60 F.Supp.2d 111 (1999)
FUJI MACHINE MANUFACTURING CO., LTD., Plaintiff,
v.
HOVER-DAVIS, INC., et al., Defendants.
No. 96-CV-6087L.
United States District Court, W.D. New York.
August 23, 1999.
*112 Henry R. Ippolito, Chamberlain, D'Amanda, Oppenheimer & Greenfield, Rochester, NY, James A. Oliff, Darle M. Short, Glenn T. Barrett, Edward P. Walker, David C. Gardiner, Oliff & Berridge, Alexandria, VA, for Fuji Machine Manufacturing Co., Ltd., plaintiff.
James Metzler, Boylan, Brown, Code, Fowler, Vigdor & Wilson, LLP, Rochester, NY, for defendants.

DECISION AND ORDER
LARIMER, Chief Judge.
This is a patent infringement action. Plaintiff, Fuji Machine Manufacturing Co., Ltd. ("Fuji"), commenced this action pursuant to 35 U.S.C. §§ 271 and 281 against Hover-Davis, Inc. ("Hover-Davis"), alleging that HD has infringed Patent No. 4,740,136 ("the '136 patent"), which is held by Fuji. Several motions are now pending before the court. Fuji has filed a motion for summary judgment in its favor on the issue of infringement, and a separate motion for summary judgment seeking dismissal of Hover-Davis's repair defense and its implied-license defense. Hover-Davis has also moved for summary judgment and for attorney's fees.

FACTUAL BACKGROUND
The '136 patent is directed to tape feeders for chip placement machines. These machines produce circuit boards by removing electronic components, or chips, from their packaging and placing them on blank circuit boards. The chips come packaged in "carrier tapes," which have pockets on them containing the individual chips. A strip of film on the outside of the carrier tape holds the chips in place. Each tape is wound on a reel, and may contain hundreds or thousands of chips.
Each chip placement machine contains a number of tape feeders. Each feeder unwinds a single carrier tape reel, removes the cover film to expose the pockets containing the chips, and positions the exposed pockets under suction members of the chip placement machine. The suction members then pick the components out of the carrier tapes and place them in the proper locations on the blank circuit boards.
The '136 patent includes apparatus claims 9-12 and method claims 1-8 (4-6 of which are not relevant to this case). The apparatus claims relate to an apparatus for removing electronic components from carrier tapes, specifically, the tape feeder described in the '136 patent in combination with a suction member of a chip placement machine (neither the tape feeder, the suction member, nor the chip placement machine is separately patented). The method claims describe how this combination is used to remove the components from the carrier tapes.
Both Fuji and Hover-Davis manufacture tape feeders that are designed to be used in conjunction with certain Fuji chip placement machines. Fuji's products are called "CP" tape feeders and chip placement machines, and Hover-Davis's tape feeders are named "HDF" tape feeders. Fuji alleges that by selling the HDF tape feeders, Hover-Davis is infringing the '136 patent in a number of ways. First, Fuji alleges, the *113 sale of and offers to sell the HDF feeders are acts of contributory infringement under 35 U.S.C. § 271(c) because the HDF tape feeders are: (1) a component of a patented combination, i.e. the tape feeder and a suction member as defined by claims 9-12; (2) a material apparatus used to practice a patented process, i.e., the method of using a tape feeder and suction member described in claims 1, 2, 3, 7 and 8; (3) a material part of the patented combination and process; and (4) not a staple article or commodity of commerce suitable for substantial noninfringing use, because the HDF feeders can only be used on a Fuji CP chip placement machine. Fuji also alleges that Hover-Davis has induced others to infringe claims of the '136 patent through its sale, promotion, marketing, maintenance and service of the HDF tape feeders, in violation of 35 U.S.C. § 271(b).

DISCUSSION

I. Laches/Equitable Estoppel
Two of the primary bases for Hover-Davis's motion for summary judgment dismissing Fuji's complaint are its assertions that Fuji should be barred from bringing this action both by reason of laches and by the principle of equitable estoppel. According to Hover-Davis, Fuji waited an inordinately long time to commence this action, and in fact affirmatively led Hover-Davis to believe that Fuji did not consider Hover-Davis's manufacture and sale of its HDF tape feeders to violate the '136 patent.

Factual Contentions
Hover-Davis alleges that Fuji became aware of Hover-Davis's intentions to sell tape feeders compatible with Fuji chip placement machines as early as 1991, but it took no steps to enforce its patent until late 1995. Hover-Davis and Fuji had had some prior contacts, dating back to about early 1990, relating to Hover-Davis's development of "C-PAK" conversion kits, which were designed to modify tape feeders to accomodate a different type of carrier tape than had been used previously (the C-PAK products are not at issue in this lawsuit). Apparently Fuji had cooperated with Hover-Davis to some extent in the design of the C-PAK conversions, which presumably enhanced the usefulness, and therefore the marketability, of Fuji's machines.
In a letter dated March 3, 1991, Hover advised Iwao Yamaguchi, who was then the president of Fuji America, that Hover-Davis had "introduced a feeder that is compatible with the [Fuji] CP series machine," and that Hover "would like the opportunity to discuss the option of marketing this feeder through Fuji America." John D. Hover Affidavit (Item 54) Ex. I. Hover and Yamaguchi apparently met on April 8, 1991, for in a letter dated April 12, 1991, referencing that meeting, Hover stated that Hover-Davis had "decided that it is our preference to continue to market a HOVER-DAVIS feeder product." Id. Ex. J. Hover said that because Hover-Davis has "spent two years and considerable expense in developing" its feeder, "it is the opinion of HOVER-DAVIS that no monetary compensation should be forthcoming related to copying the Fuji design. However, we would agree to negotiate a level of monetary compensation for the cooperation in future development of feeders for the [Fuji] machines. The level of compensation would be tied to HOVER-DAVIS [Fuji-] compatible feeder sales only and directly related to the level of cooperation agreed upon." Id. Hover added that Hover-Davis "would also like to explore the possibility of marketing our feeders through the Fuji manufacturing rep groups already established." Id.
At some point in this process, Yamaguchi advised Hover of the existence of the '136 patent. Hover then contacted Howard Greenwald, Esq., an attorney who had done a patent infringement search for Hover in October 1989, when Hover was first considering developing a Fuji-compatible tape feeder. Greenwald's prior report noted the '136 patent, but concluded, without *114 extensive discussion, that Hover-Davis's "manufacture or sale of your device would not infringe any of the claims of this patent," and that a "customer's reconstruction and/or use of a modified Fuji CP-II machine also would not infringe the claims of this patent." Id. Ex. D.
After Hover relayed to Greenwald Yamaguchi's reference to the '136 patent, Greenwald undertook a more extensive study, but again concluded (for reasons that are of little importance insofar as the estoppel/laches issues are concerned) that "Hover-Davis Inc.'s manufacture and sale of its tape feeder does not infringe either the process or the apparatus claims of United States patent 4,740,136." Id. Ex. M.
Hover alleges that he informed Yamaguchi of Greenwald's conclusion, and that Yamaguchi agreed that Hover-Davis was not infringing the '136 patent, and that there was "no problem" with Hover-Davis's manufacture of tape feeders. Id. ¶ 32.
Hover also alleges that "Fuji continued to seriously entertain Hover-Davis' proposal for the manufacture of tape feeders," id. ¶ 34, and that throughout this time, Fuji never raised any further objections or concerns about possible patent infringement. Had Fuji done so, he claims, Hover-Davis, which at that time was little more than a "mom and pop" operation with very little money, would simply have attempted to pursue the manufacture of tape feeders for other companies' machines, rather than get involved in a possible legal battle with Fuji. Since Fuji apparently did not object to Hover-Davis's plans, however, Hover-Davis seriously committed its resources to going ahead with the Fuji-compatible machines.
Hover states that at Fuji's request, he sent Fuji two sample Hover-Davis tape feeders for Fuji's evaluation in 1991. In December 1991, Hover traveled to Japan to meet with Fuji executives concerning the C-PAK project, and he alleges that no one from Fuji expressed any concerns about the Hover-Davis tape feeders.
The parties agree that Fuji never gave Hover-Davis an express response concerning Hover's proposal to sell Hover-Davis tape feeders through Fuji. In early 1992, therefore, Hover decided to go ahead with the manufacture and sale of the feeders independently. Fuji allegedly did not object to Hover-Davis's sale of its feeders initially.
According to Hover, the first sign of trouble in this regard came in December 1993, when he wrote to Yamaguchi after Hover had learned from some of Hover-Davis's customers that Fuji representatives had been disparaging Hover-Davis's tape feeders and telling them that their use of Hover-Davis feeders might void the warranty on their Fuji machines. By letter dated December 17, 1993, Hover wrote to Yamaguchi asking him to "document[ ] the position of Fuji America relative to HOVER-DAVIS, INC. products." Id. Ex. T. The letter did not specifically refer to patent issues. Yamaguchi responded in a letter dated December 20, 1991 that "Fuji-built equipment with third-party accessories or parts may lose Fuji's warranty coverage for malfunctioning and/or damage that has been found attributable to the use of such parts or accessories, even if the rest of the machine or its functioning remain under warranty." Id. Ex. U.
Hover states that Fuji said nothing further about patent infringement by Hover-Davis until December 1995, when Fuji's attorney sent Hover-Davis a cease-and-desist letter demanding that Hover-Davis stop marketing its Fuji-compatible tape feeders by December 31, 1995. Id. Ex. X. By then, Hover states, Hover-Davis, having relied on Fuji's seeming acquiescence in Hover-Davis's manufacture and sale of the HDF tape feeders, had fully committed itself to the HDF tape feeder business.

Legal Analysis of Laches and Equitable Estoppel Defenses
The Court of Appeals for the Federal Circuit has held that the defenses of *115 laches and equitable estoppel are both applicable in patent infringement actions. These defenses, while similar in some respects, have distinct elements and operate in different ways.
A defendant asserting laches must prove that:
1. the plaintiff delayed filing suit for an unreasonable and inexcusable length of time from the time the plaintiff knew or reasonably should have known of its claim against the defendant; and
2. the delay operated to the prejudice or injury of the defendant.
A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1032 (Fed.Cir. 1992). The Federal Circuit has held, however, that "laches bars relief on a patentee's claim only with respect to damages accrued prior to suit," and does not bar recovery altogether. Id. at 1041.
The court in Aukerman also set forth the elements of equitable estoppel as that doctrine applies to patent cases. First, the court said, the patentee must, through its actions or inaction, have misleadingly communicated to the accused infringer that the patentee did not intend to press an infringement claim. Second, the accused infringer must show that it detrimentally relied on the misleading action of the patentee. Finally, the accused infringer must show that it would be materially prejudiced if the patentee were permitted to proceed. Id. at 1042-43. Unlike laches, "[w]here equitable estoppel is established, all relief on a claim may be barred." Id. at 1041.
Applying these principles to the case at bar, I find that there are issues of fact surrounding both these defenses that preclude summary judgment. As with many other aspects of this case, the parties are in sharp disagreement about many of the relevant events.
It is clear that the existence of factual issues will bar summary judgment with respect to the defenses of laches and equitable estoppel. Because "[b]oth defenses ultimately turn on underlying factual determinations, ... [s]ummary judgment ... is appropriate only when there is no genuine issue of material fact and when the movant is entitled to judgment as a matter of law." Hemstreet v. Computer Entry Systems Corp., 972 F.2d 1290, 1292 (Fed. Cir.1992). See, e.g., Advanced Cardiovascular Systems, Inc. v. Scimed Life Systems, Inc., 988 F.2d 1157, 1164 (Fed.Cir. 1993) (there was clear dispute as to factual questions material to laches, and district court therefore erred in granting summary judgment dismissing cross-complaint); Accuscan, Inc. v. Xerox Corp., No. 96 Civ. 2579, 1998 WL 60991, at *5 (S.D.N.Y. Feb. 11, 1998) (viewing evidence in light most favorable to plaintiff, court found that plaintiff had met its burden of coming forward with evidence to raise genuine factual issue respecting reasonableness of its conduct in waiting several years before filing suit); R2 Med. Systems, Inc. v. Katecho, Inc., 931 F.Supp. 1397, 1412 (N.D.Ill. 1996) (denying defendant's motion for summary judgment based on laches where issue of fact remained as to whether defendant suffered material prejudice as result of delay by plaintiff in filing suit); James River Corp. of Virginia v. Hallmark Cards, Inc., 915 F.Supp. 968, 980-84 (E.D.Wisc.1996) (defendant had not carried its burden of showing that there were no genuine issues of material fact as to its laches and equitable estoppel defenses).
In the case at bar, defendant alleges that Fuji not only failed to assert its patent rights but affirmatively indicated to Hover-Davis that Fuji had no objection with Hover-Davis selling its tape feeders. Plaintiff, on the other hand, denies ever making any such representation to Hover-Davis. In particular, plaintiff denies that Yamaguchi ever told Hover that there was "no problem" with Hover-Davis selling Fuji-compatible feeders. Yamaguchi himself denies even having any opinion on the subject of infringement because that is a technical matter outside of his area of expertise. See Yamaguchi Declaration, *116 Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment Ex. 5, ¶ 6.
In addition, Fuji contends that it simply met Hover-Davis's repeated proposals to enter into some sort of joint venture to sell Hover-Davis's tape feeders with complete silence. Although "equitable estoppel may in some instances be based upon a misleading silence, mere silence must be accompanied by some other factor which indicates that the silence was sufficiently misleading as to amount to bad faith." Hemstreet, 972 F.2d at 1295. For instance, the patentee may threaten immediate enforcement of its patent rights, but then do nothing for a long period of time, leading the accused infringer to believe that the patentee had merely made an idle threat. Hottel Corp. v. Seaman Corp., 833 F.2d 1570, 1574 (Fed.Cir.1987).
The evidence presented by Hover-Davis on these issues may be determined by the fact-finder to be more than mere silence but, as the case now stands, the proof is hardly conclusive. It is clear that "on summary judgment, such inference [that the patentee does not intend to bring an infringement claim] must be the `only possible inference from the evidence.'" James River, 915 F.Supp. at 981 (quoting Aukerman, 960 F.2d at 1043-44).
There are also factual issues relating to Hover-Davis's reliance on Fuji's alleged representations, and to whether Hover-Davis has suffered any prejudice as a result. Hover-Davis contends that it devoted substantial money and other resources in developing its HDF tape feeders in reliance on Fuji's alleged indication that it did not believe Hover-Davis to be infringing the '136 patent. Hover-Davis argues that it would simply have abandoned its efforts to produce Fuji-compatible tape feeders had Fuji raised the patent infringement issue earlier, and that it is now prejudiced because it has already committed itself to the HDF line of products.
Although economic loss is one type of prejudice that can support an equitable estoppel or laches defense, see James River, 915 F.Supp. at 978, it is not enough simply to show that the alleged infringer changed its economic position somewhere along the line, or that it may suffer some economic harm if the plaintiff is allowed to proceed with its patent infringement suit. More is required. For purposes of laches, the defendant must also show that its change of position was occasioned by the plaintiff's delay in commencing suit. Id. To establish equitable estoppel, the defendant must also show that it took some action in reliance on the patentee's allegedly misleading communications. Id. at 982.
In the case at bar, Fuji contends that Hover-Davis's decision to market its HDF tape feeders was based not upon anything that Fuji did or did not do, but upon the opinion of Fuji's attorney that the HDF feeders did not infringe any of Fuji's patents. According to Fuji, then, Hover-Davis simply made a business decision that had nothing to do directly with Fuji itself.
If in fact Hover-Davis's decisions were made without any reliance at all on the representations or inaction of Fuji, Hover-Davis could establish neither a laches nor an estoppel defense. With respect to laches, the defendant's change of position "must be because of and as a result of the [patentee's] delay, not simply a business decision to capitalize on a market opportunity." Hemstreet, 972 F.2d at 1294. Similarly, to establish estoppel, the defendant must prove that its actions were taken "in reliance upon supposed actions of [the patentee] rather than a business judgment of its own  a judgment which subsequent events may well prove to have been faulty." Id. at 1294-95 (footnote omitted). Likewise, while reliance on advice of counsel does not necessarily preclude a finding that the accused infringer also relied detrimentally on the patentee's representations, see Wafer Shave, Inc. v. Gillette Co., 857 F.Supp. 112, 123 (D.Mass.1993), aff'd, 26 F.3d 140 (Fed.Cir.1994), it at least raises an issue of fact as to reliance. See THK *117 America, Inc. v. NSK Co. Ltd., 157 F.R.D. 637, 649 (N.D.Ill.1993) ("If defendants instead relied on favorable opinions from patent counsel, detrimental reliance may be absent"); Symbol Technologies, Inc. v. Metrologic Instruments, Inc., 771 F.Supp. 1390, 1399 (D.N.J.1991) ("Defendants' own brief ... raises an issue as to whether they relied more on the advice of their own patent counsel than on Symbol's conduct").
Certainly some of Hover-Davis's allegations concerning Fuji's reactions (or lack thereof) to Hover-Davis's development of the HDF tape feeders, if true, are troubling. If Yamaguchi in fact told Hover that there was "no problem" as far as Fuji was concerned, or if Fuji sat on its rights initially, either because it thought that a joint venture might work to Fuji's advantage or because it simply viewed Hover-Davis as too small an operation to present much of a threat to Fuji, and it only raised the patent issue when the joint venture failed to materialize or when Hover-Davis began cutting into Fuji's sales, Hover-Davis may well be able to establish its laches and equitable estoppel defenses.
At this stage, however, on the record before me, these factual issues remain unresolved. Moreover, there are also issues about Hover-Davis's conduct, particularly whether it acted in reliance on Fuji's statements. Keeping in mind that on this motion for summary judgment I must view the record in the light most favorable to Fuji, the nonmoving party, I therefore conclude that there are issues of fact relating both to laches and equitable estoppel. Defendant's motion for summary judgment on these defenses is therefore denied.[1]

II. Direct Infringement
Both parties contend that they are entitled to summary judgment with respect to the issue of infringement. The central issue here is whether the record conclusively shows either the presence or absence of direct infringement of the '136 patent. Both sides agree that without direct infringement by someone, Fuji cannot prevail on its claims for inducement of infringement and contributory infringement against Hover-Davis. Hover-Davis contends that Fuji's claims must fail because there is no evidence here that direct infringement has occurred. Fuji asserts precisely the opposite: that the record unequivocally establishes direct infringement.
A patent can be infringed in three ways: direct infringement, inducement of infringement, and contributory infringement. Direct infringement occurs whenever someone "without authority makes, uses, offers to sell, or sells any patented invention." 35 U.S.C. § 271(a). Inducement of infringement occurs whenever someone "actively induces infringement of a patent." 35 U.S.C. § 271(b). Contributory infringement occurs whenever someone "offers to sell or sells ... a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use." 35 U.S.C. § 271(c).
Here, Fuji does not attempt to state a claim for direct patent infringement against Hover-Davis, but instead asserts *118 claims for inducement of infringement and contributory infringement. It is well established that in order for a plaintiff to prevail on either of these theories, direct infringement must be proved. See Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U.S. 336, 341, 81 S.Ct. 599, 5 L.Ed.2d 592 (1961); Kendall Co. v. Progressive Med. Tech., Inc., 85 F.3d 1570, 1573 (Fed.Cir.1996); Joy Technologies, Inc. v. Flakt, Inc., 6 F.3d 770, 774 (Fed. Cir.1993); C.R. Bard, Inc. v. Advanced Cardiovascular Sys., Inc., 911 F.2d 670, 673 (Fed.Cir.1990); Moleculon Research Corp. v. CBS, Inc., 872 F.2d 407, 410 (Fed. Cir.1989); Met-Coil Sys. Corp. v. Korners Unlimited, Inc., 803 F.2d 684, 687 (Fed. Cir.1986); Fuji Mach. Mfg. Co., Ltd. v. Hover-Davis, Inc., 936 F.Supp. 93, 94-95 (W.D.N.Y.1996).
Fuji alleges that purchasers of HDF tape feeders directly infringe claims 1-3 and 7-12 of the '136 patent when they install and operate the tape feeders on a Fuji chip placement machine. Fuji maintains that the combination of an HDF tape feeder and the suction member of CP machine includes all of the elements of apparatus claims 9-12, and, when this combination is operated, all of the steps of claims 1, 2, 3, 7 and 8.
Hover-Davis contends that there is no direct infringement here, for several reasons. First, Hover-Davis states that under the "patent exhaustion" doctrine, Fuji, by selling its chip placement machines without any restrictions placed on their use, ceased to have any rights with respect to the manner in which its customers use the machines after the sale was completed. See Intel Corp. v. ULSI System Technology, Inc., 995 F.2d 1566, 1568 (Fed.Cir. 1993), cert. denied, 510 U.S. 1092, 114 S.Ct. 923, 127 L.Ed.2d 216 (1994). Hover-Davis also contends that as a matter of law, Fuji has granted its customers an implied license to practice the patented process and to use the claimed apparatus that are covered by the '136 patent. See Met-Coil Systems Corp. v. Korners Unlimited, Inc., 803 F.2d 684 (Fed.Cir.1986). In addition, Hover-Davis states that Fuji's customers' replacement of worn-out Fuji tape feeders with HDF feeders is permissible by virtue of their right to repair their machines. See Aro, 365 U.S. at 346.
Although the parties in this case have addressed these doctrines  patent exhaustion, implied license, and the right to repair  as separate issues, they are closely related. For example, the Court of Appeals for the Federal Circuit, discussing the patent exhaustion rule that "`an authorized sale of a patented product places that product beyond the reach of the patent,'" McCoy v. Mitsuboshi Cutlery, Inc., 67 F.3d 917, 921 (Fed.Cir.1995) (quoting Intel, 995 F.2d at 1568), cert. denied, 516 U.S. 1174, 116 S.Ct. 1268, 134 L.Ed.2d 215 (1996), in the next sentence stated that "[u]nder this implied license, a patent holder receives a reward for inventive work in the first sale of the patented product," after which the patentee ceases to have any interest in the product. McCoy, 67 F.3d at 921 (emphasis added). Similarly, the court has stated that a buyer's implied license to use a patented device includes the right to repair the device, but not the authority to make a new device or to reconstruct one which has been spent. Hewlett-Packard Co. v. Repeat-O-Type Stencil Mfg. Corp., 123 F.3d 1445, 1451 (Fed.Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1304, 140 L.Ed.2d 470 (1998).
Because of the interrelatedness of these issues, their resolution to a great extent turns on the same questions of fact. Ultimately what is at issue in this case is the nature and extent of Fuji's customers' right to modify their CP machines, and whether their use of HDF tape feeders falls within the scope of that right. In particular, the crucial question is whether the replacement of CP feeders with HDF feeders constitutes a permissible repair or an impermissible reconstruction.
"The authority to use and sell a purchased device ... does not include the right to make a new device or to reconstruct *119 one which has been spent." Hewlett-Packard, 123 F.3d at 1451. The Supreme Court, however, has taken a narrow view of what constitutes a reconstruction as opposed to a permissible repair. "[R]econstruction of a patented entity, comprised of unpatented elements, is limited to such a true reconstruction of the entity as to `in fact make a new article,' after the entity, viewed as a whole, has become spent." Aro, 365 U.S. at 346, 81 S.Ct. 599. Therefore, "[m]ere replacement of individual unpatented parts, one at a time, whether of the same part repeatedly or different parts successively, is no more than the lawful right of the owner to repair his property." Id.
Fuji contends that its customers' use of HDF tape feeders to replace Fuji CP tape feeders is not a repair because the removed CP tape feeders are not worn out, broken or spent. Rather, Fuji asserts, CP feeders are removed for purposes of operational efficiency. For example, according to Fuji, different types of circuit boards require the use of different components. Therefore, when a circuit board maker wants to switch from manufacturing one type of circuit board to another, rather than changing the reels of carrier tape on the tape feeder, the entire tape feeder is replaced, because it is faster and therefore more efficient to do so. Similarly, Fuji claims, when a carrier tape on a tape feeder runs out of chips, the entire tape feeder is usually removed and another feeder is attached to the CP machine, because the feeders snap on to the machine easily, whereas changing the reel of carrier tape is a more elaborate procedure.
Although Fuji makes a number of assertions about how and why its customers replace Fuji tape feeders with Hover-Davis tape feeders, I am not convinced that a finder of fact could not reasonably conclude otherwise. For example, Fuji's contention that Fuji tape feeders are not removed because they are worn out, broken or spent, but for the efficiency's sake, is neither self-evident nor the only conclusion that could reasonably be drawn from the evidence. In support of this assertion, Fuji has submitted a declaration of its expert witness, Ray Rua. Rua makes this same assertion about tape feeders being replaced for purposes of efficiency, but he does not state the basis for his knowledge of this matter. Although Rua clearly has an extensive background in dealing with the technology involved in this case, particularly with respect to matters pertaining to design and the development and implementation of new methods, it is not evident that he has such an extensive, personal knowledge of how customers actually utilize the machines, and specifically when and why they replace tape feeders, that his assertions in this regard could not be challenged, or that a reasonable finder of fact could not reject them.
Likewise, Rua states that when a tape feeder becomes nonfunctional, the user does not replace the entire feeder, but simply replaces the individual part that is causing the problem. At his deposition, Rua indicated that he dealt with owners of Fuji chip placement machines, and that based on his experience, they would replace individual, nonworking parts rather than entire tape feeders. Hover-Davis's expert, Bradley J. Foster, asserts otherwise, however, stating that Hover-Davis feeders "are used to replace Fuji feeders which are worn-out, damaged or which require excessive maintenance in their production practices." Report of Defendant's Technical Expert (Item 50) at 4. He states that he makes this statement based on his direct experience with the operation and maintenance of Fuji placement machines and of Fuji and Hover-Davis tape feeders. He also testified at his deposition that while he was employed at Harris Corporation during the early 1990s, it was his experience that Hover-Davis tape feeders were used to replace worn-out or damaged Fuji tape feeders. Bradley J. Foster Affidavit, sworn to Sept. 11, 1998, Attachment B at 89-101.
*120 These matters also relate to one of the elements of plaintiff's claim for contributory infringement: whether the allegedly infringing product is "suitable for substantial noninfringing use." 35 U.S.C. § 271(c). Arguably, using the Hover-Davis feeders to replace broken Fuji feeders could be considered a legitimate repair, and hence a substantial noninfringing use. Since the two sides differ over how Hover-Davis's feeders are used, however, this too presents an issue of fact to be determined at trial. See Hodosh v. Block Drug Co., Inc., 833 F.2d 1575, 1579 n. 12 (Fed.Cir.1987) (whether defendant's product had substantial noninfringing use raised fact question to be determined on remand), cert. denied, 485 U.S. 1007, 108 S.Ct. 1472, 99 L.Ed.2d 701 (1988)
The parties' experts also disagree about the extent to which the use of a Hover-Davis tape feeder with a Fuji chip placement machine includes the elements of the '136 patent. Rusa contends that the combination of a Hover-Davis tape feeder and the suction member of a Fuji CP machine includes elements 1-3 and 7-12 of the patent. Foster, however, contends that some of the claimed elements are not present in the HDF feeder, such as a driving device, a suction member, and the combination of a notch, nozzle and chip. Foster Report (Docket Item 50) at 2-4. Foster's descriptions of how the feeders are designed and how they operate are at odds with Rusa's, and their credibility is therefore a factor that may be taken into account in determining where the truth lies. Such credibility determinations, however, are properly left for the trier of fact based on the experts' live testimony at trial, and should not be made by the court on a motion for summary judgment. See Allied Colloids Inc. v. American Cyanamid Co., 64 F.3d 1570, 1575 (Fed.Cir.1995) ("Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict") (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Manchak v. N-Viro Energy Systems, Ltd., 876 F.Supp. 1123, 1129 (C.D.Cal.1994); Mahurkar v. C.R. Bard, Inc., No. 92 C 4803, 1993 WL 259446 *7-8 (N.D.Ill. July 6, 1993); Leading Edge Tech. Corp. v. Sun Automation, Inc., No. Civ. H-90-2316, 1991 WL 398682 *12 (D.Md. Sept.24, 1991)).[2]
In short, the relevant facts here are in dispute in a number of areas. Faced with conflicting factual allegations and expert opinions, it is not the role of this court to resolve these issues on a motion for summary judgment. Both parties' motions for summary judgment are therefore denied.

CONCLUSION
Plaintiff Fuji Machine Manufacturing Co., Ltd.'s motions for summary judgment *121 on infringement (Item 52) and for summary judgment on defendant's repair and implied-license defenses (Item 53) are denied.
Defendant Hover-Davis, Inc.'s motion for summary judgment and for attorney's fees (Item 55) is denied.
IT IS SO ORDERED.
NOTES
[1]  Hover-Davis also argues that it is entitled to summary judgment because Fuji's encouragement of Hover-Davis's development and manufacture of the HDF tape feeders precludes Fuji from having a good-faith basis to prosecute its patent infringement claim. Hover-Davis has not cited any authority for this argument, however, and since it is to a great extent based upon the same facts underlying Hover-Davis's laches and estoppel defenses, I deny Hover-Davis's motion for summary judgment on that ground for the reasons discussed with respect to those two defenses.

I also note that defendant has moved for attorney's fees. Since that motion is contingent upon the court granting Hover-Davis's motion for summary judgment, the motion for attorney's fees is denied.
[2]  Although not directly before me on the present motions, I note that Hover-Davis has asserted several antitrust counterclaims under the Sherman Act. There are circumstances in which a manufacturer's actions that force customers to buy replacement parts or other components only from itself can give rise to an antitrust violation. See, e.g., C.R. Bard, Inc. v. M3 Systems, Inc., 157 F.3d 1340, 1382-83 (Fed.Cir.1998) (upholding jury verdict finding antitrust violation by plaintiff, which had modified its product to prevent its competitors' components from being used with product), cert. denied, ___ U.S. ___, 119 S.Ct. 1804, 143 L.Ed.2d 1008 (1999); Raybestos Products Co. v. Coni-Seal, Inc., 989 F.Supp. 166, 168-69 (D.Conn.1997) (denying motion to dismiss Sherman Act counterclaim brought by manufacturer of automotive parts specifically designed as replacement parts for original parts manufactured by plaintiff). See also Eastman Kodak Co. v. Image Tech. Services, Inc., 504 U.S. 451, 480-86, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (affirming reversal of summary judgment in favor of defendant/petitioner on Sherman Act claim alleging that defendant had attempted to monopolize service and parts markets in violation of Sherman Act, by making it difficult for anyone but itself to compete with defendant in servicing its equipment). Although I do not express any opinion at this point as to the merits of these counterclaims, I believe that their existence, and their relatedness to the patent claims here, further counsel against the entry of summary judgment in Fuji's favor.


522 F.Supp. 1192 (1981)
Anthony C. DIMINNIE, Plaintiff,
v.
UNITED STATES of America, Daniel Patterson, Jack Calvert, David Edmisten, and Robert Rodemeyer, Defendants.
Civ. A. No. 78-71535.
United States District Court, E. D. Michigan, S. D.
October 5, 1981.
*1193 Doherty & Thomas, P.C. by Philip J. Doherty, Royal Oak, Mich., for plaintiff.
James K. Robinson, U. S. Atty. by Michele Coleman Mayes, Asst. U. S. Atty., Detroit, Mich., for defendant U. S.
David Riebel, Columbus, Ohio, for defendant Patterson.

OPINION
GILMORE, District Judge.
In this action, plaintiff seeks damages from the United States and Daniel Patterson because of a wrongful arrest, trial and conviction.[1] The matter is before the Court upon plaintiff's motion for leave to file amended pleadings, defendant Patterson's motion for judgment on the pleadings, defendant Patterson's motion for summary judgment, defendant United States' motion for judgment on the pleadings, or, in the alternative, summary judgment, and plaintiff's motion for summary judgment on the issue of liability alone.
Between February 6, 1973 and February 9, 1973, the Detroit office of the Federal *1194 Bureau of Alcohol, Tobacco and Firearms (A.T.F.) received two extortion letters and two phone calls threatening to blow up Federal Buildings and/or aircraft at Metropolitan Airport unless $1,000,000 was paid. The extortion letters were typewritten and the envelopes were handwritten. The A.T.F. and the F.B.I. launched an investigation which focused on plaintiff Anthony Diminnie.
Pursuant to search warrants, A.T.F. agents seized two samples of Diminnie's handwriting, and a third sample was seized pursuant to a Federal Grand Jury's subpoena. Jack Calvert, a handwriting analyst, examined all the exemplars and concluded that Mr. Diminnie had addressed the envelopes containing the extortion letters. Based on these findings, Diminnie was indicted on two counts of violating 18 U.S.C. §§ 844(a), 844(j), 232(5), and 876. Diminnie was arrested on June 12, 1973, and arraigned on the charges in the indictment. He went to trial in United States District Court on May 4, 1974; the trial ended in a hung jury. A second trial commenced on or about March 27, 1975, and Diminnie was found guilty by a jury on April 4, 1975. Before Diminnie was sentenced, Defendant Patterson, a special agent with the A.T.F., confessed to having authored the letters.[2] An examination of Patterson's handwriting confirmed that he had authored the documents, and on July 14, 1975 Judge Churchill of this Court dismissed the indictment against Diminnie.
On June 15, 1977, Diminnie filed a claim with the A.T.F. pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. This claim was finally rejected by the A.T.F. on September 22, 1978. Plaintiff filed suit in this court on June 21, 1978. Plaintiff's first amended complaint was filed on March 8, 1979. Federal jurisdiction was based on the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq. Plaintiff also claimed he was deprived of his Fourth, Fifth, Sixth, and Eighth Amendment rights as a result of the actions of the defendants. The complaint alleged that each defendant was liable in tort for trespass, invasion of privacy, libel and slander, assault and battery, false imprisonment, abuse of process, malicious prosecution, interference with contract rights, intentional infliction of emotional distress, and negligence.
For reasons set forth below, the Court concludes that the motions for summary judgment of both defendant United States and defendant Patterson must be granted and the case dismissed.

I
The plaintiff has failed to state a cause of action against Patterson, because Patterson simply had nothing to do with the prosecution of the plaintiff, except to carry the extortion letters from Detroit to Lansing for examination. He did not participate in the arrest, trial, or investigation of plaintiff.
Nevertheless, plaintiff claims Patterson is liable because of his role as a perpetrator of the crime, coupled with his duty as a law enforcement officer. Plaintiff sets forth two theories upon which Patterson's liability could rest. First, he alleges that Patterson, by committing the crime, was the proximate cause of plaintiff's prosecution. Second, he argues that Patterson's duty as a law enforcement officer with the A.T.F. required him to arrest either himself or his accomplice for the extortion attempt.
The claims asserted by plaintiff bear closest analogy to the tort of malicious prosecution. To maintain a successful malicious prosecution claim, a plaintiff must prove four elements: 1) the institution or continuation of judicial proceedings by or at the instance of the defendant; 2) a termination of the proceedings in plaintiff's favor; 3) malice on the part of the defendant; and 4) lack of probable cause. Rivers v. Ex-Cell-O-Corp., 100 Mich.App. 824, 300 N.W.2d 420 (1980); Prosser, Law of Torts *1195 835 (4th ed. 1971). In general, a defendant is not liable for malicious prosecution unless he takes some affirmative action towards initiating judicial proceedings. Mere knowledge of the acts of another who causes the prosecution is not sufficient to sustain liability.
This case does not present a traditional malicious prosecution claim. The rule noted above is intended to protect citizens who innocently give information which leads to an official investigation and prosecution. Here defendant committed a crime knowing that an official investigation would likely result. It is difficult to ascertain any public policy which would protect Patterson's actions; thus, arguably, his actions can be viewed as the proximate cause of maliciously setting the legal process into motion.
However, the plaintiff in a malicious prosecution action must do more than show that the defendant was responsible for instigating the judicial proceedings. An action for malicious prosecution requires a showing that process was employed without probable cause. Under Michigan law, a conviction is conclusive proof of probable cause, unless procured by false or fraudulent means. This is true even if the conviction is later set aside. Moore v. Michigan National Bank, 368 Mich. 71, 117 N.W.2d 105 (1962). Here plaintiff was indicted, tried, and convicted for the extortion attempt. There is no claim that Patterson gave false testimony at the trial. In fact, Patterson did not participate in the trial in any way.
Nevertheless, plaintiff argues that Patterson's participation in the extortion attempt qualifies as the kind of fraud which would abrogate the finding of probable cause. However, this is not the type of unlawful procurement of a verdict that will support a malicious prosecution claim. Clearly there was probable cause for the prosecution. Regardless of whether Patterson's actions as the perpetrator of the crime are viewed as "instituting" or "instigating" the criminal proceedings, plaintiff has failed to prove the necessary elements of a malicious prosecution action.
Plaintiff's second theory raises some troublesome questions. He argues that Patterson is liable for plaintiff's prosecution because he breached his duty as a law enforcement officer by failing to arrest himself or his accomplice for the extortion attempt. In effect, plaintiff is arguing that Patterson had a duty to come forward and admit his guilt or face civil tort liability. To create such a duty would necessarily impact on Patterson's Fifth Amendment right against self-incrimination.
The Fifth Amendment guarantees "the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence." Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493-94, 12 L.Ed.2d 653, 659 (1964). The issue in this case is whether the imposition of tort liability operates as a form of compulsion which abridges the defendant's right to remain silent. In Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967), the Supreme Court held that a "`penalty' is not restricted to fine or imprisonment. It means ... the imposition of any sanction which makes assertion of the Fifth Amendment privilege `costly'." 385 U.S. at 515. Here defendant would be required to surrender his privilege against self-incrimination to prevent a tort action. Certainly this is as costly a sanction as a threat of disbarment, which was at issue in Spevack v. Klein, supra.[3] Nor is the certainty of tort *1196 liability any less a sanction than the threat of cancellation of public contracts. See Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). Thus, Patterson had no duty to speak.
Patterson was the wrongdoer and Diminnie was the wronged person. No one can morally justify Patterson's actions in letting an innocent person be tried and convicted, but the fact that he chose to exercise his Constitutional right to remain silent until after the conviction of Diminnie does not give rise to a cause of action against Patterson. No balance of moral positions, justice, and policy can require Patterson to surrender his Fifth Amendment right under threat of civil tort liability, for the creation of a tort duty would necessarily require the surrender of his Fifth Amendment privilege against self-incrimination.[4]
It is therefore clear that a summary judgment of no cause of action must be entered on behalf of defendant Patterson.

II
Plaintiff's claims against defendant United States are based on the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. The First Amended Complaint contains the following allegations: Count I: deprivation of Constitutional rights embodied in the 4th, 5th, 6th, and 8th Amendments, negligence in the investigation of plaintiff, and presentation of exaggerated or falsified evidence; Count II: illegal search and entry, trespass, and invasion of privacy; Count III: libel and slander; Count IV: assault and battery; Count V: false imprisonment; and Count VI: abuse of process and malicious prosecution.
A claim based on the Federal Tort Claims Act is barred if it falls within the provisions of 28 U.S.C. § 2680(h), which states:
"The provisions of this chapter and section 1346(b) of this title [28 U.S.C. 1346(b)] shall not apply to
*   *   *   *   *   *
"(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso [March 16, 1974], out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, `investigative or law enforcement officer' means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law." (emphasis in original).
Clearly, plaintiff's claims of libel, slander, and interference with contract rights are conclusively barred by § 2680(h). Further, the claims for assault, battery, false imprisonment, false arrest, and malicious prosecution are barred unless they arose on or after March 16, 1974. These claims arise out of the original arrest and indictment which occurred on or about June 12, 1973. Thus, the claims are barred by § 2680(h). See Ames v. United States, 600 F.2d 183 (8th Cir. 1979). Even though plaintiff's second trial occurred after March 16, 1974, defendant is insulated from any malicious prosecution claim arising out of this trial because *1197 of the grand jury indictment and subsequent jury verdict of guilty. (See discussion in Part I, supra.)
Plaintiff's constitutional claims in Count II must also be dismissed. The United States is not liable for constitutional torts under the Federal Tort Claims Act. See Birnbaum v. United States, 588 F.2d 319 (2d Cir. 1978); Liuzzo v. United States, 508 F.Supp. 923 (E.D.Mich.1981).
The remaining claims, trespass, invasion of privacy, negligence in the investigation, and negligence in the presentation of falsified evidence, are time barred under 28 U.S.C. § 2401(b), which states:
"A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues, or unless action is begun within six months after the date of mailing by certified or registered mail of notice of final denial of the claim by the agency to which it was presented."
Plaintiff's administrative claim was filed on June 15, 1977. Thus, the claims are barred if they accrued before June 15, 1975. A claim accrues for purposes of § 2401(b) when the plaintiff is in possession of the critical facts that he has been hurt, and who has inflicted the injury. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Plaintiff's trespass and invasion of privacy claims accrued when the Federal agents entered plaintiff's residence on June 12, 1973. The claim for negligence in the investigation of the extortion demands is based on actions that took place before the grand jury indicted plaintiff on June 6, 1973. Finally, the presentation of evidence could not have occurred later than the last day of the trial, April 4, 1975. Therefore, the claims are time barred.
For the reasons given, the motions for summary judgment of dismissal as against both defendant Patterson and defendant The United States of America will be granted.
NOTES
[1]  On August 11, 1980, defendants David Edmisten and Robert Rodemeyer were dropped from the action by stipulation. On November 7, 1980, plaintiff also conceded he had no claim against Mr. Calvert. Therefore the only remaining defendants are United States of America and Daniel Patterson.
[2]  Mr. Patterson had been arrested on May 2, 1974 for Federal drug offenses. He played a minor role in the A.T.F.'s investigation of Mr. Diminnie, having transported the extortion letters to the Michigan State Police Crime Lab in East Lansing for analysis.
[3]  In United States v. White, 589 F.2d 1283 (5th Cir. 1979), the Fifth Circuit held that being "forced to go to trial in a civil case while criminal charges arising out of the same conduct were pending" did not force defendant to choose between preserving his right against self-incrimination and losing a civil suit. The court noted that the defendant "was not forced to surrender his privilege against self-incrimination in order to prevent a judgment against him; although he may have been denied his most effective defense by remaining silent, there is no indication that invocation of the fifth amendment would have necessarily resulted in an adverse judgment." 589 F.2d at 1286. Although the situation is somewhat similar here, the likelihood of an adverse tort judgment is much more certain. Here, the plaintiff is arguing that tort liability flows directly from defendant's failure to speak.
[4]  In making this determination, this Court is aware of the decision in Seidel v. Greenburg, 108 N.J.Super. 248, 260 A.2d 863, 40 A.L.R.3d 987 (1969). In that case, stockholders of a corporation who conspired with others to have the corporation's lumber yard burned were liable in an action for malicious prosecution where the plaintiff (credit manager and bookkeeper of the corporation) was subjected to criminal prosecution for the fire. However, Seidel is factually distinguishable; the defendants failed to come forward even after their own convictions. The Fifth Amendment privilege was not applicable in Seidel.


592 So.2d 821 (1991)
STATE of Louisiana
v.
Kevin T. JOHNSON.
Nos. 91-KA-473, 91-KA-474.
Court of Appeal of Louisiana, Fifth Circuit.
December 30, 1991.
*822 Dorothy Pendergast, Asst. Dist. Atty., Gretna, for plaintiff/appellee.
John D. Rawls, Indigent Defender Bd., Gretna, for defendant/appellant.
Before BOWES, GAUDIN and DUFRESNE, JJ.
BOWES, Judge.
The defendant, Kevin T. Johnson, appeals the revocation of his probation for failure to comply with the conditions of probation ordered by the sentencing judge. Initially, we note that the defendant has no right to appeal his probation revocations. However, in the interest of judicial economy, this Court has the discretion to consider the defendant's appeals as an application for supervisory writs. State v. Davis, 562 So.2d 936 (La.App. 5 Cir.1990).
The defendant was charged with theft of property worth $1,000.00 in violation of LSA-R.S. 14:67 by bill of information No. 89-0414 and with two counts of forgery in violation of LSA-R.S. 14:72 by bill of information No. 89-1339.
The defendant subsequently pled guilty to the theft charge and one count of forgery. The State dismissed the remaining forgery count. The defendant was sentenced to three years at hard labor, suspended, and two years active probation with conditions on each of the two convictions. Those sentences were ordered to run concurrently.
On August 24, 1990, the State filed a rule to revoke the defendant's probation in each of the two cases. The trial court heard the rules and ordered the defendant's probation revoked for failure to comply with the conditions imposed and ordered the suspended sentences executed, with credit for time served. The defendant filed motions to appeal the probation revocations, and the trial court granted the motions. This Court ordered the cases consolidated for review.
While LSA-C.Cr.P. art. 920 provides that a defendant in a criminal proceeding is entitled to an error patent review on appeal, there is no specific provision to provide such a review when a defendant applies for a supervisory writ. Nevertheless, this Court has previously conducted error patent reviews on writ applications challenging probation revocations. State v. Forest, 571 So.2d 893 (La.App. 5 Cir.1990); State v. Davis, supra.
Upon conducting an error patent review, we note that there is a procedural defect in the institution of the revocation proceedings which mandates setting aside the probation revocations.
In State v. Forest, supra at 895, we stated:
The initial step in a probation revocation proceeding is either the issuance of a warrant for the arrest of the defendant for violation of any of the conditions or *823 the issuance of a summons instructing the defendant to appear and answer a charge of violation or threatened violation. C.Cr.P. Art. 899A. According to C.Cr.P. Art. 202, a warrant must be supported by an affidavit from a complainant and is improperly issued if it is not. C.Cr.P. Art. 385 provides that an affidavit must be executed under oath. C.Cr.P. Art. 209 permits the use of a summons instead of a warrant, provided the requirements of C.Cr.P. Art. 202 are met. Thus, a summons which lacks a supporting affidavit is improperly issued and cannot be used to institute a proceeding to revoke probation. [citations omitted].
In each of the two cases now under consideration, the rule to initiate the revocation proceedings was filed by the defendant's probation officer. Although those rules alleged specific violations of probationary conditions, neither rule was supported by an affidavit or executed under oath. Therefore, the defendant's probation revocations were improperly instituted and must be annulled and set aside.
Because we find that the revocation proceedings must be set aside, we need not address defendant's allegations that the trial court erred in revoking his probation for failure to comply with the conditions imposed.
For the above discussed reasons, the probation revocations of defendant are annulled and set aside and the case is remanded for further proceedings.
PROBATION REVOCATIONS ANNULLED, SET ASIDE AND CASE REMANDED.
GAUDIN, J., concurs in the decree.
GAUDIN, Judge, concurring.
I concur in the foregoing opinion because the summons was not properly supported. However, there is nothing preventing the state from instituting another revocation proceeding.


523 F.Supp. 1180 (1981)
Nathan ROSOFSKY, Plaintiff,
v.
Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant.
No. 80 C 2298.
United States District Court, E. D. New York.
October 5, 1981.
*1181 Nathan Rosofsky, pro se.
Edward R. Korman, U. S. Atty., Brooklyn, N. Y. (Jo Davis, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for defendant.

MEMORANDUM AND ORDER
NICKERSON, District Judge.
Plaintiff brought this action under section 205(g) of the Social Security Act (the "Act"), as amended, 42 U.S.C. § 405(g), to review a final determination of the Secretary of Health and Human Services (the "Secretary") that plaintiff was not entitled to husband's insurance benefits because they were entirely offset by the amount of his government pension, and that plaintiff was overpaid and must repay $859.20. The Secretary moves under Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings.

I
Section 202(c) of the Act, 42 U.S.C. § 402(c), as it stood in January 1977, provided, in pertinent part, that a husband of a woman entitled to old-age or disability insurance benefits could obtain a "husband's insurance" benefit if he met certain conditions. If he (A) had filed for such benefits, (B) had attained age 62, (C) had been receiving at least one-half his support from his wife, and (D) was not eligible for certain old-age or disability insurance benefits, he became entitled to the "husband's insurance" benefit. To receive a "wife's insurance" benefit, the wife of a man receiving old-age or disability benefits, had to meet all these conditions except one. She did not have to show that she had received one-half her support from her husband. Section 202(b) of the Act, 42 U.S.C. § 402(b).
*1182 In Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977), decided March 7, 1977, the Supreme Court, in considering an almost identical provision as to survivor's benefits, held that such a difference in the treatment of husbands and wives violated the due process clause of the Fifth Amendment to the United States Constitution. The opinion of Brennan, J., joined by three other Justices, rejected a distinction based on gender "that results in the efforts of female workers required to pay social security taxes producing less protection for their spouses than is produced by the efforts of men." Id. at 206-207, 97 S.Ct. at 1026-27. The opinion concluded "that the differential treatment of nondependent widows and widowers results not ... from a deliberate congressional intention to remedy the arguably greater needs of the former, but rather from an intention to aid the dependent spouses of deceased wage earners, coupled with a presumption that wives are usually dependent." Id. at 216-17, 97 S.Ct. at 1031-32. This presumption, according to the opinion, is "based simply on `archaic and overbroad' generalizations that it would save the Government time, money, and effort simply to pay benefits to all widows, rather than to require proof of dependency of both sexes.... [S]uch assumptions do not suffice to justify a gender-based discrimination in the distribution of employment-related benefits." Id. at 217, 97 S.Ct. at 1032 (citations omitted). Stevens, J., concurred on the ground that the discrimination was against males and was merely the accidental byproduct of a traditional way of thinking about females. Id. at 222, 97 S.Ct. at 1034. Four Justices dissented in an opinion by Rehnquist, J.
Two weeks later, on March 21, 1977, the Supreme Court rendered unanimous summary affirmances in Jablon v. Califano, 430 U.S. 924, 97 S.Ct. 1539, 51 L.Ed.2d 768, affirming 399 F.Supp. 118 (D.Md.1975) (three judge district court), and Califano v. Silbowitz, 430 U.S. 924, 97 S.Ct. 1539, 51 L.Ed.2d 768, affirming 397 F.Supp. 862 (S.D.Fla.1975), thereby making it clear that the result in the Goldfarb decision applied to the companion legislation establishing husband's insurance benefits. As a result the Social Security Administration granted such benefits without regard to dependency.
Robert M. Ball, former Commissioner of Social Security, explained to the Subcommittee on Social Security of the House Ways and Means Committee that "[t]he principle [sic] effect of the March 1977 Supreme Court decisions granting benefits to husbands and widowers under the same conditions as those previously applicable to wives and widows (that is, without a specific test of dependency) is to make eligible for social security benefits a substantial number of men who have worked for the Federal Government or for those state and local governments not covered by social security and whose wives have worked under social security. Very few of these men are in any real sense the economic dependents of their wives...." Hearings before the Subcommittee on Social Security of the Committee on Ways and Means, House of Representatives, 95th Cong., 1st Sess., p. 158 (July 18, 1977).
This result provided a "windfall" for retired male government employees not covered by social security but married to wives who had worked in covered employment. Had these men worked in the private sector, they would be eligible for old age insurance benefits or husband's insurance benefits, but not both. Under section 202(k)(2)(B) of the Act, 42 U.S.C. § 402(k)(2)(B), a person eligible for more than one type of monthly insurance benefit is entitled to receive only the one providing the largest benefit amount. But since a retired male government employee receives a civil service pension and not social security old age benefits, he became entitled under the Supreme Court decisions to receive both the pension and husband's insurance benefits.
To be sure, retired female government employees with husbands covered by social security had always received this "windfall". But when it was extended to men Congress took steps to eliminate it, evidently because the inclusion of men added substantially *1183 to the burden on the public fisc. Lawrence Alpern, Deputy Chief Actuary for the Office of the Actuary of the Social Security Administration, estimated on May 5, 1975 that elimination of the dependency requirement for husband's insurance benefits would cost approximately 411 million dollars in calendar year 1976. Jablon v. Califano, 399 F.Supp. at 132. The burden could be expected to increase over time because of cost of living benefit raises and the increase in the number of elderly.
Congress' response was to pass, as an amendment to the Act, Section 334 of Public Law 95-216 in December 1977, providing that the amount of wife's or husband's insurance benefits due to an individual under social security would be offset by the amount of government pension benefits paid to that individual. Under this legislation a retired male government employee otherwise entitled to receive, for example, $100 per month in husband's insurance benefits would receive nothing if his civil service pension provided more than $100 a month. If his civil service pension provided less than $100, for instance, $80, he would receive husband's insurance benefits totalling only the difference in the two benefit amounts, in this example, $20. The pension offset provision was made applicable to monthly insurance benefits payable beginning in December 1977 on the basis of applications filed in or after December 1977. P.L. 95-216, § 334(f) (1977); 20 C.F.R. § 404.408a(d).
However, in the amendment Congress provided an exception to the pension offset provision. Subsection 334(g) of Public Law 95-216 provides, in pertinent part, that the pension offset to insurance benefits is not to apply to an individual (A) who is eligible for a government pension for any month within the 60-month period beginning with the month the amendment is enacted (December 1977), and (B) who, "at the time of application for or initial entitlement to" insurance benefits, "meets the requirements" of the Act "as it was in effect and being administered in January 1977." This exception means that the pension offset does not apply to an individual eligible for a government pension in December 1977 through December 1982 and who meets the requirements for wife's or husband's insurance benefits under the Act as it was "in effect and being administered in January 1977."

II
On November 1, 1977 plaintiff's wife  Miriam Rosofsky  filed an application for old age retirement insurance benefits under the Act. On that same date plaintiff  an employee of the United States Treasury Department from 1928 through 1972 and now retired on a federal pension  filed an application for husband's insurance benefits. In February 1978, the month plaintiff's wife turned sixty-two, both plaintiff and his wife became eligible for and began receiving insurance benefits.
In a letter dated September 20, 1978 the Social Security Administration notified plaintiff that his spousal insurance benefits must be reduced by the monthly amount of his pension, and that since his pension exceeded his spousal benefit, no benefits were payable and he had been overpaid $859.20 from March 1978 through August 1978. Plaintiff requested reconsideration. On January 12, 1979 the Social Security Administration affirmed the earlier finding and held that he must repay the $859.20.
Plaintiff sought review, and in a decision dated May 25, 1979 Administrative Law Judge ("ALJ") Joseph A. Graziano found in plaintiff's favor. The ALJ noted that the statutory requirement of one-half support for husband's insurance benefits was not being followed in January 1977. A husband unable to demonstrate dependency who applied for benefits at that time received a notice informing him that the one-half support requirement was under review by the Supreme Court and that all applications were being held in abeyance until the Supreme Court ruled on its constitutionality. If plaintiff had applied for husband's insurance benefits in January 1977 and met all the requirements except dependency, his application would have been allowed following *1184 the Supreme Court decision in Califano v. Goldfarb. The ALJ therefore held that plaintiff had satisfied the exception to the pension offset provision by meeting the requirements of the Act "as it was in effect and being administered in January 1977" and should receive husband's insurance benefits without offset until at least November 1982.
On October 24, 1979 the Appeals Council decided to reopen the ALJ's decision under the authority of 20 C.F.R. § 404.957(b) (current version at 20 C.F.R. § 404.988(b)) which provided that an otherwise final decision of an ALJ might be reopened within four years after the date of the notice of initial determination upon a finding of good cause. Good cause was deemed to exist when "[t]here is an error as to such determination or decision on the face of the evidence in which such determination or decision is based." 20 C.F.R. § 404.958(c) (current version at 20 C.F.R. § 404.989(a)(3)). The Appeals Council proposed to find that the one-half support requirement was indeed in effect in January 1977 and that plaintiff failed to satisfy that requirement. But since plaintiff had not been given an opportunity to appear in person before the ALJ, the Council remanded the case to another ALJ for hearing.
After a hearing on March 3, 1980 attended by plaintiff and his wife, ALJ Irwin Bernstein on March 24, 1980 agreed with the Appeals Council that the one-half support requirement was in effect in January 1977 and that plaintiff did not satisfy the conditions of the pension offset exception. The ALJ found that plaintiff should not receive husband's insurance benefits in the future and had been overpaid benefits in the amount of $859.20. The ALJ held that although plaintiff was not at fault in causing the overpayment he should nevertheless repay the sum because refund would not defeat the purpose of the Act and would not be against equity and good conscience. 42 U.S.C. § 404(b); 20 C.F.R. § 404.506. The Appeals Council found no basis for granting review.

III
Plaintiff presents three separate objections to the Secretary's decision. First, he argues that the 1977 amendment to the Act applies only to applications filed in or after December 1977, and his application for husband's insurance benefits was filed on November 1, 1977. P.L. 95-216, § 334(f); 20 C.F.R. § 404.408a(d). However, under section 202(j)(2) of the Act, 42 U.S.C. § 402(j)(2), an application for benefits filed before the applicant qualifies for them is not deemed filed until the first month in which the applicant satisfies all the applicable requirements. Plaintiff was not eligible for husband's insurance benefits until his wife reached the age of sixty-two on February 22, 1978 and became eligible for old-age retirement benefits. Thus his application is not deemed filed until February 1978 and is subject to the pension offset provisions.
Plaintiff's second argument is that he falls within the exception to the pension offset provision because he was receiving a federal government pension in December 1977 and met the requirements of the Act "as it was in effect and being administered in January 1977." ALJ Graziano agreed with this contention. This court does not.
No doubt those applications for husband's insurance benefits filed in January 1977 which did not show economic dependency were held in abeyance until the Supreme Court's decision in Califano v. Goldfarb, after which these applications were allowed. In that literal sense plaintiff met the requirements of the Act as it was "in effect and being administered in January 1977."
However, to construe the 1977 amendments as plaintiff urges would be to disregard the manifest purpose of Congress to limit the exception to those entitled to spousal benefits under the Act as written in January 1977 and not to include those who received benefits as a result of the courts' striking down of the support requirement. The court is not required to read statutory language so literally as to defeat its aim. United States v. 0.16 of an Acre of Land, 517 F.Supp. 1115, 1119 (E.D.N.Y.1981).
*1185 The pension offset provisions of the amendment were designed to end the "windfall" to non-dependent retired male government employees resulting from the Supreme Court decisions in the Goldfarb, Jablon, and Silbowitz cases. However, as written these provisions also reduced the spousal insurance benefits available to certain retired female government employees. The Conference Committee's concern as to the financial impact the reduction would have upon these women led it to insert the exception to the pension offset:
The managers are concerned that there may be large numbers of women, especially widows in their late fifties, who are already drawing pensions, or would be eligible to draw them within 5 years of the date of enactment of this bill, based on their non-covered work and whose retirement income was planned for on the assumption of the availability of full wife's or widow's benefits under social security. Inclusion of this exception to the applicability of the Senate provision reinforces its prospective nature and avoids penalizing people who are already retired, or close to retirement, from public employment and who cannot be expected to readjust their retirement plans to take account of the "offset" provision that will apply in the future.
House Conference Report No. 95-837, Joint Explanatory Statement of the Committee of Conference, 95th Cong., 1st Sess. at 72 reprinted in [1977] U.S.Code Cong. & Ad.News 4308, 4318.
It is clear from this excerpt from the conference report that Congress was focussing on the reliance interests of women, not men. Thus, Congress exempted from the pension deduction those persons eligible for spousal benefits before the Supreme Court struck down the gender-based dependency requirement because this would provide benefits to women without regard to dependency but to men only if they satisfied the one-half support test. Congress attempted to do this by making the exception available to applicants meeting the requirements of the Act "as it was in effect and being administered in January 1977."
In choosing the January 1977 date Congress selected a month that preceded the March 1977 Supreme Court decisions in the Goldfarb, Jablon, and Silbowitz cases, apparently in the belief that the Social Security Administration required male applicants to show dependency until the issuance of these decisions. This perhaps mistaken belief is understandable since the exception was only added to the amendment in the Conference Committee, and it is unlikely that the committee had an opportunity to investigate the Social Security Administration's actual administrative practice. See House Conference Report No. 95-837, supra. If Congress had wished to provide the exception to male applicants without regard to dependency, it would certainly have selected a control date after the March 1977 Supreme Court decisions, not before.
Plaintiff's third argument is that the pension offset provisions violate his due process rights by discriminating on the basis of gender because they reduce the benefits to him as a man commencing as of the date of enactment but will not reduce the benefits of any woman applying before December 1982. The effect of the Supreme Court decision was to invalidate under the Due Process Clause of the Fifth Amendment the gender-based distinction that a male applying for spousal insurance benefits must show that he receives at least one-half of his economic support from his wife but a female applying for such benefits need make no showing of support. The one-half support requirement was therefore treated as void, and both men and women received spousal insurance benefits without regard to dependency. See, e. g., Jablon v. Califano, 399 F.Supp. at 132, aff'd, 430 U.S. 924, 97 S.Ct. 1539, 51 L.Ed.2d 768 (1977). Congress has sought to resurrect this gender-based requirement and make it applicable to applications for benefits in the five year period between December 1977 and December 1982. The question is whether Congress may do so.
In attempting to foretell how the Supreme Court may decide this issue, the *1186 court is mindful that no opinion in Califano v. Goldfarb expressed the views of a majority of the Court. Stevens, J., who voted for the same result as did the four Justices joining in the opinion of Brennan, J., reached that result on the ground that "habit, rather than analysis or actual reflection," caused Congress to discriminate in favor of females, that "this discrimination against a group of males is merely the accidental byproduct of a traditional way of thinking about females," and that the discrimination was "sufficiently questionable that `due process requires that there be a legitimate basis for presuming that the rule was actually intended to serve [the] interest' put forward by the Government as its justification." 430 U.S. at 222-23, 97 S.Ct. at 1034-35, quoting Hampton v. Mow Sun Wong, 426 U.S. 88, 103, 96 S.Ct. 1895, 1905, 48 L.Ed.2d 495 (1976).
In urging the passage of the 1977 amendment the Conference Committee articulated a reason for the exception to the pension offset, namely, that women (including women who retire at any time within five years of December 1977) may have planned their retirement on the assumption that full wife's or widow's benefits would be available. Would this avowed concern for the supposed reliance interests of some women be sufficient under the opinion of Stevens, J., to justify the continuation of the discrimination between men and women?
Presumably most legislation arouses expectations and leads to reliance on the part of some. But plainly that cannot be a justification for the continuation of whatever unconstitutional practice Congress chooses. Cf. Shelley v. Kraemer, 334 U.S. 1, 22, 68 S.Ct. 836, 846, 92 L.Ed. 1161 (1948) (property owners have no constitutional right to judicial enforcement of an agreement that results in the denial of equal protection to others). One would not suppose, for example, that a statute giving benefits only to male whites could be validly extended for a term of years because they in fact relied on the prospect of those benefits. The Supreme Court has upheld payments under a statute previously declared invalid under the Establishment Clause of the First Amendment where services had been rendered prior to the Court's holding and in reliance on the statute. Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973). The minimal interference with the constitutional interest to be protected, the actual reliance on the statute, the justification for doing so, and the irremediable injury which would otherwise be inflicted, apparently persuaded the court to approve the payments.
That decision hardly justifies a continuation of discriminatory social security payments for all eligible women who retire between December 1977 and December 1982. First, only women are presumed to have relied on the practice of the Social Security Administration, although following the decision in Califano v. Goldfarb men were granted husband's benefits without regard to dependency. To the extent that Congress concerned itself with the interests of women relying on an unconstitutional practice and disregarded the interests of men who relied on a constitutional practice, the 1977 exception to the pension offset provision appears to be the product of the same traditional way of thinking about females that was condemned in Califano v. Goldfarb.
Moreover, many of the eligible women (probably at least 50%, see Califano v. Goldfarb, 430 U.S. at 238 n.7, 97 S.Ct. at 1042 n.7, Rehnquist, J., dissenting) would no doubt be able to show that they received at least one-half their support from their husbands. The reliance interest of these women could have been protected simply by making applicable to both men and women the same requirement of showing they received one-half their support from their spouses. The government has not suggested a justification for imposing different burdens on those able to show dependency based on whether they are male or female.
In addition, the women who do not receive half their support from their husbands and who will benefit from the disparate treatment in the 1977 amendment are the same as those who benefitted from such *1187 treatment in the original legislation. They are the most successful women, least likely to need the benefits. Stevens, J., concurring in Califano v. Goldfarb, 430 U.S. at 221, 97 S.Ct. at 1034.
Finally, even if it were proper to continue different treatment of men and women to take account of the reliance interests of women but not men, the government does not suggest that it would be impractical to base exceptions to the offset provision on a showing of actual reliance.
If Congress, in order to protect reliance interests, is to be allowed to continue the distinction between men and women previously held unconstitutional, Congress should at least be required to minimize the discriminatory treatment on which the holding of unconstitutionality was based. Congress has not done that here but appears to have reacted much as it did in the original legislation, without appropriate concern for the claims of similarly situated surviving spouses to equal treatment. This court therefore holds that the exception to the pension offset provision violates the Due Process Clause of the Fifth Amendment. But see Miller v. Dept. of Health and Human Services, Civil No. 80-1792 (E.D.N.Y. July 10, 1981) (plaintiff challenged the distinction between public and private sector employees but did not challenge the gender-based discrimination); Duffy v. Harris, (Jan. 1980-Sept. 1980 Transfer Binder) Unemp. Ins.Rep. (CCH) ¶ 16,906 (D.N.M.1979).

IV
Congress considered the possibility that a court might decide that the pension offset exception was invalid, and provided in the amendment:
If any provision of this subsection [providing the exception to the pension offset], or the application thereof to any person or circumstance, is held invalid, the remainder of this section [providing for the pension offset] shall not be affected thereby, but the application of this subsection to any other persons or circumstances shall also be considered invalid.
P.L. 95-216, § 334(g)(3) (1977).
This provision embodies a Congressional decision that, in the event the exception is declared unconstitutional, it would be preferable to eliminate the benefits for both men and women rather than provide the benefits to men. In other words, Congress was interested in attempting to continue benefits to women who would lose them from the pension offset without, at the same time, risking the far greater outlays that would result if the exception were applied to non-dependent males.
This separability clause raises the question of whether plaintiff has standing to attack the pension offset provision. The argument is that under the terms of the clause plaintiff cannot benefit from a holding that the pension offset provision is invalid because the consequence of such a determination would be to deny him benefits. See Caloger v. Harris, Civ. H-80-388 (D.Md.1981).
To have standing in court a plaintiff must, of course, present a "case" or "controversy" over which a federal court has jurisdiction under Article III of the Constitution. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975). In this case there is undoubtedly a justiciable case or controversy. Plaintiff seeks money, and the Secretary resists payment. Moreover, plaintiff is also before the court defending against what might be termed a counterclaim. The Secretary seeks recovery from him of an alleged overpayment of $859.20, and the plaintiff resists.
But even if there is a justiciable case before the court, a party, whether plaintiff or defendant, in order to have standing to raise a constitutional issue, must demonstrate that the resolution of that issue may make a significant difference to him. A plaintiff must show that there is a possibility that he will benefit from a favorable decision. Orr v. Orr, 440 U.S. 268, 271-78, 99 S.Ct. 1102, 1107-11, 59 L.Ed.2d 306 (1979); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). A defendant *1188 must show that a favorable decision can possibly lead to frustration of the plaintiff's claim against him. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). Plaintiff in this case has made the requisite showing in his roles as a claimant seeking to obtain benefits and as a defender against the Secretary's claim for repayment.
As noted above, plaintiff is not required to refund an overpayment if he was not at fault in receiving it and repayment would be "against equity and good conscience." 42 U.S.C. § 404(b). Admittedly plaintiff was not at fault, and this court holds that it is "against equity and good conscience" for the Secretary to require repayment from him as a man while the Secretary has not at the same time required women to repay.
It is true that the regulations issued by the Secretary declare that a repayment is "against equity and good conscience" only where, because of the incorrect payment or notice of it, the claimant relinquished a valuable right or changed his position for the worse. 20 C.F.R. § 404.509. But the court is not bound by this interpretation. The words of 42 U.S.C. § 404(b) include no such limitation, and it may fairly be assumed that Congress would regard a discriminatory and unconstitutional exaction from a man as against equity and good conscience. The Secretary is therefore not entitled to repayment of $859.20.
Even in his capacity as a plaintiff seeking payments from the Secretary plaintiff has the requisite standing. Separability clauses, including the one involved in this case, have merely a potential effect on the outcome of litigation. The provision here at issue creates a presumption that in the event the exception to the offset provision is found to be invalid, the pension deduction will remain in effect and be applied to all applicants for spousal insurance benefits. Electric Bond & Share Co. v. S. E. C., 303 U.S. 419, 434, 58 S.Ct. 678, 683, 82 L.Ed. 936 (1938). This is a presumption only and a court finding the exception unconstitutional may consider whether "there is any inherent or practical difficulty in the separate and independent enforcement" of the pension deduction before allowing it to stand without its exception. Id. at 435, 58 S.Ct. at 683.
Consequently when plaintiff brought this action, it was not a foregone conclusion that a decision upholding his constitutional challenge would result in a denial of husband's benefits to him. It was by no means frivolous to argue that the pension deduction itself should be stricken along with its gender-based exception clause, thus entitling plaintiff to social security payments. Since there was a possibility that plaintiff in contesting the exception would benefit from a favorable decision, he had standing. See Orr v. Orr, 440 U.S. 268, 271-78, 99 S.Ct. 1102, 1107-11, 59 L.Ed.2d 306 (1979).
This court does not find "any inherent or practical difficulty" in enforcing the pension deduction without the exception. Plaintiff claims that the reduction of his spousal insurance benefits by the monthly amount of his federal government pension violates his constitutional rights by treating public sector retirees differently from private section retirees. However, from the standpoint of Social Security benefits the effect of the pension deduction is to treat retired government employees in a manner similar to persons who have retired from private sector employment. As noted above, under Section 202(k)(2)(B) of the Act, 42 U.S.C. § 402(k)(2)(B), the latter may receive Social Security benefits from their own old age insurance or from spousal insurance, but they may not receive both. By eliminating duplicative benefits Congress sought to minimize the fiscal burden on the Social Security system while effecting a measure of retirement security. For a court to eliminate the pension deduction or to extend the five-year exception to all eligible men and women without regard to dependence would needlessly fly in the face of Congressional intent at great expense to the taxpayer.

*1189 V
This court concludes that the pension offset exception in subsection 334(g)(1) of Public Law 95-216 unconstitutionally discriminates on the basis of gender. Since the pension deduction itself is not affected by the invalidity of that subsection, the spousal benefits to which plaintiff is entitled are entirely offset by his government pension. However, it would be against equity and good conscience to require plaintiff to repay the $859.20 in benefits which he received from March 1978 through August 1978.
The decision of the Secretary is reversed to the extent it directs repayment by plaintiff of $859.20 and is otherwise affirmed. So ordered.