Case 1:15-cv-10240-LTS Document 66 Filed 03/17/15 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`Civil Action No. 1:15-cv-10240-LTS
`PUBLIC VERSION
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`ENERGETIQ TECHNOLOGY, INC.,
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`Plaintiff,
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`v.
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`ASML NETHERLANDS B.V.,
`EXCELITAS TECHNOLOGIES CORP., and
`QIOPTIQ PHOTONICS GMBH & CO. KG,
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`Defendants.
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`ENERGETIQ’S REPLY BRIEF IN
`SUPPORT OF ITS MOTION FOR PRELIMINARY INJUNCTION
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`ASML 1107
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`Case 1:15-cv-10240-LTS Document 66 Filed 03/17/15 Page 2 of 7
`Case 1:15—cv—10240—LTS Document 66 Filed 03/17/15 Page 2 of 7
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`A preliminary injunction is intended to maintain the statusq1
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`' With respect to Excelitas’ allegations that an injunction will harm it: “‘ [o]ne who elects
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`to build a business on a product folmd to infringe carmot be heard to co1nplai11 if a11 i11j1u1ction
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`against continuing infringement destroys the business so elected.” Alerial Ltd. v. Cipla Ltd, 681
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`F.3d 1283. 1306 (Fed. Cir. 2012) (citations omitted).
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`As to Excelitas, this issue is ripe for a preliminary inj1mction. Based on the little Excelitas
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`says i11 its opposition to Energetiq’s motion, a preliminary injlmction clearly is appropriate here.
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`on the moodofT
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`Regarding the timing, Excelitas takes no issue that Energetiq first learned about this infringing
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`Product development in late 2014-
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`-.1 Nor does Excelitas. a Massachusetts-based company, challenge this court’s
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`jmisdiction or service of process. 2
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`I.
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`LIKELIHOOD OF SUCCESS
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`Infringement. While Defendants arguet
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`The referenced declarations are on file with the court as follows: Smith I (Doc. No. 14),
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`Smith II (filed herewith). Lorenz I (Doc. No. 24), Lorenz H (Doc. No. 49), Ross (Doc. No. 50),
`Ersoni H Doc. No. 51 Letz II Doc. No. 54 .
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`Case 1:15-cv-10240-LTS Document 66 Filed 03/17/15 Page 3 of 7
`Case 1:15—cv—10240—LTS Document 66 Filed 03/17/15 Page 3 of 7
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`Case 1:15-cv-10240-LTS Document 66 Filed 03/17/15 Page 4 of 7
`Case 1:15—cv—10240—LTS Document 66 Filed 03/17/15 Page 4 of 7
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`Patent Validity. Energetiq can now say with certainty, having now seen Defendants’ best
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`case on validity, that it is likely to prevail on Defendants’ invalidity assertions. For instance, with
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`respect to the ‘455 patent, claim 41 , Dr. Ross identifies only one prior art reference (Gartner) that
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`she says shows every limitation of the claim. But, Dr. Ross made a fatal factual mistake (perhaps
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`underlining a lack of expertise in the area of the patents) by saying that Géirtner has a “curved
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`reflective surface” that meets two requirements of claim 41: (1) “receive and reflect .
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`. the
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`electromagnetic energy [laser light] toward the ionized gas .
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`. .1” and (2) “reflects the high
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`brightness light [generated by the plasma] toward an output of the light source.” In fact, the
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`“concave mi1ror'39” in Garlner that she points to does not perform the second of these two
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`requirements. And, Géirtner does not disclose a “high brightness light,” as the claim requires.
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`Gartner therefore carmot invalidate claim 41 rmder 35 U.S.C. § 102. (Smith II 1H] 44, 45-54; Ex. 1.)
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`Dr. Ross also opines that Gartner, i11 combination with other prior‘ art, renders claim 41
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`obvious under 35 U.S.C . § 103. But her obviousness analysis is too conclusory to cany any
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`weight, and indeed, fails to meet the minimum legal requirements for arguing obviousness:
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`0 Dr. Ross failed completely to address the objective evidence of non-obviousness that
`Energetiq put forward, including long-felt need for the invention, unexpectedly good
`results from the invention, and overwhehning industry praise of the invention (Smith I fifil
`7-11). See Transocean Cfifshore Deepwater Drilling, Inc. v. Maersk Contractors USA,
`Inc., 617 F.3d. 1296, 1305 (Fed. Cir‘. 2010) (reversing district court obviousness finding
`because of “failure to consider the objective evidence of nonobviousness .
`. .”); Procter &
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`Case 1:15-cv-10240-LTS Document 66 Filed 03/17/15 Page 5 of 7
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`Gamble v. Teva Pharm. USA, Inc., 566 F.3d 989, 998 (Fed. Cir. 2009) (objective evidence
`of non-obviousness such as long-felt need often is “the most cogent evidence [of non-
`obviousness] in the record”).
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` Dr. Ross provided no reason why a person of ordinary skill in the art at the time of the
`invention would have made the combinations that allegedly render the invention obvious
`(Ross ¶¶ 24, 31, 39, 49-56). See In Touch Tech. v. VGO Communications, Inc., 751 F.3d
`1327, 1348 (Fed. Cir. 2014) (“Dr. Yanco’s testimony was nothing more than impermissible
`hindsight; she opined that all of the elements of the claims disparately existed in the prior
`art, but failed to provide the glue to combine these references.”); See also Kinetic Concepts,
`Inc. v. Smith & Nephew, Inc., 688 F.3d. 1342, 1366 (Fed. Cir. 2012) (obviousness
`argument fails as defendant did not show reason why person skilled in the art would
`combine references).
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` Dr. Ross’ obviousness analysis consists of nothing more than boilerplate conclusory
`statements, (e.g. Ross ¶¶ 24, 31, 39, 49-56), and this is not enough. KSR Int’l Co. v.
`Teleflex Inc., 550 U.S. 398, 341 (2007) (obviousness analysis must be made explicit and
`conclusory statements do not suffice); See In Touch Tech., at 1352 (Fed. Cir. 2014) (“Dr.
`Yanco’s testimony primarily consisted of conclusory references to her belief that one of
`ordinary skill in the art could combine these references, not that they would have been
`motivated to do so”).
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`For these reasons alone, the court can find that Defendants failed to raise a substantial question of
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`patent validity. In addition, Defendants’ validity analysis also fails on the technical merits, as
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`shown in Dr. Smith’s second declaration, attached hereto. (Smith II ¶¶ 8-79.) 5
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`II.
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`OTHER FACTORS
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`Irreparable Harm. Defendants’ opposition also underscores the irreparable harm here,
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`absent an injunction.
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`And while Energetiq need only show likelihood of success on one patent claim,
`Defendants invalidity case for claim 10 of the ‘942 patent fails for similar reasons. (Smith II ¶¶
`13-40.) With respect to claim 10, Defendants also raise an argument that the claim 10 term
`“high brightness light” is indefinite. (Opp. 13 n. 7.) This argument is without merit, as the ‘982
`patent specification at col. 1, ll. 9-40, provides an express and certain definition of “high
`brightness light.” (Smith II, ¶¶ 17-22.)
`See Celsis in Vitro, Inc. v. CellzDirect, Inc., 664 F.3d 922, 930 (Fed. Cir. 2012) (“Price
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`erosion, loss of goodwill, damage to reputation, and loss of business opportunities are all valid
`grounds for finding irreparable harm.”)
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`Case 1:15-cv-10240-LTS Document 66 Filed 03/17/15 Page 6 of 7
`Case 1:15—cv—10240—LTS Document 66 Filed 03/17/15 Page 6 of 7
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`Balance o[ Ez_7m'ties and Public Interest.
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`Justice is not done when a small technology
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`company patents a groluidbreakirlg new technology, but loses the customer and its exclusivity right
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`because so111eo11e decides that it will be cheaper to make the product itself. This kind of behavior
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`kills American umovation.
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`Case 1:15-cv-10240-LTS Document 66 Filed 03/17/15 Page 7 of 7
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`Dated: March 17, 2015
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`Respectfully submitted,
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`/s/ Steven M. Bauer
`Steven M. Bauer (BBO #542531)
`Safraz W. Ishmael (BBO #657881)
`S. James Boumil III (BBO #684361)
`PROSKAUER ROSE LLP
`One International Place
`Boston, MA 02110-2600
`Telephone: (617) 526-9600
`Facsimile: (617) 526-9899
`sbauer@proskauer.com
`sishmael@proskauer.com
`jboumil@proskauer.com
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`ATTORNEYS FOR
`ENERGETIQ TECHNOLOGY, INC.
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`CERTIFICATE OF SERVICE
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`I hereby certify that, on March 17, 2015, I electronically filed the foregoing with the
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`Clerk of the Court by using the CM/ECF system. A copy of the document will be served upon
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`Defendants’ counsel electronically via the CM/ECF system.
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`/s/ Steven M. Bauer
`Steven M. Bauer
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