at the time of infringement.” Id. Consequently, as the court explained in Grain Processing, the issue is whether the noninfringing product was an available and acceptable substitute for the patented product. Id. at 1353. Plaintiff does not dispute that the 2707 ball was available, as that term is used in applying the “but for” inquiry. Thus, the issue is whether the 2707 ball was an acceptable substitute. The issues of availability and acceptability are questions of fact, typically left for a jury to decide. Minnesota Mining & Mfg. Co. v. Johnson & Johnson Orthopaedics, Inc., 976 F.2d 1559, 1577 (Fed.Cir.1992) (“The existence of a non-infringing substitute [under the Panduit test] is a question of fact.... ”); Scripto-Tokai Corp. v. Gillette Co., 788 F.Supp. 439, 445 (C.D.Cal.1992) (<HOLDING>). The issue for the court on defendant’s motion
holding that estoppel was a question of fact holding the question of whether insurance companys requests were reasonable under policy language was a fact question holding that the question whether a cause of action exists is not a question of jurisdiction and therefore may be assumed without being decided holding it is a question of fact holding that the issue of whether acceptable noninfringing substitutes existed and were available was a question of fact to be decided at trial