OPTOLUM, INC.,
`
`Plaintiff,
`
`v.
`CREE, INC.,
`
`
`Civ. Action No. 1:17-cv-00687
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`GREENSBORO DIVISION
`)
`)
`)
`)
`)
`)
`)
`)
`)
`Defendant.
`)
`
`PLAINTIFF OPTOLUM, INC.’S REPLY BRIEF
`REGARDING ENSNAREMENT HEARING
`
`Pursuant to the Court’s Order, D.N. 294 (Oct. 7, 2021),
`
`Plaintiff OptoLum, Inc. (“OptoLum”) provides the following
`reply.
`I.
`INTRODUCTION
`OptoLum has shown that the asserted claims in this
`litigation incorporating the Doctrine of Equivalents are
`patentable over the prior art and thus do not “ensnare” Cree’s
`proposed prior art combinations. Indeed, the Patent Examiner
`actually found claim 1 of the ‘028 patent patentable over the
`very same Arndt reference that is the centerpiece of Cree’s
`arguments, and Cree’s proposed combinations do nothing to
`cure Arndt’s failure to teach outer-surface heat dissipation
`protrusions. See Tr. 198:6–199:15. Cree’s attempts to second
`
`
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`Case 1:17-cv-00687-WO-JLW Document 305 Filed 10/20/21 Page 1 of 20
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`
`
`Plaintiff,
`
`v.
`CREE, INC.,
`
`
`Civ. Action No. 1:17-cv-00687
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`GREENSBORO DIVISION
`)
`)
`)
`)
`)
`)
`)
`)
`)
`Defendant.
`)
`
`PLAINTIFF OPTOLUM, INC.’S REPLY BRIEF
`REGARDING ENSNAREMENT HEARING
`
`Pursuant to the Court’s Order, D.N. 294 (Oct. 7, 2021),
`
`Plaintiff OptoLum, Inc. (“OptoLum”) provides the following
`reply.
`I.
`INTRODUCTION
`OptoLum has shown that the asserted claims in this
`litigation incorporating the Doctrine of Equivalents are
`patentable over the prior art and thus do not “ensnare” Cree’s
`proposed prior art combinations. Indeed, the Patent Examiner
`actually found claim 1 of the ‘028 patent patentable over the
`very same Arndt reference that is the centerpiece of Cree’s
`arguments, and Cree’s proposed combinations do nothing to
`cure Arndt’s failure to teach outer-surface heat dissipation
`protrusions. See Tr. 198:6–199:15. Cree’s attempts to second
`
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`guess the Examiner are simply not supported by the record,
`and thus OptoLum’s asserted patent claims do not ”ensnare”
`the prior art.
`Instead, Cree’s ensnarement hearing brief evidences a
`fundamental misunderstanding of ensnarement law and a lack of
`evidentiary support for Cree’s position. Its arguments fail
`for at least the following reasons:
`•
`Cree’s focus on the purported disclosure of multi-
`chip LEDs in the prior art is misplaced, as Cree improperly
`ignores other required limitations, including the outer-
`surface “heat dissipation protrusions” which are required in
`all asserted claims. Cree’s failure to present prior art
`that teaches outer-surface heat dissipation protrusions
`designed to convect heat is dispositive of no ensnarement.
`•
`Cree fails to sufficiently address patentability of
`the asserted claims. Its ensnarement argument mistakenly
`focuses on un-asserted claim 1 of the ‘303 patent, and
`improperly dismisses the actually asserted claims that depend
`from claim 1 as “trivial,” when its own expert concedes that
`they were in fact material to the Patent Examiner’s actual
`determination of patentability.
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`•
`
`Cree misinterprets and misrepresents the teachings
`of Arndt and the ‘028 patent prosecution history.
`•
`The combinations on which Cree relies: (1) Arndt &
`Cao; (2) Abdelhafez & Cao; and (3) Abdelhafez & Norlux Hex do
`not come close to rendering the asserted claims unpatentable.
`Cree’s lip service to the requirement that a POSA would have
`had motivation to combine the asserted references is not
`sufficient to prove obviousness. The record, instead,
`establishes that a POSA would not have been motivated to use
`the asserted multi-chip packages in either Arndt or
`Abdelhafez. Cree’s brief also mischaracterizes the very
`strong secondary considerations evidence of non-obviousness,
`and ignores the fundamental point that OptoLum’s invention
`enabled the success of Cree’s infringing products.
`II. CREE’S ARGUMENTS ABOUT THE PRIOR ART
`1.
`Cree Mischaracterizes the Ensnarement Issue to be
`Determined by the Court
`
`Cree ignores that ensnarement requires that the entire
`claim as asserted under the DOE must be invalid in light of
`the asserted prior art.
`Cree argues: “. . . OptoLum cannot show that its expanded
`claim scope would be patentable over the prior art disclosing
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`multi-chip LEDs as either already existing or obvious to a
`POSA.” Cree Br. 25-26. The ensnarement analysis, however,
`does not turn on whether multi-chip LEDs were already existing
`or obvious to a POSA, and Cree’s argument to this effect makes
`no sense.
`As OptoLum explained in its opening brief, in order to
`“ensnare” the prior art, the prior art must anticipate or
`render obvious the entire claim; focusing on the single
`limitation to which DOE applies evidences a fundamental
`misunderstanding of ensnarement. Indeed, this type of
`truncated analysis was precisely what the Federal Circuit
`rejected in Conroy v. Reebok Int’l Ltd., 14 F.3d 1570, 1577
`(Fed. Cir. 1994)(finding that “the district court applied an
`improper test of permissible patent scope under the doctrine
`of equivalents” by “conclude[ing] that the mere existence of
`an element in the prior art automatically precludes Mr. Conroy
`from asserting a scope of equivalency…”).
`2.
`Cree’s Focus on Claim 1 of the ‘303 Patent Is
`Misplaced
`
`Cree’s argument that “Arndt discloses all of the elements
`of Claim 1 of the ‘303 patent” is both irrelevant and
`incorrect. OptoLum is not asserting Claim 1 of the ‘303
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`patent at all, let alone under the Doctrine of Equivalents,
`so Cree’s nearly exclusive focus on Claim 1 makes no sense.
`Further, Cree’s attack on dependent claims as somehow
`being “trivial” is fundamentally contrary to U.S. patent law,
`where each dependent claim is its own invention. Indeed, 35
`U.S.C. § 282(a) expressly states that:
`A patent shall be presumed valid. Each claim of
`a patent (whether in independent, dependent, or
`multiple dependent form) shall be presumed valid
`independently of the validity of other claims;
`dependent or multiple dependent claims shall be
`presumed valid even though dependent upon an invalid
`claim. The burden of establishing invalidity of a
`patent or any claim thereof shall rest on the party
`asserting such invalidity. (emphasis added.)
`Cree’s approach to dependent claims is not only contrary
`to § 282(a), it is especially misplaced here where the
`examiner for the OptoLum patents expressly determined that
`the prior art — including the very Arndt reference Cree relies
`upon — fails to teach the outer-surface heat dissipation
`protrusions required by asserted Claim 2 of the ‘303 patent.
`Tr. 198:6-199:15.
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`3.
`
`Cree’s Interpretation of Arndt Is Not Supported By
`Record Evidence
`
`As Dr. Bretschneider begrudgingly acknowledged, his
`theory that the electrical leads to Arndt’s LEDs are “heat
`dissipation protrusions” that are “designed to convect heat”
`is devoid of support from the disclosure of the Arndt patent.
`Tr. 201:3-202:7. None of Arndt’s teachings evidence outer-
`surface heat dissipation protrusions designed to convect
`heat, nor does any other documentary evidence at the time.
`Tr. 203:21-24.
`dissipation
`“heat
`of
`construction
`The
`Court’s
`protrusion” is “a projection from a surface designed to
`convect heat.” Claim Construction Order at 42 (D.N. 152).
`Asserted claim 2 of the ‘303 Patent and Claim 1 of the ‘028
`Patent require at least one heat dissipation protrusion to be
`carried on the outer surface of the elongate thermally
`conductive member, i.e., a projection designed to convect
`heat from the cooling member. The Patent Examiner thoroughly
`examined the invention during the ‘028 patent’s prosecution
`— including consideration of Arndt — and correctly found the
`claims to be patentable and non-obvious.
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`Interpreting the present claims under the DOE to cover
`each Cree LED chip together with its infrastructure as the
`equivalent of a package comprising a diode that emits light
`and a thermally conductive back, or the equivalent of a
`package comprising a solid state light source, would not
`“ensnare” Arndt. Claim 2 of the ‘303 patent, and the claims
`dependent thereon, and Claim 1 of the ‘028 patent, and the
`claims dependent thereon, are still patentable at least due
`to Arndt’s failure to teach outer-surface heat dissipation
`protrusions designed to convect heat. Those claims would
`thus not be anticipated or rendered obvious to one of ordinary
`skill in the art at the time of the present invention.
`Cree also misrepresents the ‘028 patent prosecution
`history with regard to the “heat dissipation protrusions.”
`Cree summarily asserts that Dr. Bretschneider “addressed the
`. . . heat dissipation protrusions disclosed by Arndt.” Id.
`(citing Tr. 160-165). Dr. Bretschneider’s testimony,
`however, was directed to Arndt’s description of cooling ribs
`on the inside surface of the cooling member, not outer-surface
`heat dissipation protrusions. See Tr. 163:20-164:1; cf.
`Arndt, col. 4, ll. 17-23 (“the side of the cooling member
`
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`facing away from the printed circuit board”). As noted above,
`Arndt could not (and did not) put a protrusion on the outer
`side of the cooling member.
`Cree’s argument that a “finding in the ‘028 prosecution
`history” purportedly “recognize[d] that all limitations of
`independent claim 1 of the ‘303 patent. . . are disclosed by
`the prior art” (Cree Br. at 11) misapplies patent law and
`common sense. The ‘303 Patent claim 1 is not asserted in
`this case and has nothing to do with ensnarement. The record
`establishes that Arndt’s TOPLED LEDs are cooled through their
`electrical leads, and thus lack “thermally conductive backs,”
`as is required by the Court’s construction of “a plurality of
`light emitting diodes.” See Tr. 96:18-97:12; 203:21-24.
`Thus, while Arndt’s TOPLEDs fall within the broader category
`of “solid state light sources” in the ‘028 patent, that fact
`alone does not make them “LEDs” as construed by the Court.
`Indeed, Cree’s argument is based on faulty logic: a
`teaching that falls within a broad category — such as “solid
`state light source” — does not necessarily teach a narrower
`limitation — such as “packages comprising a thermally
`conductive back and a diode that emits light.” Indeed, that
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`would be like saying “a chicken is bird, and the category of
`“birds” encompasses eagles, so therefore a chicken is an
`eagle.
`
`The asserted claims applied under the DOE comprising the
`LED chips and their package infrastructures do not “ensnare”
`Arndt, as such equivalents do not affect the examiner’s
`already clear determination that the asserted claims are not
`invalid in light of Arndt.
`4.
`Arndt + CAO
`Cree characterizes a combination of Arndt and Cao as
`follows: “Together the two disclose the second-plane
`limitation of the asserted patents as argued by OptoLum under
`DOE.” Cree Br. at 14 (citing Tr. at 168-169). Even assuming
`that were the case,1 that does not somehow cure the missing
`disclosure in Arndt including with regard to the outer-
`surface heat dissipation protrusions, nor does it nullify the
`grounds on which the examiner allowed the asserted claims
`over Arndt in the ‘028 prosecution.
`Moreover, contrary to the assertion at page 12 of
`Cree’s brief, Arndt and Cao do not disclose all of the
`
`
`1 It is not the case. See OptoLum Br. at 17-18.
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`elements of the range of equivalents OptoLum seeks. As
`Dr. Bretschneider admitted, for example, the claim
`requirement of an outer-surface heat dissipation
`protrusion designed to convect heat is missing from this
`combination. Tr. 202:12-24. Moreover, swapping Arndt’s
`and Cao’s packages would remove precisely the electrical
`leads that Cree erroneously contends are the heat
`dissipation protrusions. Tr. 202:8-16.
`Dr. Bretschneider discusses the Arndt and Cao
`references, and the other references of record, with a
`similar approach: whatever teachings or disclosures are
`missing
`from
`the
`reference
`combinations,
`Dr.
`Bretschneider supplies in the form of unsubstantiated
`opinions that the missing disclosures are within the
`skill of one of ordinary skill in the art. Such
`unsubstantiated “gap fillers” do not play an appropriate
`role in a prior art analysis. See, e.g., DSS Tech. Mgt.,
`Inc. v. Apple Inc., 885 F.3d 1367, 1374-78 (Fed. Cir.
`2018)(rejecting reliance on “ordinary creativity” “as a
`wholesale substitute for reasoned analysis and
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`evidentiary support,” particularly “when dealing with a
`limitation missing from the prior art references
`specified”) (quoting Arendi S.A.R.L. v. Apple Inc., 832
`F.3d 1355, at 1362, 1366 (Fed. Cir. 2016)).
`Cree also mischaracterizes Dr. Steigerwald’s testimony
`regarding Cao. Contrary to Cree’s argument, Dr. Steigerwald
`did not “recognize that the bottom of the structure was
`thermally conductive.” Cree Br. at 15. Rather, as Dr.
`Steigerwald testified, Cao fails to include sufficient
`disclosure to conclude that the multi-chip package has a
`thermally conductive backside. See Tr. 50:18-51:9, Cree Br.
`At 28. Cree’s contention that Dr. Steigerwald’s “opinion is
`based on pure speculation” makes no sense, and is not
`credible. Cree Br. at 28. If something is missing from
`the reference, that does not mean that an expert’s opinion
`that it is missing amounts to “speculation.”
`5.
`Abdelhafez & Cao
`Cree’s argument based on a combination of Abdelhafez and
`Cao is even more vacuous. Cree argues that Abdelhafez
`discloses all the claim limitations “of the ‘303 patent.”
`
`
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`See Cree Br. at 19. Cree does not even bother to identify
`any particular claim that it is referencing.
`Cree baldly states that “the disclosures with respect to
`Arndt are similarly present in Abdelhafez,” and references
`supposed “striking similarities, particularly with respect to
`the tubular core structure and positioning of LEDs,” with
`nary an analysis of a single claim element. Cree Br. at 16.
`Cree then summarily asserts that “the already-explained
`elements disclosed by Arndt are also disclosed by
`Abdelhafez.” See Cree Br. at 16. Cree includes a bare-bones
`description of Abdelhafez, but no comparison to a single
`patent claim limitation.
`Aside from the overly-generalized assertions with regard
`to claim 1, Cree tokenly lumps in the ‘028 patent as well:
`“both references, combined, disclose all the limitations of
`the asserted patents.” Cree Br. at 20 (citing Tr. at 180-
`181). Again, the record evidence belies Cree’s insufficient
`summary assertions: At Tr. 180:15-181:10 (four sentences
`total), Dr. Bretschneider generalizes about “core concepts,”
`without a single comment about a single claim. That cannot
`
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`suffice to find that any asserted claim ensnares the prior
`art.
`Dr. Bretschneider also tried to label anything that might
`be hot as a heat dissipation protrusion, even including
`supposed “protrusions” from the LED packages themselves,
`despite that this was not disclosed in Dr. Bretschneider’s
`voluminous report.2 See Cree Br. at 19-20; Tr. 178:5-24.
`Cree also noticeably does not discuss in its brief whether or
`which of any of the “dissipation protrusions” or “heat
`dissipation members” are carried on the outer surface of the
`cooling member or designed to convect heat. Cf. OptoLum Br.
`at p. 14.
`Dr. Bretschneider undermined his own testimony that
`element 14 was a “heat dissipating protrusion” by admitting
`that the primary purpose of element 14 was not heat transfer,
`Tr. 214:14-16, and it was not designed for convective cooling,
`as is required under the Court’s construction. Tr. 214:22-
`24. The Abdelhafez disclosure doesn’t even mention element
`
`
`2 Dr. Bretschneider’s report only relies on undescribed
`element 14 as the alleged outer-surface heat
`dissipation protrusions. He never presented the theory
`that the Abdelhafez electrical leads are “designed to
`convect heat.”
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`14, and contains no disclosure as to what element 14 is, what
`it is made of, or what function it is intended to fulfill.
`Once again, Dr. Bretschneider has tried to establish
`ensnarement based on unsupported speculation.
`6.
`Abdelhafez + Norlux Hex
`Cree barely even addresses its final purported basis for
`asserting obviousness, a combination of Abdelhafez and Norlux
`Hex. See Cree Br. at 21-22. The only claim Cree even mentions
`in this section of its brief is claim 1 of the ‘303 patent,
`which is not asserted. Conclusory and unsubstantiated prior
`art characterization does not suffice to establish that the
`asserted patent claims ensnare the prior art.
`The Norlux Hex does not cure the failure of the Abelhafez
`invention to disclose all limitations of the asserted OptoLum
`patent claims. Even Dr. Bretschneider did not suggest that
`the Norlux Hex article described any heat protrusions
`designed for convection on the outer surface of any elongate
`cooling member. The Norlux Hex article mentions the
`possibility of generating white light through its different
`colored LEDs, but the fact is that the different LEDs were
`
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`incapable of the individual adjustment which would be
`necessary to form white light. See Tr. 94:8-13; 43:1–44:20.
`7.
`Cree’s Attack on Mr. York’s Testimony Is Not
`Supported by the Federal Rules of Evidence
`
`Cree criticizes Mr. York and wants the Court to ignore
`his testimony because Mr. York relied in part on Dr.
`Steigerwald’s opinions. This position disregards the Federal
`Rules of Evidence and common sense. See Fed. R. Evid. 703.
`Further, Cree’s efforts to misrepresent Dr. York’s entire
`testimony as allegedly a “foregone conclusion” merely show
`Cree’s fundamental misunderstanding of the ensnarement
`inquiry. As Mr. York testified, all of the asserted prior
`art fails to teach the outer surface heat dissipation
`protrusions designed to convect heat, which makes ‘303 patent
`claim 2 and ‘028 Patent claim 1 patentable regardless of
`whether Cao or the Norlux Hex were within the scope of
`equivalents.
`8.
`Objective Evidence of Non-Obviousness
`
`As pointed out at pages 32-34 of OptoLum’s Brief, the
`record contains strong objective evidence of non-obviousness,
`including industry praise, the fulfillment of a long-felt but
`unfilled need, and the enablement of the Cree bulbs to
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`function, and thus achievement of substantial commercial
`success. Cree itself recognized the adoption of the OptoLum
`patent-practicing “Filament Tower” in the Cree accused
`products as an “innovation” and even a “genius idea.” On
`that point, we agree.
`9.
`The Law and Fundamental Fairness Favor Deciding
`Ensnarement After the Jury Verdict
`
`The Court is not required to decide ensnarement before
`the trial, nor should it. Cree has identified no “prejudice”
`to its “defense.” DOE is not an “improper legal theory of
`infringement,” as the U.S. Supreme Court has made clear, and
`Cree has offered no credible argument to support that
`contention because it cannot.
`Cree is transparently trying to obtain a premature
`determination on ensnarement in an effort to deprive OptoLum
`of its right to a jury trial on the issue of infringement
`under DOE. Cree’s assertions that it will suffer some
`unidentified prejudice and that the jury will be “confused”
`are neither sufficiently explained to warrant consideration
`nor supported by the law or fundamental fairness.
`
`
`
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`10. Cree’s Criticism of OptoLum’s “Refusal to Submit a
`Hypothetical Claim” Makes No Sense
`
`Despite that the Court’s determination that OptoLum did
`not bear any burden to create a hypothetical claim (which
`also is well supported by the case law, as discussed in the
`summary judgment papers), Cree now criticizes OptoLum for
`following the Court’s decision. It makes no sense to say
`that OptoLum “refused” to provide a hypothetical claim when
`it clearly had no obligation to do so.
`The equivalence asserted here is straightforward:
`OptoLum asserts that one of the limitations of the asserted
`claims in each of the patents (“plurality of light emitting
`diodes” for the ‘303 patent and “a plurality of solid state
`light sources” for the ‘028 patent) is met under the DOE.
`That is, each Cree LED chip, together with its surrounding
`package infrastructure, is the equivalent of a “package
`comprising a thermally conductive back and a diode that emits
`light” and a “package comprising a solid state light source.”
`Moreover, given that the evidence of record establishes
`that the prior art fails to teach a claim limitation that is
`not impacted by any expanded scope under DOE, there is clearly
`no need for the academic exercise of a hypothetical claim.
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`For Cree to prevail on the infrequently applied ensnarement
`doctrine, all of the limitations of the asserted claims would
`need to be considered, including the requirement that the
`prior art teach outer-surface heat dissipation protrusions
`“designed to convect heat.” Any conceivable hypothetical
`claim would have this requirement, which OptoLum has
`convincingly demonstrated is absent from the prior art Cree
`relies upon. Cree’s prior art arguments do not even come
`close to rebutting OptoLum’s credible and probative evidence
`that the asserted DOE claims are patentable and do not ensnare
`the presented prior art combinations.
`III. Conclusion
`OptoLum has more than met its burden by a preponderance
`of the evidence that the asserted claims of the ‘303 Patent
`and the ‘028 Patent are patentable over the Arndt, Cao,
`Abdelhafez and the Norlux Hex references, in the combinations
`of those references as argued by Cree. Thus, the proposed
`application of the Doctrine of Equivalents would not ensnare
`the prior art.
`
`
`
`
`
`
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`Dated: October 20, 2021
`
`Respectfully submitted,
`By: /s/ Keith Toms
`Keith Toms
`Robert A. Brooks
`Leah R. McCoy
`MCCARTER & ENGLISH, LLP
`265 Franklin Street
`Boston, MA 02110
`Telephone: (617) 449-6593
`Facsimile: (617)607-9200
`Email: rbrooks@mccarter.com
`
`/s/ Jacob S. Wharton
`Jacob S. Wharton
`NC State Bar No. 37421
`WOMBLE BOND DICKINSON (US) LLP
`One West 4th Street
`Winston-Salem, NC 27101
`Telephone: (336) 747-6609
`Facsimile: (336) 726-6985
`Email: jacob.wharton@wbd-us.com
`
`Attorneys for Plaintiff OptoLum,
`Inc.
`
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`CERTIFICATION UNDER L.R. 7.3(D)
`Under the provisions of L.R. 7.3(d), I certify that the
`foregoing Reply Brief is 3,123 words, less than the 3,125
`permitted by the local rules.
`
`Dated: October 20, 2021
`
`Respectfully submitted,
`/s/ Jacob S. Wharton
`Jacob S. Wharton
`NC State Bar No. 37421
`WOMBLE BOND DICKINSON (US) LLP
`One West 4th Street
`Winston-Salem, NC 27101
`Telephone: (336) 747-6609
`Facsimile: (336) 726-6985
`Email: jacob.wharton@wbd-us.com
`
`
`
`
`
`
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