IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`GREENSBORO DIVISION
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Civil Action No.
`17-cv-00687-WO-JLW
`
`OPTOLUM, INC.,
`Plaintiff,
`
`v.
`CREE, INC.,
`Defendant.
`
`
`
`DEFENDANT CREE, INC.’S MOTION FOR JUDGMENT AS A MATTER OF
`LAW UNDER FEDERAL RULE OF CIVIL PROCEDURE 50(A) REGARDING
`PROSECUTION HISTORY ESTOPPEL
`
`
`
`
`Case 1:17-cv-00687-WO-JLW Document 324 Filed 11/02/21 Page 1 of 23
`
`
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`GREENSBORO DIVISION
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Civil Action No.
`17-cv-00687-WO-JLW
`
`OPTOLUM, INC.,
`Plaintiff,
`
`v.
`CREE, INC.,
`Defendant.
`
`
`
`DEFENDANT CREE, INC.’S MOTION FOR JUDGMENT AS A MATTER OF
`LAW UNDER FEDERAL RULE OF CIVIL PROCEDURE 50(A) REGARDING
`PROSECUTION HISTORY ESTOPPEL
`
`
`
`
`Case 1:17-cv-00687-WO-JLW Document 324 Filed 11/02/21 Page 1 of 23
`
`
`
`TABLE OF CONTENTS
`
`
`Page
`
`I. STATEMENT OF THE NATURE OF THE MATTER ................ 1
`II. STATEMENT OF FACTS ................................... 1
`A. CLAIM CONSTRUCTION .............................. 1
`B. THE SINGLE RING PRODUCTS & DOE .................. 5
`III. STATEMENT OF QUESTION PRESENTED ...................... 6
`IV. ARGUMENT ............................................. 7
`A. LEGAL STANDARD .................................. 7
`1. Judgment As A Matter Of Law ................ 7
`2. DOE ........................................ 7
`B. OPTOLUM IS ESTOPPED AS A MATTER OF LAW FROM
`RELYING ON DOE TO PROVE INFRINGEMENT OF THE
`SINGLE RING BULBS ............................... 9
`1. The Prosecution History Disclaimer
`Concerns Packages Disposed In Single
`Plane Perpendicular To The Axis of The
`ETCM ...................................... 10
`2. Cree’s Accused Single Ring Bulbs
`Incorporate The Disclaimed Subject Matter . 11
`3. OptoLum’s DOE Infringement Analysis Is
`Irrelevant to Prosecution History
`Estoppel .................................. 13
`4. OptoLum Erroneously Focuses On Single
`Chips Because Packages Flow From The
`Combined Chips, Substrate, And Silicone
`Lens ...................................... 14
`V. CONCLUSION .......................................... 16
`
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`TABLE OF AUTHORITIES
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`Page
`
`
`CASES
`Amgen Inc. v. Coherus BioSciences Inc.,
`931 F.3d 1154 (Fed. Cir. 2019) ....................... 8, 9
`Conoco, Inc. v. Energy & Env't Int'l, L.C.,
`460 F.3d 1349 (Fed. Cir. 2006) .......................... 9
`Eli Lilly & Co. v. Hospira, Inc.,
`933 F.3d 1320 (Fed. Cir. 2019) .......................... 8
`Elkay Mfg. Co. v. Ebco Mfg. Co.,
`192 F.3d 973 (Fed. Cir. 1999) ..................... 10, 14
`London v. Carson Pirie Scott & Co.,
`946 F.2d 1534 (Fed. Cir. 1991) .......................... 8
`Russell v. Absolute Collection Servs., Inc.,
`763 F.3d 385 (4th Cir. 2014) ............................ 7
`Spectrum Pharm., Inc. v. Sandoz Inc.,
`802 F.3d 1326 (Fed. Cir. 2015) .......................... 8
`
`Trading Technologies Inter., Inc. v. Espeed Int’l,
`Ltd.,
`595 F.3d 1340 (Fed. Cir. 2010) ..................... 10, 14
`Trading Techs. Int’l, Inc. v. Open E Cry, LLC,
`728 F.3d 1309 (Fed. Cir. 2013) .......................... 9
`Warner Jenkinson Co. v. Hilton Davis Chem., Co.
`520 U.S. 17 (1997) ...................................... 8
`Weisgram v. Marley Co.,
`528 U.S. 440 (2000) ..................................... 7
`Wheatley v. Wicomico Cnty., Maryland,
`390 F.3d 328 (4th Cir. 2004) ............................ 7
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`OTHER AUTHORITIES
`Fed. R. Civ. P. 50(a) .................................. 1, 7
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`I.
`
`STATEMENT OF THE NATURE OF THE MATTER
`Defendant Cree Inc. (“Cree”) respectfully moves for
`judgment as a matter of law under Federal Rule of Civil
`Procedure 50(a) that Plaintiff OptoLum, Inc. (“OptoLum”) is
`estopped from relying on the doctrine of equivalents (“DOE”)
`to prove infringement with respect to the Single Ring bulbs.1
`II. STATEMENT OF FACTS
`A.
`Claim Construction
`OptoLum alleges that Cree’s accused Single Ring bulb
`products infringe U.S. Patent Nos. 6,831,303 (“the ‘303
`patent”) and 7,242,028 (“the ‘028 patent”) (collectively,
`“the asserted patents”).2 Both patents claim an elongate
`thermally conductive member (“ETCM”) having an outer surface.
`The asserted patents also include a two-plane limitation.
`The two-plane limitation requires a “plurality of
`[LEDs]/[SSLSs] carried on [the ETCM] outer surface at least
`some of said [LEDs]/[SSLSs] being disposed in a first plane
`
`
`1 Fact and supporting arguments underlying Cree’s present
`motion are laid out in Cree’s Brief in Support of its Motion
`in Limine to Preclude Any Infringement Assertion Concerning
`Single Ring Bulbs. Cree incorporates that brief by reference.
`2 As identified in the Court’s claim construction order,
`the two asserted patents “are largely the same for purposes
`of claim construction. Dkt. 152 at 1 n.1.
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`3.
`
`2.
`
`
`and others of said [LEDs]/[SSLSs] being disposed in a second
`plane not coextensive with said first plane.”3 This Court
`has already issued the following claim constructions with
`respect to this limitation:
`1.
`“a plurality of [LEDs]” means “two or more
`packages, each of which comprise a thermally
`conductive back and a diode that emits light”;
`“a plurality of [SSLSs]” means “two or more
`packages, each of which comprise a solid state
`light source”; and
`“disposed in a second plane not coextensive with
`said first plane” means “disposed in a second
`plane that is not the same as the first plane
`wherein the plurality of LEDs are not disposed in
`a single plane perpendicular to the axis of the
`[ETCM].”
`Dkt. 314 at ¶¶ 2, 11, and 12 (emphasis added).
`In construing the third term, this Court held that the
`‘028 patent applicant had disclaimed a structure wherein “LED
`placement may be described as being in a single plane
`perpendicular to the axis of the elongate thermally
`conductive member.” Dkt. 152 at 23. This disclaimer arose
`because, to obtain allowance, the ‘028 patent applicant
`distinguished the then-pending claims from Fig. 2B of prior
`
`
`3 The ‘028 patent uses the phrase “solid state light
`sources” (“SSLSs”) and the ‘303 patent uses the phrase “light
`emitting diodes” (“LEDs”) instead.
`
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`art U.S. Patent No. 6,848,819 (the “‘819 patent”) (below).
`Dkt. 152 at 21.
`
`
`The Examiner had cited this Fig. 2B as a prior art
`disclosure of SSLSs “that are in a first plane and a second
`plane not coextensive with the first plane.” Id. But, as
`this Court recognized, to gain allowance the applicant
`maintained “that ‘[a]ll the LEDs shown in FIG. 2B are in the
`same plane, i.e., the plane defined by the drawing sheet[,]
`thereby distinguishing the claim invention from the ‘819
`Patent.” Id.
`Despite that distinction, OptoLum initially advanced a
`theory of the two-plane limitation that compared Fig. 2 of
`the asserted with prior art Fig. 2B of the ‘819 patent as
`pictured below:
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`Dkt. 152 at 23 (reproducing Dkt. 140 at 7).
`This Court rejected OptoLum’s theory, finding that their
`theory of meeting the two-plane limitation was “unavailing.”
`Dkt. 152 at 23. Instead, the Court was convinced that Cree’s
`conceptualization (pictured below) was in line with the
`prosecution history:
`
`
`Dkt. 152 at 24. Based on the prosecution history, this Court
`held that the applicant’s argument was a “clear and
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`unequivocal disclaimer” of a structure wherein “LED placement
`may be described as being in a single plane perpendicular to
`the axis of the elongate thermally conductive member.”
`Dkt. 152 at 23.
`B.
`The Single Ring Products & DOE
`The Accused Products are divided into two categories:
`Single Ring bulbs (below-left) and multiple ring bulbs
`(below-right).
`Single Ring Bulb with only
`one package in a single plane
`
`Multiple Ring Bulb with a
`package in a first plane and
`another package in a second
`plane
`
`
`
`
`
`
`After the Court’s claim construction, Cree moved for
`summary judgment of non-infringement concerning the Single
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`Ring bulbs. Dkt. 190 at 4-6. The Court held there was no
`literal infringement of the two-plane limitation for the
`single ring bulbs. Dkt. 230 at 35. It found that “there is
`no genuine issue of material fact that the Single Ring bulbs
`do not literally infringe.” Id.
`Prior to trial, Cree filed a motion in limine to preclude
`any infringement assertions concerning the Single Ring bulbs.
`Dkt. 249 (MIL #1). The Court determined that the issue raised
`appeared to be more appropriately addressed at the conclusion
`of OptoLum’s evidence and took the issue under advisement.
`Dkt. 315 at 12-14.
`At the October 27 hearing, the Court reminded the parties
`to be prepared to address the DOE issues again at the close
`of OptoLum’s evidence, including prosecution estoppel and
`ensnarement. 10/27 RTr. at 27-28.
`III. STATEMENT OF QUESTION PRESENTED
`Whether OptoLum is estopped as a matter of law from
`asserting that the Single Ring bulbs infringe the asserted
`patents under the DOE wherein their theory would recapture
`subject-matter surrendered during prosecution to obtain
`allowance over prior art.
`
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`IV. ARGUMENT
`A.
`Legal Standard
`1.
`Judgment As A Matter Of Law
`Judgment as a matter of law is appropriate where “a party
`has been fully heard on an issue during a jury trial and the
`court finds that a reasonable jury would not have a legally
`sufficient evidentiary basis to find for the party on that
`issue.” Fed. R. Civ. P. 50(a)(1); Russell v. Absolute
`Collection Servs., Inc., 763 F.3d 385, 391 (4th Cir. 2014).
`“Such a motion is properly granted if the nonmoving party
`failed to make a showing on an essential element of his case
`with respect to which he had the burden of proof.” Wheatley
`v. Wicomico Cnty., Maryland, 390 F.3d 328, 332 (4th Cir. 2004)
`(internal citations and quotations omitted). Rule 50(a)
`allows the trial court to remove issues from the jury's
`consideration “when the facts are sufficiently clear that the
`law requires a particular result.” Weisgram v. Marley Co.,
`528 U.S. 440, 448 (2000) (internal quotations omitted).
`2.
`DOE
`Under DOE, “a product or process that does not literally
`infringe upon the express terms of a patent claim may
`nonetheless be found to infringe if there is ‘equivalence’
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`between the elements of the accused product or process and
`the claim elements of the patented invention.” Warner
`Jenkinson Co. v. Hilton Davis Chem., Co. 520 U.S. 17, 21
`(1997). Proof of infringement under “the doctrine of
`equivalents is ‘the exception, however, not the rule.’” Eli
`Lilly & Co. v. Hospira, Inc., 933 F.3d 1320, 1330 (Fed. Cir.
`2019) (quoting London v. Carson Pirie Scott & Co., 946 F.2d
`1534, 1538 (Fed. Cir. 1991)). “[C]ourts have placed important
`limitations on a patentee’s ability to assert infringement
`under the doctrine of equivalents.” Id. One such limitation
`is the doctrine of prosecution history estoppel. Id.
`“Whether prosecution history estoppel applies, and thus
`whether the doctrine of equivalents is available for a
`particular claim limitation is a question of law reviewed de
`novo.” Amgen Inc. v. Coherus BioSciences Inc., 931 F.3d 1154,
`1159 (Fed. Cir. 2019)(quoting Spectrum Pharm., Inc. v. Sandoz
`Inc., 802 F.3d 1326, 1337(Fed. Cir. 2015)).
`“Prosecution history estoppel applies as part of an
`infringement analysis to prevent a patentee from using the
`doctrine of equivalents to recapture subject matter
`surrendered from the literal scope of a claim during
`prosecution.” Amgen Inc., 931 F.3d at 1159 (Fed. Cir. 2019)
`
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`(quoting, Trading Techs. Int’l, Inc. v. Open E Cry, LLC, 728
`F.3d 1309, 1322 (Fed. Cir. 2013)). To create estoppel, “the
`prosecution history must evince a clear and unmistakable
`surrender of subject matter.” Id. at 1159 (quoting Conoco,
`Inc. v. Energy & Env't Int'l, L.C., 460 F.3d 1349, 1364 (Fed.
`Cir. 2006)).
`B.
`OptoLum Is Estopped As A Matter Of Law From
`Relying On DOE To Prove Infringement Of The
`Single Ring Bulbs
`This Court has already made three legal conclusions
`central to this motion: (1) “a plurality of [LEDs or SSLSs]”
`means, in relevant part, “two or more packages”; (2) the
`applicant disclaimed a structure “in which LED placement may
`be described as being in a single plane perpendicular to the
`axis of the elongate thermally conductive member”; and
`(3) there is no genuine issue of material fact that Single
`Ring bulbs do not literally infringe the two-plane limitation
`– that is, LED placement in the Single Ring bulbs may be
`described as being in a single plane perpendicular to the
`axis of the asserted ETCM. As explained below, these holdings
`now preclude OptoLum’s attempt to wield DOE to recapture a
`disclaimed subject matter.
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`1.
`
`Disclaimer
`History
`Prosecution
`The
`Concerns Packages Disposed In Single Plane
`Perpendicular To The Axis of The ETCM
`This Court has already found there was a “clear and
`unequivocal disclaimer” concerning the two-plane claim
`limitation. Dkt. 152 at 21-22. Where disclaimer of claim
`scope has been made, “[p]rosecution history estoppel prevents
`operation of the doctrine of equivalents from expanding a
`claim limitation to include subject matter surrendered during
`the patent’s prosecution.” Elkay Mfg. Co. v. EBCO Mfg. Co.,
`192 F. 3d 973, 981 (Fed. Cir. 1999); Trading Technologies
`Inter., Inc. v. Espeed Int’l, Ltd., 595 F.3d 1340, 1357 (Fed.
`Cir. 2010) (holding as matter of law that because patentee
`surrendered claim scope during prosecution, prosecution
`history estoppel precludes coverage under DOE of that
`surrendered claim scope).
`This Court identified the disclaimed subject matter as a
`structure “in which LED placement may be described as being
`in a single plane perpendicular to the axis of the elongate
`thermally conductive member.” Dkt. 152 at 22-23. The LED
`placement depends on what constitutes the LEDs (or SSLSs).
`Here, the Court’s constructions informs that a plurality of
`LEDs or SSLSs means, in relevant part, “two or more packages.”
`
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`The physical element placed upon the ETCM is therefore the
`“package” -- not chips as OptoLum suggests. It is the
`placement of that “package” with respect to the ETCM that
`informs the evaluation of the two-plane limitation.
`2.
`Cree’s Accused Single Ring Bulbs
`Incorporate The Disclaimed Subject Matter
`Applying the Court’s construction, in view of the
`applicant’s disclaimer, correctly identifies the Single Ring
`bulb structures as one wherein the placement of two or more
`packages are located on the ETCM such that the “placement may
`be described as being in a single plane perpendicular to the
`axis” of the ETCM. That is precisely the subject matter the
`Court found to be disclaimed.
`The court has already found as a matter of law that there
`is no genuine issue of material fact that the Single Ring
`bulbs have LED packages placed around a tubular heat sink
`such that the packages have a placement which may be described
`as being in a single plane perpendicular to the axis of the
`ETCM. That finding was the basis for the conclusion on
`summary judgment that the Single Ring bulbs do not literally
`infringe the two-plane limitation.
`The Court’s holding of no literal infringement
`necessarily recognized that the LEDs in Cree’s single ring
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`bulbs were arranged in a single plane perpendicular to the
`axis of the ETCM. Mere inspection of the Single Ring bulbs
`themselves confirms as much.
`The Single Ring bulbs, akin to prior art Fig. 2B. of the
`‘819 patent, have one package per LED in a single plane
`perpendicular to the axis of the ETCM:
`
`
`
`
`The LED packages are placed on the metal ceramic circuit
`board which is then wrapped around the heat sink. The figure
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`above shows the LED packages mounted in a straight line (red).
`It is that line of LED packages (red), wrapped around the
`tubular heat sink, that forms the single plane perpendicular
`to the axis of the heat sink. The structure in Cree’s Single
`Ring bulbs, that forms a single plane perpendicular to the
`axis of the heat sink, is precisely the subject matter this
`Court found to be disclaimed.
`3.
`OptoLum’s DOE Infringement Analysis Is
`Irrelevant to Prosecution History
`Estoppel
`Having disclaimed the single ring LED placement as a
`matter of law, Optolum is now precluded from recapturing that
`same subject matter through assertion of the doctrine of
`equivalents. See e.g., Elkay Mfg. Co. v. EBCO Mfg. Co., 192
`F. 3d 973, 981 (Fed. Cir. 1999); Trading Technologies Inter.,
`Inc. v. Espeed Int’l, Ltd., 595 F.3d 1340, 1357 (Fed. Cir.
`2010) (holding as matter of law that because patentee
`surrendered claim scope during prosecution, prosecution
`history estoppel precludes coverage under DOE of that
`surrendered claim scope).
`OptoLum’s DOE infringement arguments concerning the two-
`plane limitation hinge on their characterization that each
`Chip (plus surrounding infrastructure) used in the package is
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`a separate LED. OptoLum’s contentions are misdirected.
`Infringement is separate from, and wholly irrelevant to,
`prosecution history estoppel. Contrary to an infringement
`argument, prosecution history estoppel is not an analysis of
`what is claimed. Rather, as explained above, estoppel depends
`on what has been disclaimed. The only question for
`prosecution history estoppel is whether the singe ring bulbs
`incorporate the disclaimed structure. That is, does the
`feature of the Accused Product – against which the doctrine
`of equivalents is asserted – incorporate what has been
`disclaimed.
`Here, for the reasons stated above, there is no question
`that the structure of the Cree single ring bulbs is precisely
`the same structure what was disclaimed. Indeed, the Court
`has Court has already found as a matter of law that the single
`ring bulbs do not incorporate a placement of LEDs that
`literally infringe the two-plane limitation. OptoLum is,
`therefore, precluded from making its DOE infringement
`argument concerning the two-plane limitation against the Cree
`Single Ring bulbs.
`4.
`OptoLum Erroneously Focuses On Single
`Chips Because Packages Flow From The
`Combined Chips, Substrate, And Silicone
`Lens
`
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`During the October 27 hearing, the Court noted that
`“packages . . . flow[] from th[e] substrate.” 10/27 RTr. at
`28:7-8. That is correct. It comports with the construction
`of two or more packages. A package consists of the LED
`chip(s), and a single silicone lens all placed on a single
`ceramic substrate. That is the structure of the LED package.
`
`
`Indeed, even Dr. Steigerwald’s own demonstrative
`recognized that, in Cree’s LEDs, there are no individual chips
`with distinct ceramic substrates. There is one substrate
`(and silicone lens) for all the chips.
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`PDX 2.20. All of the chips are in the same package held
`together by the same ceramic substrate and the same silicone
`lens. These are the combined components that make up the
`package which, according to the two-plane limitation, must be
`placed in at least two planes.
`OptoLum’s theories seek to conceptually dismantle the
`package as it exists into an imaginary one divorced from its
`physical construction. The facts of this case conclusively
`show that the multiple chips are not in separate packages -
`they are collectively housed together in a single package
`comprised by a single common ceramic substrate and common
`silicone lens. That is the structure which is placed on the
`ETCM and from which the two-plane limitation must be examined.
`This is consistent with the Court’s claim constructions and
`the applicant’s prosecution history disclaimer. To hold
`otherwise would permit OptoLum to recapture the subject
`matter disclaimed – placement of LED packages described as
`being in a single plane perpendicular to the axis of the ETCM.
`V.
`CONCLUSION
`For the foregoing reasons, OptoLum is estopped as a
`matter of law from relying on DOE to prove their infringement
`allegations concerning the single ring bulbs. Because a jury
`
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`should be precluded from finding that the single ring bulbs
`infringe the asserted patents, Cree respectfully requests
`that this Court grants its motion and enter judgment as a
`matter of law that the single ring bulbs do not infringe the
`asserted patents.
`
`
`
`Respectfully submitted, November 1, 2021.
`
`/s/ Blaney Harper
`Blaney Harper
`JONES DAY
`51 Louisiana Avenue, N.W.
`Washington, D.C. 20001-2113
`Telephone: (202) 879-3939
`Facsimile: (202) 626-1700
`Email: bharper@jonesday.com
`/s/ Peter D. Siddoway
`Peter D. Siddoway
`NC State Bar No. 45647
`SAGE PATENT GROUP
`4120 Main at North Hills St.,
`Suite 230
`Raleigh, NC, 27609
`Telephone: (984) 219-3358
`Facsimile: (984) 538-0416
`Email: psiddoway@sagepat.com
`
`Attorneys for Defendant Cree, Inc.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`GREENSBORO DIVISION
`
`OPTOLUM, INC.,
`Plaintiff,
`
`Civ. Action No. 1:17-cv-00687
`
`v.
`CREE, INC.,
`Defendant.
`
`
`CERTIFICATE OF WORD COUNT
`I hereby certify that the foregoing complies with the
`limitations set forth in Local Rule 7.3(d) by not exceeding
`6,250 words, including the body of the memorandum, headings
`and footnotes, but excluding the caption, signature lines,
`certificate of service, cover page, and index.
`
`/s/ Peter D. Siddoway
`Peter D. Siddoway
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`OPTOLUM, INC.,
`Plaintiff,
`
`Civ. Action No. 1:17-cv-00687
`
`v.
`CREE, INC.,
`Defendant.
`
`
`CERTIFICATE OF SERVICE
`I hereby certify that on November 2, 2021, I
`electronically filed the foregoing with the Clerk of the
`Court using the CM/ECF system, which will send notification
`to counsel of record.
`
`/s/ Peter D. Siddoway
`Peter D. Siddoway
`
`
`
`
`
`- 1 -
`Case 1:17-cv-00687-WO-JLW Document 324 Filed 11/02/21 Page 23 of 23
`
`
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