throbber
Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 1 of 154
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`IN THE UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF NORTH CAROLINA
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`)
`
`
`OPTOLUM, INC., )
`
` Greensboro, North Carolina )
` Plaintiff, November 9, 2021
` )
` vs. )
`
`)
`CREE, INC., )
`
` Case No. 1:17CV687 )
` Defendant. )
`_________________________________ )
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`
`
`TRANSCRIPT OF TRIAL DAY 9
`BEFORE THE HONORABLE WILLIAM L. OSTEEN, JR.
`UNITED STATES DISTRICT JUDGE
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`APPEARANCES:
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`For the Plaintiff: LEAH R. MCCOY
`LEIGH J. MARTINSON
`MCCARTER & ENGLISH, LLP
`265 FRANKLIN STREET
`BOSTON, MA 02110
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`
`
`JACOB S. WHARTON
`WOMBLE BOND DISKINSON (US) LLP
`1 W. 4th STREET
`WINSTON-SALEM, NC 27101
`
`
`For the Defendant: BLANEY HARPER
`JONES DAY
`51 LOUISIANA AVE., N.W.
`WASHINGTON, DC 20001
`
`
`
`PETER D. SIDDOWAY
`SAGE PATENT GROUP
`4242 SIX FORKS ROAD, SUITE 1550
`RALEIGH, NC 27609
`
`Joseph B. Armstrong, FCRR
`Court Reporter:
` 324 W. Market, Room 101
`Greensboro, NC 27401
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`
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`Proceedings reported by stenotype reporter.
`Transcript produced by Computer-Aided Transcription.
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`November 9, 2021 - Trial Day 9
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`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 2 of 154
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`I N D E X
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`CLOSING ARGUMENT BY MR. MARTINSON
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`CLOSING ARGUMENT BY MR. HARPER
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`REBUTTAL ARGUMENT BY MR. MARTINSON
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`INSTRUCTIONS BY THE COURT
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`VERDICT
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`November 9, 2021 - Trial Day 9
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`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 3 of 154
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`November 9, 2021
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`(At 9:14 a.m., proceedings commenced.)
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`(Defendant present.)
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`THE COURT: All right. We'll turn to the
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`instructions in a minute. I want to make sure I'm clear on the
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`Defendant's position on an issue.
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`So OptoLum filed briefs yesterday on their various
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`motions to dismiss, and one of them was a motion to dismiss
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`claims that the patents are not invalid for obviousness, and
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`the principal point of that motion is that with respect to the
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`Abdelhavez Norlux Hex combination, no question but
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`Bretschneider testified that it was obvious that the patent
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`technology was obvious in light of those two. But then on
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`cross-examination, as the Plaintiff points out in the brief, he
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`testified:
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`"So if I put Abdelhavez together with Norlux Hex,
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`it's still going to be missing the heat dissipation protrusion
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`per your previous testimony, right?
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`Answer: Correct.
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`So it's not obvious in light of that specific
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`combination, correct?
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`Answer: That claimed element is not obvious."
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`And then further:
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`"So all the claims are valid in light of that
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`combination, correct?
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`November 9, 2021 - Trial Day 9
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`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 4 of 154
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`And the answer: If that's where the claim element
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`was in Claim 1 of the '303 patent, yes."
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`And the Claim 1 of the '303 patent does say: If said
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`elongate thermally conductive member comprises one or more heat
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`dissipation protrusions, at least one of said heat dissipation
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`protrusion being carried on said elongate member outer surface.
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`Do you want to be heard any further? I'm not asking
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`you to concede in any way, I just want to know if there's
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`anything --
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`MR. HARPER: I don't want to be heard any further,
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`Your Honor.
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`THE COURT: All right. Then I'm not dismissing
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`obviousness, but I am going to strike the Abdelhavez Norlux
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`Hex, submit the other to the jury, and we'll address it further
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`depending on what the jury does with the other reference. I
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`understand your position, but I'm going to let the jury address
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`that.
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`All right. Two big issues. One's pretty
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`straightforward: Double patenting. I'll be the first to
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`acknowledge, it's pretty tenuous, but I went back and looked
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`back at claim construction, looked back at the evidence in the
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`case, and I think "a solid-state light source" is different
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`from "an LED package." I think it's a broader category to
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`include not simply light emitting diodes but laser emitting
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`diodes and various other light sources.
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`November 9, 2021 - Trial Day 9
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`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 5 of 154
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`So in terms of double patenting, I'm going to find
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`with respect to the construction of the term "solid-state light
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`source" -- further press that that's a broader category, and
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`I'll eventually enter a written order to that effect. But at
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`this point I'm not -- I don't intend to submit the double
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`patenting issue to the jury because I'm finding under -- as a
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`matter of law under claim construction that "LED" and "double
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`patenting" are two different things.
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`I think there's a very good argument that the written
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`description is insufficient. I'm not dismissing that
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`invalidity claim. That will go to the jury. I think persons
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`of ordinary skill in the art, there's been different testimony
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`given. I think there are issues of fact as to what someone
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`would have understood from the written description, and so I'm
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`leaving that one in place.
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`The big issue, and the issue that's been hanging over
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`this case since we got to trial, is the question of whether or
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`not prosecution history estoppel bars an infringement claim as
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`to the single-ring bulbs, and that's a tough issue. Both sides
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`make good arguments on it. The time has come -- I've tried to
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`figure out a way that I could delay issuing a decision on this,
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`but there's no good way to -- either way I go, there's no good
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`way to break up the issues to the jury.
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`If I deny the motion at this point, submit all -- the
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`doctrine of equivalents to the jury and later decide finally
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`November 9, 2021 - Trial Day 9
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`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 6 of 154
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`that the doctrine of equivalents -- I mean the prosecution
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`history estoppel denies it, then we're stuck with a damages
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`award that will have to be retried.
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`On the other hand, if I grant the motion, submit only
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`the multi-ring bulbs to the jury for disposition, and it turns
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`out later for whatever reason I'm wrong about that, then we've
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`got to have -- I think we would have to have a new trial on the
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`single-ring bulbs.
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`So there's no -- unfortunately, for purposes of
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`judicial economy and efficiency, and to give the parties,
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`whether my decision is right or wrong, a fair opportunity to
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`not have to retry the case -- I mean, there's no question that
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`patent cases are demanding on the lawyers. They're expensive
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`in terms of witnesses, and my general approach is to do as much
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`as I can to give alternate possibilities so that a retrial can
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`be avoided, but I don't see any way to do that here. I have to
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`make a decision.
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`And, ultimately, I conclude that the single-ring
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`bulbs do not infringe under prosecution history estoppel. I
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`have to rule the way that I think the law requires, and,
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`ultimately, as much as I -- I hope that I'm right because I
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`understand the problems to the parties if I'm wrong about it.
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`But if you go back to the original order, Markman order, that
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`is, and review what I found, and I believe properly, certainly
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`reasonable minds can disagree, that there was a disavowal of a
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`November 9, 2021 - Trial Day 9
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`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 7 of 154
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`plane defined by one -- essentially one dimension, the plane of
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`the paper, so to speak, as was discussed, the single-ring bulbs
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`and their -- specifically, the packages are in a single plane.
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`Hindsight's always 20/20, and there's certainly ways
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`to do things better, and I'm not entirely happy with -- even
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`though my claim construction relies upon the parties' proposed
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`constructions for the most part, I'm not happy with the way
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`things have worked out.
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`And I will say again, I think Mr. York really -- I
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`won't say credibly, that's for the jury to decide -- but very
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`accurately addressed a problem in this case yesterday, and that
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`is within the engineering community, and within the parameters
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`of this case, the term "LED" has been used to define an actual
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`diode, if that's what that little chip without any power
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`attached to it is, and a package, and it's really confusing
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`overall as to what's going on. But I think the key in my mind
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`in terms of both the Markman order as well as the prosecution
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`history estoppel is that the product, the LED, if that's what
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`we want to call it, has to emit light, and that, in turn, means
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`we're looking at a package as opposed to a diode.
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`And here, I looked back at the '819 patent, which was
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`attached as an -- I pulled this one as an attachment from
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`York's binder that I have, and if you read that over:
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`"Background of the invention. The present invention
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`is directed to LED light emitting diode arrangements. In
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`November 9, 2021 - Trial Day 9
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`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 8 of 154
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`particular, the present invention is directed to LED
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`arrangements that can be built into a lamp housing or located
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`in exterior lights of motor vehicles."
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`The key to both solid-state light source and light
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`emitting diode is the fact that the product has to emit light,
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`which, in turn, means that it is in a package, a mechanical --
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`at a minimum, a mechanical structure and a power supply,
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`whether that's a PCB board -- whether that's a printed circuit
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`board or something else, it has to have a power supply. It has
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`to have an anode and cathode so the power runs in one
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`direction. That is a package.
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`There's no doubt in my mind, whether it's called an
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`LED or a package, that what's disclosed and discussed in the
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`'819 patent as LEDs in a single plane are LED packages in a
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`single plane, and, as a result, that -- I find that particular
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`arrangement of LEDs was disclaimed during the patent history
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`giving meaning to the two-plane limitation, and those LED
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`packages disclosed in the '819 packet -- patent are arranged in
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`a single plane around that -- we'll call it -- what did they
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`call it in the '819 patent? They called it a cooling member --
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`was arranged as shown in that figure that was the subject of
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`the patent history for the '028 patent.
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`So the argument -- the law is pretty clear in terms
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`of prosecution history estoppel. We've looked at a number of
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`cases, Festo versus Shoketsu, that's a 2000 Supreme Court case,
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`November 9, 2021 - Trial Day 9
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`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 9 of 154
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`and I think the parties have fairly addressed the argument.
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`The Plaintiff contends based upon the testimony of --
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`why am I drawing a blank -- Dr. Steigerwald -- Dr. Steigerwald
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`that the -- each individual LED chip within the packages
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`arranged on the single-ring bulb constitutes a separate
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`package, but there is one mechanical structure and one power
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`supply to that particular package. And when dealing with LED
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`packages -- frankly, the multi-chip LED packages have been
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`referred to by the experts as multi-chip packages throughout
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`the course of this trial, but that mechanical -- one mechanical
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`substrate and one power supply in my mind also define what
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`constitutes a package for purposes of these patents.
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`Specifically, in Arndt, unless somebody tells me otherwise,
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`those are light emitting devices, which means each has a power
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`supply, an individual power supply, as well as a mechanical
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`structure upon which the LED is mounted.
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`And so, as a result, I find in terms of prosecution
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`history estoppel that to allow the doctrine of equivalents in
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`this case to recapture -- I won't say that -- to allow the
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`doctrine of equivalents to be used to find that the single-ring
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`bulbs infringe would, in turn, allow the Plaintiff to recapture
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`that single plane alignment of LED packages that was disclosed
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`in '819 patent and disavowed in the prosecution history.
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`So the doctrine of equivalents claim will be
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`dismissed or not submitted to the jury.
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`November 9, 2021 - Trial Day 9
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`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 10 of 154
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`I'm not apologizing for my ruling. I'm ruling the
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`way I think -- I think the not only within the industry, but
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`also within the parameters of this trial, the terms "LED" and
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`"LED packages" have been used in many respects interchangeably.
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`It is very confusing. I think the jury probably has an
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`understanding of what constitutes a package as well an LED
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`chip, having heard the testimony that they've heard. But,
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`ultimately, the key is whether it's a solid-state light source
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`or whether it's an LED that emits light, under either
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`definition, that requires a package with a power source, and
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`both the structure and the power source are a component of an
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`LED package when that package, solid-state light source or LED
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`package, is used to emit light as taught by both '819 patent,
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`the '303 patent, and the '028 patents, and, therefore, that's
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`my finding.
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`All right. So those will not go to the jury.
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`Anything -- let's turn to the notice briefly. Mr. Harper, your
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`argument yesterday in terms of subjective intent was you didn't
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`mind there being an instruction included, but you didn't want
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`to it cause some confusion as to "configured to." I think what
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`I proposed here is a correct statement of the law, but do you
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`have any comments to that?
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`MR. HARPER: Yes. The construction of "configured
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`to" has been, for quite a while, "specifically designed to."
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`That is in the instructions as they exist, and what I think the
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`November 9, 2021 - Trial Day 9
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`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 11 of 154
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`proposed language here does is, in effect, take that language
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`out of the construction.
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`Now, I could live with what you have if at the end of
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`your statement you said "as construed by the Court." But I
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`think to leave it the way it is a --
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`THE COURT: Oh, meets the claim language as construed
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`by the Court?
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`MR. HARPER: Yes.
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`THE COURT: I don't have a problem with that.
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`MS. McCOY: If I can just read it quickly.
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`THE COURT: Okay.
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`MS. McCOY: We don't have any objections to that.
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`THE COURT: I think that's a fair point.
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`All right. I was going to put this in what was
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`page 35 where I went through independent and dependent claims
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`and made a couple comments toward the end about -- there's a
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`paragraph "You must compare Cree's accused products directly to
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`the claims of the '303 and '028. You've heard evidence about
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`the commercial prototype product, Cree's accused products, but
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`you may not decide the issue of infringement by comparing the
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`accused products to the commercial prototype. Instead, you
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`must focus your infringement analysis on the patent claims in
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`Cree's accused products," and I thought that next paragraph
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`kind of dovetailed with that pretty well.
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`MR. HARPER: That's fine.
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`November 9, 2021 - Trial Day 9
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`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 12 of 154
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`MS. McCOY: No objection.
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`THE COURT: All right. Anything else I need to
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`address with the instructions?
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`MS. McCOY: Has Your Honor made a decision on the
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`instruction on page 53 regarding prior art?
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`THE COURT: I think I did. Hang on. I've got a
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`note. Where is it? Oh, yeah, page 53. So, obviously,
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`Abdelhavez and Norlux Hex will come out.
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`That last part, I do -- I agree with the Plaintiff on
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`that, that you're inviting a comparison to written -- to other
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`prior art, and the other prior art hasn't been presented, so
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`I'm just taking it out.
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`MS. McCOY: Thank you, Your Honor.
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`THE COURT: Yep. And then on page -- okay. All
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`right. Let me go to the paragraph above that on page 53:
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`"Second, you must decide the scope and content of the
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`prior art."
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`The instruction says, and nobody raised this:
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`"OptoLum and Cree have stipulated that the Zhang
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`reference combined with Cao should be included in the prior art
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`and used to decide the validity of the claims. In order to be
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`considered prior art, the '303 and '028 patents, those
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`references must be reasonably related to the claimed invention,
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`reasonably related if it is the same field."
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`So I think the agreement is only that it is prior art
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`November 9, 2021 - Trial Day 9
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`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 13 of 154
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`and it's within the same field, so I was actually concerned,
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`but then I decided that was okay. But I wanted to call that to
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`the parties' attention directly.
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`MS. McCOY: So I would only say, Your Honor, that we
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`agree that it is -- that they -- that they were -- that their
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`priority dates are earlier than ours, but I don't know that we
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`agree that they're necessarily in the related field. I think
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`that's a question for the jury.
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`THE COURT: What do you say to that, Mr. Harper? I
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`think that's an issue in the case, so that's why I called it.
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`12
`
`MS. McCOY: Thank you.
`
`MR. HARPER: I believe that they are definitely, you
`
`13
`
`know, related prior art because they both deal with light
`
`14
`
`sources. The claim is to a light source, as we've heard a lot
`
`15
`
`of. So I think that -- I think that the language as it sits is
`
`16
`
`fine.
`
`17
`
`MS. McCOY: I would only just add that the parties
`
`18
`
`have not stipulated to that. That's a question for the jury.
`
`19
`
`THE COURT: All right. So this is what I'm going to
`
`20
`
`say:
`
`21
`
`Second, you must decide the scope and content of the
`
`22
`
`prior art. OptoLum and Cree agree that the Zhang reference
`
`23
`
`combined with the Cao reference is prior art in that it -- that
`
`24
`
`they are references that existed prior to the '303 and the '028
`
`25
`
`patents.
`
`November 9, 2021 - Trial Day 9
`
`

`

`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 14 of 154
`
` 14
`
` 1
`
`The parties dispute whether these references are
`
` 2
`
`reasonably related to the claimed invention. A reference is
`
` 3
`
`reasonably related if it is in the same field as the claimed
`
` 4
`
`invention or it's from another field to which a person of
`
` 5
`
`ordinary skill in the field would look to solve a known
`
` 6
`
`problem.
`
` 7
`
`MS. McCOY: So, Your Honor, my only issue with that
`
` 8
`
`is that -- and this may be -- this may be just nitpicking, but
`
` 9
`
`using the phrase "prior art," "prior art" is a term of art. So
`
`10
`
`we have not stipulated that they are prior art, but only that
`
`11
`
`they are references that were existing at the time.
`
`12
`
`13
`
`THE COURT: Okay.
`
`"OptoLum and Cree agree that the Zhang reference
`
`14
`
`combined with Cao are references that existed prior to the '303
`
`15
`
`and '028 patent."
`
`16
`
`Then you can argue whatever you want to argue in
`
`17
`
`terms of field or not.
`
`18
`
`MR. HARPER: Well, because they existed prior, they
`
`19
`
`meet the statutory definition of prior art.
`
`20
`
`THE COURT: The dispute is over whether they're in
`
`21
`
`the same field.
`
`22
`
`MR. HARPER: Well, that may be, but that's -- that's
`
`23
`
`a dispute that goes to the obviousness question. It's not a
`
`24
`
`dispute about whether or not it meets the definition of prior
`
`25
`
`art under the statutory scheme.
`
`November 9, 2021 - Trial Day 9
`
`

`

`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 15 of 154
`
` 15
`
` 1
`
`MS. McCOY: Well, there is a definition of "prior
`
` 2
`
`art" at the end of the instructions that includes "in the field
`
` 3
`
`of the claimed invention for which a patent is being sought,"
`
` 4
`
`and that -- we don't stipulate to that definition for those
`
` 5
`
`references.
`
` 6
`
`THE COURT: All right. I think there's a factual --
`
` 7
`
`or there is a dispute -- the bottom line is the parties haven't
`
` 8
`
`agreed as to whether or not this is prior art in the sense of
`
` 9
`
`whether it's reasonably related to the claimed invention, and
`
`10
`
`so I'm going to let the jury decide that. Testimony's been
`
`11
`
`offered both way in the case.
`
`12
`
`13
`
`All right. I'll make those changes. Yes, ma'am?
`
`MS. McCOY: Sorry. In light of Your Honor's ruling
`
`14
`
`with regard to the doctrine of equivalents, we would request an
`
`15
`
`instruction explaining to the jury that they've heard testimony
`
`16
`
`regarding the single-ring bulb. That's not in the case
`
`17
`
`anymore, but that has no bearing on the infringement of the --
`
`18
`
`THE COURT: General -- I forgot to mention that. I
`
`19
`
`don't know where you want it, but usually I'll put something in
`
`20
`
`that will say -- somewhere in the infringement section:
`
`21
`
`"As to infringement, you are only to consider the
`
`22
`
`multi-ring bulbs. The single-ring bulbs are not an issue for
`
`23
`
`your consideration, and you are not to speculate -- or consider
`
`24
`
`or speculate as to why they may be."
`
`25
`
`MS. McCOY: And just as a reminder from Your Honor's
`
`November 9, 2021 - Trial Day 9
`
`

`

`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 16 of 154
`
` 16
`
` 1
`
`instructions with respect to the open air agreements, that's
`
` 2
`
`not a thing that the attorneys in closing can comment on.
`
` 3
`
`THE COURT: Um-um. Nope, nobody -- I'll instruct the
`
` 4
`
`jury they're not to consider or speculate on that, and I better
`
` 5
`
`not hear any argument on it.
`
` 6
`
` 7
`
`MS. McCOY: Thank, Your Honor.
`
`THE COURT: All right. We'll be in recess until I'm
`
` 8
`
`going to say until about ten after.
`
` 9
`
`10
`
`11
`
`(At 9:42 a.m., break taken.)
`
`(At 10:22 a.m., break concluded.)
`
`THE COURT: All right. Ms. Wilson is going to hand
`
`12
`
`out a copy of the instructions for both sides.
`
`13
`
`MR. WHARTON: Your Honor, if I could just note for
`
`14
`
`the record, OptoLum has provided the Court with a thumb drive
`
`15
`
`from all of our admitted exhibits and Plaintiff's
`
`16
`
`demonstratives per the Court's request. We just needed to get
`
`17
`
`that on the record.
`
`18
`
`19
`
`THE COURT: All right. Have you all done that yet?
`
`MR. HARPER: We have not. We're in the process of
`
`20
`
`doing it. We've been talking with Ms. Welch --
`
`21
`
`22
`
`THE COURT: Just make sure -- yeah.
`
`MR. HARPER: It will get done by the end of the day,
`
`23
`
`I believe.
`
`24
`
`THE COURT: All right. Page 21 -- yeah, you're going
`
`25
`
`to need just a minute, and then you can have your expert's
`
`November 9, 2021 - Trial Day 9
`
`

`

`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 17 of 154
`
` 17
`
` 1
`
`review. Page 21, second full paragraph, midway down:
`
` 2
`
`"Also as I will explain further, the Cree products
`
` 3
`
`that are alleged to infringe are the multiple-ring lightbulbs.
`
` 4
`
`The claim of infringement as to the single-ring bulbs is no
`
` 5
`
`longer a part of this case. You shall not consider that fact
`
` 6
`
`in any way or speculate as to the reasons. As jurors, it is
`
` 7
`
`your duty to consider only the issues between OptoLum and Cree
`
` 8
`
`in accordance with these instructions and the evidence in the
`
` 9
`
`case."
`
`10
`
`11
`
`12
`
`13
`
`Everybody good with that?
`
`MS. McCOY: Yes, Your Honor.
`
`MR. MARTINSON: Yes.
`
`THE COURT: All right. So I was going to recommend
`
`14
`
`to both of you, the instructions -- I amended them so you know
`
`15
`
`what they are. I'd recommend that you have a lawyer reviewing
`
`16
`
`them before I give them, to the extent you can -- there are
`
`17
`
`plenty of lawyers in this case -- and I will -- generally
`
`18
`
`speaking, I don't -- I mean, I don't turn it away, but I don't
`
`19
`
`like objections during the instructions. But I'm going to
`
`20
`
`encourage the parties to do that here. These are the longest
`
`21
`
`instructions I think I've ever prepared, and there's a lot of
`
`22
`
`stuff in there, so I'll -- you can object, even after the
`
`23
`
`instructions have been given. But here I strongly recommend
`
`24
`
`the parties carefully follow along as I give the instructions
`
`25
`
`to make sure that we haven't missed something based on what's
`
`November 9, 2021 - Trial Day 9
`
`

`

`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 18 of 154
`
` 18
`
` 1
`
`been tendered.
`
` 2
`
` 3
`
`All right. Have you got them where you want them?
`
`MR. MARTINSON: I honestly don't know the answer to
`
` 4
`
`that, Your Honor. We're good for now.
`
` 5
`
`THE COURT: As far as you know, you have them with
`
` 6
`
`the person you want to review them while you're doing your
`
` 7
`
`thing.
`
` 8
`
` 9
`
`10
`
`MS. McCOY: Sorry, we've got them.
`
`THE COURT: You all ready to go? All right.
`
`Another thing, people are a little reluctant to do
`
`11
`
`it, but during the closing argument, I'll be listening, but I'm
`
`12
`
`also be cleaning up some of this mess to get it out of the way;
`
`13
`
`and if for some reason the shuffling papers is too loud over
`
`14
`
`the microphone, please let me know. You can just stand up and
`
`15
`
`do whatever, but let me know. These microphones are very
`
`16
`
`sensitive.
`
`17
`
`18
`
`19
`
`All right. Mr. Dodd, short straw for you today.
`
`CSO DODD: Only for a few minutes.
`
`THE COURT: All right. If you'll bring the jury in,
`
`20
`
`please, sir. The jury will be deliberating in Courtroom 2,
`
`21
`
`second floor, middle of the hallway. So you all -- both of you
`
`22
`
`have conference rooms on the second floor? Be careful as you
`
`23
`
`wander in and out. Jurors have to come in and out to go to the
`
`24
`
`bathroom up there.
`
`25
`
`(At 10:27 a.m., jurors arrive.)
`
`November 9, 2021 - Trial Day 9
`
`

`

`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 19 of 154
`
` 19
`
` 1
`
`THE COURT: All right. Good morning, ladies and
`
` 2
`
`gentlemen. We now come to the part of the trial where the
`
` 3
`
`parties will have an opportunity to deliver their closing
`
` 4
`
`arguments to you. Recall the instructions that I gave at the
`
` 5
`
`beginning of the trial. What the lawyers say is not evidence
`
` 6
`
`in the case. This is an opportunity for the parties to call
`
` 7
`
`your attention to facts that might otherwise escape your notice
`
` 8
`
`or explain what they believe -- the parties believe may be
`
` 9
`
`concluded from the evidence in the case as well as the law that
`
`10
`
`you are to apply.
`
`11
`
`So give them your close attention throughout those
`
`12
`
`arguments, but remember that what they say is not binding upon
`
`13
`
`you. You are the judges of the facts in the case; and if your
`
`14
`
`recollection differs from anything you hear, you are to rely on
`
`15
`
`your recollection in deciding this case.
`
`16
`
`The order of arguments will proceed the Plaintiff
`
`17
`
`will have an opportunity to make a closing argument; the
`
`18
`
`Defendant will then have an opportunity to make a closing
`
`19
`
`argument; and the Plaintiff will then have an opportunity for a
`
`20
`
`rebuttal argument.
`
`21
`
`I'm not saying this because I anticipate the
`
`22
`
`arguments will be unusually long, but I probably will let you
`
`23
`
`stretch your legs between the arguments and then before I start
`
`24
`
`my closing instructions.
`
`25
`
`So please give the parties your close attention as I
`
`November 9, 2021 - Trial Day 9
`
`

`

`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 20 of 154
`
` 20
`
` 1
`
`recognize them for the purpose of final arguments. Is the
`
` 2
`
`Plaintiff ready to proceed?
`
` 3
`
` 4
`
` 5
`
` 6
`
`MR. MARTINSON: We are, Your Honor.
`
`THE COURT: You may do so, Mr. Martinson.
`
`MR. MARTINSON: Thank you.
`
`Well, good morning, ladies and gentlemen. On behalf
`
` 7
`
`of OptoLum, our team, the client, I want to thank you for your
`
` 8
`
`attention over this long stretch. I assume there are other
`
` 9
`
`things you'd want to be doing with your lives than listening to
`
`10
`
`us tell you why our client is correct. It's been a long road.
`
`11
`
`It's been a mountain of testimony, some of it highly technical,
`
`12
`
`some of it may seem irrelevant. But what I believe, what our
`
`13
`
`client -- what OptoLum asks is that when you weigh everything
`
`14
`
`that you've heard, you render a verdict in our favor of
`
`15
`
`infringement.
`
`16
`
`17
`
`May I please have the screen?
`
`It's hard to believe that it's been nearly three
`
`18
`
`weeks since you were first introduced to OptoLum. OptoLum, a
`
`19
`
`small company in Arizona. The founders, the day-to-day
`
`20
`
`operations, they've been here. This is an important matter to
`
`21
`
`them. They appreciate your attention. They make products.
`
`22
`
`They don't just own intellectual property. They use their
`
`23
`
`products. They sell their products. They show up in places
`
`24
`
`like museums, Tiffany's, and other stores around the world, and
`
`25
`
`it's been a long road to end up where we are today.
`
`November 9, 2021 - Trial Day 9
`
`

`

`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 21 of 154
`
` 21
`
` 1
`
`Before we turn this over for your decision, we want
`
` 2
`
`you to understand that this case has been pending for five
`
` 3
`
`years. It's been over five years that Mr. Dry and OptoLum has
`
` 4
`
`waited for your verdict. This case was originally filed in
`
` 5
`
`Arizona; it got moved to North Carolina; it got delayed because
`
` 6
`
`of the pandemic; and here we are five years, three weeks of
`
` 7
`
`testimony, and now it's time for your decision.
`
` 8
`
`In case you can't see him over there, just a
`
` 9
`
`reminder, Mr. Dry and Ms. Baker, that is OptoLum, a company
`
`10
`
`built around Mr. Dry's passion for LED technology, bringing
`
`11
`
`those products to the market to make the world a better place.
`
`12
`
`You've heard the story before, so I won't belabor it.
`
`13
`
`It sounds a little cliché. He's asleep one night and has an
`
`14
`
`idea. He remembers something from his childhood, Boy Scout
`
`15
`
`camp, out in the woods. How is it I can have a fire inside a
`
`16
`
`teepee and not smoke myself out? Can I apply that to my love
`
`17
`
`of LEDs and create a product? And what do you end up with as a
`
`18
`
`result of that dream?
`
`19
`
`Back in 2002, this is the idea that came out of his
`
`20
`
`head, an elongate thermally conductive member, a piece of
`
`21
`
`aluminum that's hollow. That's an example. I want to put LEDs
`
`22
`
`on it. Why? Because they're highly efficient. But what's the
`
`23
`
`downside? They create a lot of heat. So how do I solve that
`
`24
`
`problem? How do I take this new technology and get it in the
`
`25
`
`hands of the world?
`
`November 9, 2021 - Trial Day 9
`
`

`

`Case 1:17-cv-00687-WO-JLW Document 382 Filed 08/09/22 Page 22 of 154
`
` 22
`
` 1
`
`So he came up with one solution on how you can solve
`
` 2
`
`that heating problem. He wasn't sure his idea would work, so
`
` 3
`
`what did he do? He validated it. Did he do it himself? Was
`
` 4
`
`he able to do so? No. But what he believed, what Mother
`
` 5
`
`Nature always does, as we understand it, is get it right. His
`
` 6
`
`model proved that that's what would happen if he built it.
`
` 7
`
`So what did he do? He filed for a patent on his
`
` 8
`
`idea, right? Remember, he worked in the industry. He worked
`
` 9
`
`at Color Kinetics. He understood the value of intellectual
`
`10
`
`property, and he believed in his idea. He believed it was
`
`11
`
`worth protecting. He believed it was worth his personal
`
`12
`
`investment of his own funds, the funds of his mother-in-law, to
`
`13
`
`try and protect this idea.
`
`14
`
`That's one of the drawings from the patent. Is there
`
`15
`
`only one patent in this family? Is there only one invention
`
`16
`
`from Joel's idea? No. We have the '303 patent. We have the
`
`17
`
`'028 patent. There are other patents in the family that are
`
`18
`
`not asserted in this matter. But his idea sparked a number of
`
`19
`
`inventions.
`
`20
`
`Is he proud of those inventions? Yes, he is. Did he
`
`21
`
`talk about his patents? Yes, he did. Every chance he got, at
`
`22
`
`every conference he went to, every person he ran into that
`
`23
`
`asked him about his technology, he would say things like, "I'm
`
`24
`
`pro

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