IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`GREENSBORO DIVISION
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`
`Civil Action No.
`17-cv-00687-WO-JLW
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`OPTOLUM, INC.,
`Plaintiff,
`
`v.
`CREE, INC.,
`Defendant.
`
`
`
`DEFENDANT CREE, INC.’S RENEWED 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 336 Filed 11/08/21 Page 1 of 28
`
`
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`GREENSBORO DIVISION
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`)
`)
`)
`)
`)
`)
`)
`)
`
`Civil Action No.
`17-cv-00687-WO-JLW
`
`OPTOLUM, INC.,
`Plaintiff,
`
`v.
`CREE, INC.,
`Defendant.
`
`
`
`DEFENDANT CREE, INC.’S RENEWED 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 336 Filed 11/08/21 Page 1 of 28
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`TABLE OF CONTENTS
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`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 ............................................. 6
`A. LEGAL STANDARD .................................. 6
`1. Judgment As A Matter Of Law ................ 6
`2. DOE ........................................ 7
`B. OPTOLUM IS ESTOPPED AS A MATTER OF LAW FROM
`RELYING ON DOE TO PROVE INFRINGEMENT OF THE
`SINGLE RING BULBS ............................... 8
`1. The Merit Of OptoLum’s DOE Infringement
`Theory Is Irrelevant To Prosecution
`History Estoppel ........................... 9
`2. Prosecution History Estoppel Is A
`Question Of Law Decided By The Court, Not
`The Jury .................................. 11
`3. OptoLum Improperly Relies On DOE To
`Recapture The Literal Scope Of The
`Subject Matter Disclaimed During
`Prosecution ............................... 12
`4. OptoLum’s DOE Arguments Are Belied By The
`Trial Record Establishing That Packages
`Flow From The Combination of Chips,
`Substrate, And Silicone Lens .............. 16
`5. OptoLum’s Arguments About “Package”
`Expose Their Effort To Recapture The
`Subject Matter Disclaimed ................. 20
`V. CONCLUSION .......................................... 22
`
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`TABLE OF AUTHORITIES
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`Page
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`CASES
`Amgen Inc. v. Coherus BioSciences Inc.,
`931 F.3d 1154 (Fed. Cir. 2019) ...................... 8, 11
`Eli Lilly & Co. v. Hospira, Inc.,
`933 F.3d 1320 (Fed. Cir. 2019) ....................... 7, 8
`Russell v. Absolute Collection Servs., Inc.,
`763 F.3d 385 (4th Cir. 2014) ............................ 6
`Warner Jenkinson Co. v. Hilton Davis Chem., Co.
`520 U.S. 17 (1997) ...................................... 7
`Weisgram v. Marley Co.,
`528 U.S. 440 (2000) ..................................... 7
`Wheatley v. Wicomico Cnty., Maryland,
`390 F.3d 328 (4th Cir. 2004) ............................ 7
`OTHER AUTHORITIES
`Fed. R. Civ. P. 50(a) ........................ 1, 6, 7, 9, 11
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`I.
`
`STATEMENT OF THE NATURE OF THE MATTER
`Defendant Cree Inc. (“Cree”) respectfully renews its
`motion 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.
`II. STATEMENT OF FACTS
`A.
`Claim Construction
`OptoLum alleges that Cree’s Single Ring bulbs infringe
`U.S. Patent Nos. 6,831,303 (“the ‘303 patent”) and 7,242,028
`(“the ‘028 patent”) (collectively, “the asserted patents”).1
`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
`and others of said [LEDs]/[SSLSs] being disposed in a second
`
`
`1 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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`2.
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`3.
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`plane not coextensive with said first plane.”2 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
`
`
`2 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 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 arguments and found 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
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`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.
`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 DOE wherein their theory recaptures subject-
`matter surrendered to obtain allowance during prosecution;
`namely, LED packages disposed in a single plane perpendicular
`to the axis of the ETCM.
`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
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`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’
`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
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`is the doctrine of prosecution history estoppel (“PHE”). 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)
`(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
`Cree recognizes that the issue with respect to PHE has
`been briefed on multiple instances. For the Court’s
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`convenience and to avoid repetition, Cree incorporates those
`briefs3 by reference and focuses on the most salient matters
`beyond what is already in those briefs.
`1.
`The Merit Of OptoLum’s DOE Infringement
`Theory Is Irrelevant To Prosecution
`History Estoppel
`Due to OptoLum’s arguments, much of the discussion
`regarding PHE has revolved around the merits of OptoLum’s
`infringement theory under DOE. That is, whether the Cree
`chips serve substantially the same function, in substantially
`the same way, to achieve substantially the same result as the
`packages. Cree, of course, disputes that, and the evidence
`in this case shows that the chips are not equivalent to
`packages. But that issue is different from PHE, and with
`respect to PHE, OptoLum has effectively offered a circular-
`reasoning defense – they argue that PHE does not apply because
`they rely on DOE for infringement.
`
`
`3 Fact and supporting arguments underlying Cree’s present
`motion are laid out in (1) Cree’s brief in support of its
`MIL #1 (Dkt. 250); (2) Cree’s reply brief in supports of its
`MIL #1 (Dkt. 282); and (3) Cree’s Motion for Judgment As A
`Matter of Law under Federal Rule of Civil Procedure 50(a)
`Regarding Prosecution History Estoppel (Dkt. 324). Cree
`incorporates those filings by reference.
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`For example, the Court asked OptoLum “why do [they] get
`to create two planes off of separate points in the same
`package.” 11/2 Tr. 189. That question appeared to recognize
`the circular nature of OptoLum’s argument – that it can avoid
`its disclaimer with respect to packages in a single plane by
`arguing that the same plane within the same package could be
`broken up under the DOE, all while at the same time asserting
`that the packages consist of single planes (as they do for
`the Multi Ring bulbs). OptoLum’s response was nothing more
`than restating their DOE infringement theory that the chips
`are the equivalent of a packaged LED. Id.
`Whether OptoLum has any proof for a jury to consider if
`the structures are equivalent is completely separate from the
`PHE inquiry. Here, PHE applies because OptoLum’s equivalence
`theory necessarily allows them to recapture the subject
`matter surrendered from the literal scope of claim; namely,
`packages in a single plane perpendicular to the axis of the
`ETCM. The subject matter surrendered from the literal scope
`of the claim here, as OptoLum’s own infringement theories
`recognize, includes the packages in the Single Ring Bulbs.
`And that is precisely what OptoLum seeks to recapture.
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`2.
`
`Prosecution History Estoppel Is A
`Question Of Law Decided By The Court, Not
`The Jury
`OptoLum’s Brief in Opposition To Cree’s Rule 50(a) motion
`attempts to dress the issue presented by Cree’s motion as one
`which concerns factual disputes that should be submitted to
`the jury. Dkt. 331 at 3-4, 8-15. OptoLum is wrong as a
`matter of law.
`The Federal Circuit, in no uncertain terms, has directed
`that “[w]hether prosecution history estoppel applies, and
`thus whether the doctrine of equivalents is available for a
`particular claim limitation is a question of law.” 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)). The issue here is not, as
`OptoLum maintains, whether they have sufficient evidence for
`a jury to decide if they met their burden of proving
`infringement under DOE. Instead, the issue is whether OptoLum
`can rely on DOE to recapture the subject-matter surrendered
`during prosecution – LED packages disposed in a single plane
`perpendicular to the axis of the ETCM. That is a question of
`law.
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`3.
`
`OptoLum Improperly Relies On DOE To
`Recapture The Literal Scope Of The
`Subject Matter Disclaimed During
`Prosecution
`OptoLum’s arguments with respect to prosecution estoppel
`are in direct conflict with this Court’s claim construction
`and the literal scope of the applicant’s clear and unequivocal
`disclaimer during prosecution.
`As an initial matter, OptoLum completely ignores how the
`literal scope of the claims informs the applicant’s
`disclaimer. This Court has already offered the necessary
`guidance about the literal scope of the two-plane limitation
`when it construed its terms. Indeed, replacing “a plurality
`of [LEDs]/[SSLSs]” with the portions of the construction
`relevant to the present issue provides context: “[two or more
`
`packages] carried on said [ETCM] outer surface at least some
`
`of said [packages] being disposed in a first plane and others
`
`of said [packages] being disposed in a second plane not
`coextensive with said first plane.”
`Applying the relevant portion of the Court’s construction
`to the prosecution history further shows the scope of the
`subject matter disclaimed. With the relevant construction
`replaced, the limitation rejected by the Examiner as
`disclosed by Arndt’s Fig. 2 was “[two or more packages]
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`carried on said [ETCM] at least some of said [packages] being
`disposed in a first place and others of said [packages] being
`disposed in a second plane not coextensive with said first
`plane.” DX-20 at p. 142. In response to the rejection, the
`applicant maintained that “[a]ll the LEDs [packages] shown in
`FIG. 2B are in the same plane, i.e., the plane defined by the
`drawing sheet.” DX-20 at p. 119. That was a clear and
`unequivocal disclaimer of a structure wherein “LED [package]
`placement may be described as being in a single plane
`perpendicular to the axis of the elongate thermally
`conductive member.” Dkt. 152 at 23.
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`The Court’s finding of disclaimer and OptoLum’s
`infringement contentions as to the Multi Ring bulbs confirm
`that the literal scope of the two-plane limitation is tethered
`to packages, not individual chips. There are no operative
`allegations that a chip is literally a package. Nor could
`there be on this record. That is why this Court applied its
`construction consistently when it found that Single Ring
`bulbs do not literally infringe the claims. Dkt. 230 at 35.
`Indeed, the Single Ring bulbs, akin to prior art Fig.
`2B. of the ‘819 patent, have packages (annotated in blue and
`red below) in a single plane perpendicular to the axis of the
`ETCM (annotated red below):
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`OptoLum never disputed this Court’s finding with respect
`to Single Ring bulbs. As such, the law of the case is that
`Cree’s LED packages are the accused structure that define the
`literal plane with respect to the alleged infringement of the
`two-plane limitation. This comports with OptoLum’s
`infringement contentions on the Multi Ring bulbs, wherein
`they allege that each Cree package is the accused structure
`that defines the plane in the two-plane limitation.
`Accordingly, it is clear that the literal scope of the
`claims concern the placement of LED packages on the ETCM.
`And while OptoLum continues to assert equivalence between
`packages and chips, there can be no question that the literal
`scope of the disclaimer concerned the placement of LED
`packages with respect to a single plane perpendicular to the
`ETCM. This is precisely the subject matter that OptoLum wants
`to now recapture.
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`4.
`
`OptoLum’s DOE Arguments Are Belied By The
`Trial Record Establishing That Packages
`Flow From The Combination of Chips,
`Substrate, And Silicone Lens
`The record in this case conclusively establishes that
`OptoLum should be estopped under PHE from asserting
`infringement under DOE. As this Court has previously noted,
`“packages . . . flow[] from th[e] substrate.” 10/27 Tr. at
`28:7-8. Packages include the LED chip(s), the silicone lens,
`the mantle of phosphor covering the chip(s), all placed in a
`single ceramic substrate.
`
`
`Dr. Steigerwald’s demonstrative recognized that, in
`Cree’s LEDs, there are no individual chips with distinct
`ceramic substrates. There is one substrate, one phosphor
`layer, and one 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 over the same phosphor layer. 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 attempt to conceptually dismantle this package
`as it exists into an imaginary one is belied by the testimony
`in this case.
`Dr. Steigerwald testified that the “package has one anode
`and one cathode” which is the only “connection to the outside
`world.” 10/26 Tr. at 190. You can only access all eight at
`once. Id. at 190. According to Dr. Steigerwald, the package
`has “one common substrate” which is not divided up into
`different parts. 10/26 Tr. at 196, 199. He also admitted
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`that, from an electrical stand point, considering the
`electrical interfaces between the package and the claimed
`equivalent would be different. He “agree[d] completely
`[that] from a package standpoint” the electrical interface
`operating at 24 volts is significantly different than
`operating at 3.5 volts. 10/26 Tr. at 196. The electrical
`interface is thus not the same. As Dr. Steigerwald admitted,
`applying a 3.5 voltage to the package won’t generate any
`useful light output; “there would be no light generated at …
`3.5 volts.” 10/26 Tr. at 199.
`Mr. Negley testified that “a chip” is like a “little
`cube” and that “a package is what that cube goes into” so you
`can have an anode and a cathode. 11/3 Tr. at 19. Mr. Negley
`also explained that one chip is 3 volts and that the package
`had 10 segments of 24 volts. 11/3 Tr. at 40. Accessing the
`individual chips is not possible. Id. at 101.
`Dr. Bretschneider explained that the substrate is the
`“foundation” of the package. 11/4 Tr. at 198. The heat does
`not flow directly down the way Dr. Steigerwald had suggested.
`Instead, it spreads among the surface. Id. He explained
`that the heat spreads rapidly in all directions:
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`DDX 2-27. He also addressed the behavior of the common
`silicone lens, which he noted behaves as one structure once
`the light arrives to it.
`
`
`Dr. Bretschneider further confirmed the testimonies of
`Dr. Steigerwald and Mr. Negley that the electrical
`connections of the package have one connection to the outside
`world.
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`The phosphor and silicone act as a binder that keeps the chip
`tethered to the substrate. 11/4 Tr. at 189.
`In short, as Dr. Bretschneider testified, the LED chips
`“don’t have their own individual infrastructure” because it
`is impossible to “divide up the package.” Id. at 199. This
`is squarely against OptoLum’s theory that packages can be
`divided up. They can’t.
`5.
`OptoLum’s Arguments About “Package”
`Expose Their Effort To Recapture The
`Subject Matter Disclaimed
`OptoLum accuses Cree of attempting to conflate the term
`“package” within the meaning of the patents with the packages
`in Cree’s bulbs. Dkt. 331 at 15 n.2. OptoLum then goes on
`to maintain that: “As construed, the requirements of a
`‘package’ are that it ‘comprise a thermally conductive back
`and a diode that emits light,’ which the individual diodes
`and
`surrounding
`infrastructure”
`according
`to
`them
`
`
`
`- 20 -
`
`
`
`Case 1:17-cv-00687-WO-JLW Document 336 Filed 11/08/21 Page 23 of 28
`
`
`
`
`“indisputably meet.” Id.4 On its face, OptoLum’s argument
`is basically a new theory that the Single Ring bulbs literally
`meet the claims.
`The Court should reject OptoLum’s eleventh hour attempt
`– made after they rested their case in chief - to recapture
`the subject matter disclaimed with new theories which are not
`even asserted. There is no question that OptoLum has waived
`any assertions of literal infringement of the patents with
`respect to Single Ring bulbs. Yet, the above statement by
`OptoLum cannot be construed to be anything less than a direct
`suggestion that there is literal infringement. Indeed, if
`each chip within the Cee LED package was a “package” as
`OptoLum “indisputably” contends, then OptoLum would have no
`need to resort to DOE.
`This effort exposes what OptoLum has been attempting to
`do throughout these entire proceedings: To mischaracterize
`the PHE issue in order to recapture the literal scope of the
`subject matter they disclaimed. Indeed, this Court has
`already found there are no material issues of material fact
`
`
`4 It is the “package” that has a “thermally conductive
`back.” And here it is clear that the “thermally conductive
`back” is represented by the common substrate of the package.
`
`
`
`- 21 -
`
`
`
`Case 1:17-cv-00687-WO-JLW Document 336 Filed 11/08/21 Page 24 of 28
`
`
`
`
`that the Single Ring bulbs do not literally infringe the
`patents (i.e., that the Cree LED packages in the Single Ring
`bulb are in one single plane). That issue is settled and the
`Court’s holding is consistent with the prosecution history
`disclaimer and the claim constructions. The Court should
`therefore reject OptoLum’s effort to recapture the subject
`matter they disclaimed – 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
`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.
`
`Dated: November 8, 2021 Respectfully submitted,
`
`
`By: /s/ Blaney Harper
`Blaney Harper
`JONES DAY
`51 Louisiana Avenue, N.W.
`Washington, D.C. 20001-2113
`
`
`
`
`
`- 22 -
`
`
`
`Case 1:17-cv-00687-WO-JLW Document 336 Filed 11/08/21 Page 25 of 28
`
`
`
`
`
`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.
`
`
`
`
`
`- 23 -
`
`
`
`Case 1:17-cv-00687-WO-JLW Document 336 Filed 11/08/21 Page 26 of 28
`
`
`
`
`
`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
`
`- 1 -
`Case 1:17-cv-00687-WO-JLW Document 336 Filed 11/08/21 Page 27 of 28
`
`
`
`
`
`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 8, 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 336 Filed 11/08/21 Page 28 of 28
`
`
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