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[davidlaw69]

Plaintiff moves for summary judgment on literal infringement of a two method patents against a manufacturer of a product which allegedly performs the methods.

The manufacturer does not raise as a defense the fact that the manufacturer of a product cannot be held liable for direct infringement of a product containing the infringing method.

The judge finds literal infringement as to one method, and non-infringement (either literally or through the doctrine of equivalents) as to the other and enters summary judgment.

At trial, the manufacturer wants to raise the manufacturer argument cited above as a defense to the remaining patent claim.  The plaintiff argues that the defendant did not raise it on summary judgment, literal infringement was found, case closed.

Is there an argument the defendant can make to overcome this?