The opinion of the court was delivered by: David O. Carter United States District Judge
ORDER FINDINGS OF FACT AND CONCLUSIONS OF LAW
Pursuant to Plaintiff Logiclink, Inc.'s ("Plaintiff") waiver of jury trial, the Court has conducted a five day bench trial. Defendants Keylink Service Solutions, Inc. and Robert Basulto ("Defendants") filed their trial briefs and supporting declarations on December 31, 2008. Plaintiff filed a trial brief and supporting exhibits on October 21, 2008. Both parties filed supplemental briefing, including Revised Proposed Findings of Fact and Conclusions of Law on January 12, 2009 and February 2, 2009. Having considered the submissions by the parties and all admissible evidence, the Court hereby enters its Findings of Fact and Conclusions of Law in conformity with Federal Rule of Civil Procedure 52.
1. Logiclink, Inc. ("Logiclink") is the assignee of U.S. Patent No. 5,987,498 (the "'498 Patent"), which was filed on February 16, 1996 in the United States Patent and Trademark Office (the "USPTO").
2. The '498 Patent was issued on November 16, 1999.
3. The '498 Patent was assigned to Logiclink on May 22, 2002 per a bankruptcy court order and recorded in the USPTO.
4. The '498 Patent expired on November 17, 2003 and was reinstated on August 10, 2005.
5. Kim Kao is the president of Logiclink, a Michigan corporation qualified to do business in California.
6. Defendant Robert Basulto ("Basulto") worked for Logiclink from August 27, 2003 to July 5, 2004.
7. Keylink Solutions, Inc. ("Keylink") was formed during Basulto's employment with Logiclink.
8. Keylink was incorporated on November 18, 2004.
9. Basulto conducted business with Keylink as early as July 7, 2003 and is presently the president, secretary and director of Keylink.
10. Logiclink replaces, sells and services automated business service centers, kiosk workstations and WiFi services to the hospitality industry.
11. Keylink replaces, sells and services automated business service centers, kiosk workstations and WiFi services to the hospitality industry.
12. While Basulto was working as Vice President of Logiclink he began to form Keylink in order to sell and maintain automated business centers.
13. Basulto, while employed at Logiclink, actively competed with Logiclink and diverted potential customers of Logiclink for his own personal gain.
14. Basulto diverted the following hotels in Nevada for his own personal gain: Mandalay Bay, New York New York, Treasure Island, Stratosphere, Flamingo HGVC, Flamingo Hotel, Hilton HGVC No. 2, Monte Carlo, Golden Nugget, MGM Signature, Belagio, Harrah's Lauglin, Riviera.
15. Basulto signed a Logiclink non-disclosure and confidentiality agreement on August 29, 2003. (Trial Exhibit 4).
16. Basulto signed a Logiclink dba Business Automated Center at Hotel Non-Disclosure and Confidentiality exhibit. (Trial Exhibit 5).
17. Basulto agreed not to interact or interface with any competitors or competitive companies without the express, written pre-approval of Logiclink's upper management.
18. Basulto did not receive any written pre-approval from the upper management of Logiclink to interface or interact with any competitors or competitive companies.
19. For calendar year 2005, Keylink's gross sales from its operation of automated business centers, workstations and WiFi services was $107,739.00.
20. For calendar year 2006, Keylink's gross sales from its operation of automated business centers, workstations and WiFi services was $1,002,826.00.
21. For calendar year 2007, Keylink's gross sales from its operation of automated business centers, workstations and WiFi services was $1,685,070.00.
22. From January through July of 2008, Keylink's gross sales from its operation of automated business centers, workstations and WiFi services was $1,297,958.67.
23. As an employee of Logiclink, Basulto received wages, commissions and expense reimbursements from Logiclink totaling $72,272.67.
24. On August 31, 2005, Basulto and Keylink were given notice from Logiclink that they were interfering with Logiclink's '498 Patent.
25. Keylink did not receive authorization from Logiclink to use the elements of the '498 Patent Claims.
26. Evidence has not been presented proving that Keylink is in direct control of Kiosklogix's Netstop Software.
27. The '498 Patent Claims 1, 18, 19 and 28 are independent claims.
28. The '498 Patent Claim 1 consists of the following elements:
1.A Provides a method of communication between a remote site computer and a content provider using a central server and displaying advertising at the remote site, comprising of the steps of:
1.B Initiates a log on session at the remote site computer;
1.C Collects identification information from a user at the remote site computer;
1.D Communicates the user identification information from the remote site computer to the central server;
1.E Retrieves user configuration information from the central server to the remote site computer, based on the user identification information;
1.F The central server communicates with said content provider based on the user identification information and the user configuration information;
1.G Terminates the log-on session;
1.H Displays the session charge information and said advertising on said remote site computer;
29. Keylink does not practice elements 1.D, 1.E or 1.F of Claim 1 (as explained below).
30. The '498 Patent Claim 18 consists of the following elements:
18.A Provides a method of operating a server computer of a network, to which are connected a plurality of computer terminals. The method comprises the steps of:
18.B Receiving a first set of user information at the control computer from a first user at one of the computer terminals sufficient to identify a user account to be debited for billing purposes;
18.C Verifying the first set of user information for authorization and beginning a network log-on session by the first user;
18.D Retrieving a second set of user information from a storage device in communication with the server computer, the second set of user information including user account information from the first user;
18.E Establishing communication between the first user computer and one or more network service providers in accordance with information selected from a group including the first set of user ...