997). As such, the limitation must be construed “to cover the corresponding *1267structure, material, or acts described in the specification and equivalents thereof.” See 35 U.S.C. § 112, ¶ 6; B. Braun Med,., 124 F.3d at 1424, 43 U.S.P.Q.2d at 1899. Literal infringement of a § 112, ¶ 6 limitation requires that the relevant structure in the accused device perform the identical function recited in the claim and be identical or equivalent to the corresponding structure in the specification. See, e.g., Al-Site Corp. v. VSI Int’l, Inc., 174 F.3d 1308, 1320, 50 U.S.P.Q.2d 1161, 1168 (Fed.Cir.1999); Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 934, 4 U.S.P.Q.2d 1737, 1739 (Fed.Cir.1987) (en banc). Functional identity and either structural identity or equivalence are both necessary. See Pennwalt, 833 F.2d at 934, 4 U.S.P.Q.2d at 1739.

Structural equivalence under § 112, ¶ 6 is, as noted by the Supreme Court, “an application of the doctrine of equivalents ... in a restrictive role.” Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 520 U.S. 17, 28, 117 S.Ct. 1040, 137 L.Ed.2d 146, 41 U.S.P.Q.2d 1865, 1870 (1997). As such, “their tests for equivalence are closely related,” Chiuminatta, 145 F.3d at 1310, 46 U.S.P.Q.2d at 1757, involving “similar analyses of insubstantiality of differences.” Al-Site, 174 F.3d at 1321, 50 U.S.P.Q.2d at 1168 (quoting Chiuminatta, 145 F.3d at 1310, 46 U.S.P.Q.2d at 1758). See also Valmont Indus., Inc. v. Reinke Mfg. Co., 983 F.2d 1039, 1043, 25 U.S.P.Q.2d 1451, 1455 (Fed Cir.1993) (“The word ‘equivalent’ in section 112 invokes the familiar concept of an insubstantial change.”). In the doctrine of equivalents context, the following test is often used: if the “function, way, or result” of the assertedly substitute structure is substantially different from that described by the claim limitation, equivalence is not established. See, e.g., Warner-Jenkinson, 520 U.S. at 39-40, 41 U.S.P.Q.2d at 1875. As we have noted, this tripartite test developed for the doctrine of equivalents is not wholly transferable to the § 112, ¶ 6 statutory equivalence context. See Alpex Computer Corp. v. Nintendo Co., 102 F.3d 1214, 1222, 40 U.S.P.Q.2d 1667, 1673 (Fed.Cir.1996); Valmont, 983 F.2d at 1043, 25 U.S.P.Q.2d at 1455; D.M.I., Inc. v. Deere & Co., 755 F.2d 1570, 1575, 225 U.S.P.Q. 236, 239 (Fed.Cir.1985). Instead, the statutory equivalence analysis, while rooted in similar concepts of insubstantial differences as its doctrine of equivalents counterpart, is narrower. See Al-Site, 174 F.3d at 1320 n. 2, 50 U.S.P.Q.2d at 1168 n. 2. This is because, under § 112, ¶ 6 equivalence, functional identity is required; thus the equivalence (indeed, identity) of the “function” of the assertedly substitute structure, material, or acts must be first established in order to reach the statutory equivalence analysis. See 35 U.S.C. § 112, ¶ 6; Al-Site, 174 F.3d at 1320, 50 U.S.P.Q.2d at 1168; Chiuminatta, 145 F.3d at 1308, 46 U.S.P.Q.2d at 1755; Alpex, 102 F.3d at 1222, 40 U.S.P.Q.2d at 1673; Pennwalt, 833 F.2d at 934, 4 U.S.P.Q.2d at 1739. The content of the test for insubstantial differences under § 112, ¶ 6 thus reduces to “way” and “result.” That is, the statutory equivalence analysis' requires a determination of whether the “way” the assertedly substitute structure performs the claimed function, and the “result” of that performance, is substantially different from the “way” the claimed function is performed by the “corresponding structure, acts, or materials described in the specification,” or its “result.” Structural equivalence under § 112, ¶ 6 is met only if the differences are insubstantial, see Chiuminatta, 145 F.3d at 1308, 46 U.S.P.Q.2d at 1756; that is, if the assertedly equivalent structure performs the claimed function in substantially the same way to achieve substantially the same result as the corresponding structure described in the specification. See 35 U.S.C. § 112, ¶ 6 (means-plus function claim literally covers “the corresponding structure, material, or acts described in the specification and equivalents thereof” (emphasis supplied)).

The similar analysis of equivalents under § 112, ¶ 6 and the doctrine of equivalents does not, however, lead to the *1268conclusion that Pennwalt and Warner-Jenkinson command a component-by-component analysis of structural equivalence under § 112, ¶ 6. It is of course axiomatic that “[e]ach element contained in a patent claim is deemed material to determining the scope of the patented invention.” Warner-Jenkinson, 520 U.S. at 29, 117 S.Ct. 1040, 41 U.S.P.Q.2d at 1871. Thus a claim limitation written in § 112, ¶ 6 form, like all claim limitations, must be met, literally or equivalently, for infringement to lie. See, e.g., Pennwalt, 833 F.2d at 935, 4 U.S.P.Q.2d at 1739. As we noted above, such a limitation is literally met by structure, materials, or acts in the accused device that perform the claimed function in substantially the same way to achieve substantially the same result. The individual components, if any, of an overall structure that corresponds to the claimed function are not claim limitations. Rather, the claim limitation is the overall structure corresponding to the claimed function. This is why structures with different numbers of parts may still be equivalent under § 112, ¶ 6, thereby meeting the claim limitation. See, e.g., Al-Site, 174 F.3d at 1321-22, 50 U.S.P.Q.2d at 1169 (upholding jury verdict of § 112, ¶ 6 equivalence between “a mechanically-fastened loop., in-clud[ing] either the rivet fastener or the button and hole fastener” and “holes in the arms [of an eyeglass hanger tag]”). The appropriate degree of specificity is provided by the statute itself; the relevant structure is that which “corresponds” to the claimed function. See, e.g., Chiuminatta, 145 F.3d at 1308-09, 46 U.S.P.Q.2d at 1756 (structure “unrelated to the recited function” disclosed in the patent is irrelevant to § 112, ¶ 6); Valmont, 983 F.2d at 1044, 25 U.S.P.Q.2d at 1455 (identifying structure referring to the claimed function). Further deconstruction or parsing is incorrect.

Rather than altering this well-worn path of the law, Chiuminatta confirms it. After determining that the structure corresponding to the “means ... for supporting the surface of the concrete” was a “skid plate” or “generally rectangular strip of metal having rounded ends between which is a flat piece,” 145 F.3d at 1307, 46 U.S.P.Q.2d at 1756, the court proceeded to analyze the differences between the skid plate and the assertedly equivalent structure in the accused device, a set of soft rubber wheels. See id. at 1309, 46 U.S.P.Q.2d at 1757. In finding “not insubstantial” differences between the wheels and skid plate, the court noted that the way the structures performed the claimed function were substantially different: while the wheels roll or rotate across the surface, the skid plate “skid[s] as the saw moves across the concrete and thus ha[s] a different impact on the concrete.” Id. At no point did the Chiuminatta court deconstruct the skid plate structure into component parts in order to analyze equivalence. Cf. Odetics VII, 14 F.Supp.2d at 814, 47 U.S.P.Q.2d at 1928 (“To prove equivalent structure, Odetics had to prove that the bin array [disclosed in the 151 patent] was equivalent to the bin array [in the accused device]; and this meant, essentially, that Odetics had to prove that the gear [disclosed in the 151 patent] was equivalent to the cam followers [in the accused device].”). Instead, Chiuminatta simply applied the well-established law of insubstantial differences to the particular structures at issue. See 145 F.3d at 1309, 46 U.S.P.Q.2d at 1756-57. The component-by-component analysis used by the district court finds no support in the law.

B

Although we have determined that the premise of the district court’s reconsidered grant of JMOL is incorrect, our inquiry is not at an end. STK argues that the grant of JMOL can be upheld on alternative grounds. We disagree.

First, STK contends that the jury’s verdict of infringement was unsupported by substantial evidence. Whether an accused device infringes a § 112, ¶ 6 claim as an equivalent is a question of fact. See C.R. Bard, Inc. v. M3 Sys., Inc., 157 F.3d 1340, 1363, 48 U.S.P.Q.2d 1225, 1241 (Fed.*1269Cir.1998) (“The determination of infringement under section 112 paragraph 6 is a factual question.”), cert. denied, - U.S. -, 119 S.Ct. 1804, 143 L.Ed.2d 1008 (1999); In re Hayes Microcomputer Prods., Inc. Patent Litig., 982 F.2d 1527, 1541, 25 U.S.P.Q.2d 1241, 1251 (Fed.Cir.1992) (“The determination of literal infringement [of a § 112, ¶ 6 claim] is a question of fact.”); Intel Corp. v. United States Int’l Trade Comm’n, 946 F.2d 821, 841, 20 U.S.P.Q.2d 1161, 1178 (Fed.Cir.1991) (same); Hartness Int’l Inc. v. Simplimatic Eng’g Co., 819 F.2d 1100, 1110, 2 U.S.P.Q.2d 1826, 1833 (Fed.Cir.1987) (‘Whether that accused device is a § 112 equivalent of the described embodiment is a question of fact.” (citation omitted)); King Instrument Corp. v. Otari Corp., 767 F.2d 853, 862, 226 U.S.P.Q. 402, 408 (Fed.Cir.1985) (same); Palumbo v. Don-Joy Co., 762 F.2d 969, 975, 226 U.S.P.Q. 5, 8 (Fed.Cir.1985) (same), overruled on other grounds by Markman, 52 F.3d at 976-79, 34 U.S.P.Q.2d at 1327-29 (Fed.Cir.1995); D.M.I., Inc. v. Deere & Co., 755 F.2d 1570, 1575, 225 U.S.P.Q. 236, 239 (Fed.Cir.1985). See also Markman, 52 F.3d at 977 n. 8, 34 U.S.P.Q.2d at 1327 n. 8 (overruling of Palumbo did not affect that case’s § 112, ¶ 6 holdings).

The grant of a motion for JMOL is permissible only when “there is no legally sufficient basis for a jury to find for [the non-moving] party.” Fed.R.Civ.P. 50(a)(1). In order to determine whether a legally sufficient basis in fact exists, “the trial court must consider all the evidence in a light most favorable to the non-mover, must draw reasonable inferences favorable to the non-mover, must not determine the credibility of witnesses, and must not substitute its choice for that of the jury.” Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 893, 221 U.S.P.Q. 669, 672 (Fed.Cir.1984). See also Verdegaal Bros., Inc. v. Union Oil Co., 814 F.2d 628, 631, 2 U.S.P.Q.2d 1051, 1052 (Fed.Cir.1987); Medtronic Inc. v. Intermedics, Inc., 799 F.2d 734, 742, 230 U.S.P.Q. 641, 646 (Fed.Cir.1986). If, after this analysis, substantial evidence, being that minimum quantum of evidence from which a jury might reasonably afford relief, exists to support the jury’s verdict, then the motion for JMOL must be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“merely colorable” or “not significantly probative” evidence insufficient); Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (“Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”); Schuylkill and Dauphin Co. v. Munson, 14 Wall. 442, 81 U.S. 442, 448, 20 L.Ed. 867 (1871) (standard is “not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed”).

STK asserts that Odetics did not present substantial evidence that the “bin array” of the accused device is equivalent to the ’151 patent’s “rotary means” claim element and corresponding structure in the specification. A review of the record, however, overwhelmingly proves otherwise. As directed by this court in Odetics II, the jury was instructed that “ ‘a rotary means rotatably mounted’ could be what is depicted in Figure 3 [of the T51 patent], less elements 52 and 54, or the equivalent. In other words, [the rotary means structure is] depicted in Figure 3, less elements 52 and 54, that figure, or the equivalent.” As we emphasized in Odetics II, the district court noted to the jury that the structure corresponding to the claimed function was “rotatable” as a result of receiving a rotary force. The “bin array” in the accused device contains a rod, bins for holding the cassettes, and pins or “cam followers” protruding from the bottom of the cassette bin. Odetics’s theory of equivalence was to point out the parallels between the claimed and accused structures, noting that rotation is accomplished in the ’151 patent by exerting force against the teeth of the gear, thereby turning the *1270bin about the rod, and that rotation is accomplished in the accused device by exerting force against the cam followers, also turning the bin about the rod. Thus Odet-ics argued to the jury that the structures were equivalent “rotary means” within the meaning of § 112, ¶ 6. To prove its case, Odeties introduced documentary and testimonial evidence of structural equivalence, including diagrams, claim charts, computer animation sequences, and the opinions of its expert, Dr. John M. McCarthy, whom the parties agree is a specialist in robotics. Dr. McCarthy specifically and clearly testified — on at least eight occasions during the trial — that the “rotary means” structure was equivalent to the “bin array” in the accused devices and why this was so. Indeed, he described the “bin array” structure in the accused devices and the rotary means structure in the ’151 patent as “nearly identical,” possible to “match directly,” “completely equivalent,” having “almost identical correspondence,” “literally equivalent,” and that they “correspond so completely, that I could match every element one-for-one.” When pressed to describe specifically why the presence of pins or cam followers in the accused devices rather than the gear depicted in the T51 patent did not affect his equivalence analysis, Dr. McCarthy first noted that “you can push on a pin as well as you can push on a gear tooth .... For this application, this is completely equivalent, pushing on these pins and pushing on these gear teeth, particularly from [the perspective of] one of ordinary skill in the art.” On cross-examination, Dr. McCarthy further explained that one could “[t]ake that gear off, put those pins on.... [The accused “bin array” structure] is completely equivalent, completely identical.”

Given the clear, consistent, and oft-repeated evidence that the “rotary means” structure in the 151 patent and the “bin array” structure in the accused devices were equivalent, the district court, announcing its initial ruling against JMOL, stated: “the jury could find infringement, as it did, based on Dr. McCarthy’s testimony of literal infringement. So STK’s motion for Judgment as a Matter of Law must be denied.” We agree. Odeties introduced substantial evidence that the rotary means and bin array structures were equivalent; a reasonable jury was therefore entitled to find infringement. See, e.g.,