4:12-cv-11758-GAD-MKM Doc # 129 Filed 08/21/13 Pg 1 of 31 Pg ID 7065
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`Case No. 12-11758
`Honorable Gershwin A. Drain
`
`EVERLIGHT ELECTRONICS CO., LTD.,
`and EMCORE CORPORATION,
`
`Plaintiffs/Counter-Defendants,
`
`v.
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
`
`Defendants/Counter-Plaintiffs,
`
`v.
`
`EVERLIGHT AMERICAS, INC.
`
`Defendant.
`
`
`___________________________________/
`
`OPINION AND ORDER REGARDING CLAIM CONSTRUCTION
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`I.
`
`INTRODUCTION
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`This matter is before the court for claim construction relative to United States Patent No.
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`5,998,925 (“‘925 Patent”), United States Patent No.7,531,960 (“‘960 Patent”), and United States
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`Patent No. 6,653,215 (“‘215 Patent”). A Markman hearing was held on August 13, 2013. See
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`Markman v. West View Instruments, Inc., 517 U.S. 370 (1996). The patents-in-suit relate to light
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`emitting diode (“LED”) devices and the parties are business competitors in the manufacture and
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`supply of these products.
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`Everlight Electronics Co., Ltd. and Emcore Corporation filed the instant action seeking a
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`declaratory judgment of non-infringement, invalidity, and unenforceability of Nichia Corporation’s
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`patents, the ‘925 Patent and the ‘960 Patent, as well as alleging direct and indirect infringement of
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`the ‘215" Patent,1 against Nichia Corporation and its subsidiary, Nichia America Corporation
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`(collectively “Nichia”). Nichia filed Counterclaims against Emcore Corporation, Everlight
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`Electronics Co., and its subsidiary, Everlight Americas, Inc. (collectively “Everlight”), for direct and
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`indirect infringement of the ‘925 and ‘960 Patents. Nichia also seeks a declaratory judgment of non-
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`infringement and invalidity of the ‘215 Patent.
`
`II.
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`TECHNOLOGY BACKGROUND
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`An LED is a semiconductor device that emits light when an electrical energy is applied and
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`an electrical current flows through the semiconductor material. The ‘925 Patent, entitled LIGHT
`
`EMITTING DEVICE HAVING A NITRIDE COMPOUND SEMICONDUCTOR AND A
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`PHOSPHOR CONTAINING A GARNET FLUORESCENT MATERIAL, focuses on the use of
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`yttrium-aluminum-garnet (“YAG”) phosphors in LEDs to create a wide range of white light. White
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`light is created with a device, including a semiconductor-based light emitting component capable
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`of emitting blue light and a resin with a phosphor that absorbs part of the blue light and emits a
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`yellowish light. The two different colors or wavelengths of light are mixed and perceived by the
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`human eye as white light. The ‘925 Patent’s Abstract states:
`
`The white light emitting diode comprising a light emitting component using a
`semiconductor as a light emitting layer and a phosphor which absorbs a part of light
`emitted by the light emitting component and emits light of wavelength different from
`that of the absorbed light, wherein the light emitting layer of the light emitting
`component is a nitride compound semiconductor and the phosphor contains garnet
`fluorescent materials activated with cerium which contains at least one element
`selected from the group consisting of Y, Lu, Sc, La, Gd and Sm, and at least one
`element selected from the group consisting of Al, Ga and In and, and [sic] is subject
`to less deterioration of emission characteristic even when used with high luminance
`
`1 Emcore is the owner by assignment, and Everlight is the exclusive licensee of the ‘215
`Patent.
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`for a long period of time.
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`Dkt. No. 99, Ex. A.
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`The ‘960 Patent, entitled LIGHT EMITTING DEVICE WITH BLUE LIGHT LED AND
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`PHOSPHOR COMPONENTS, claims priority to the ‘925 Patent and concerns how the phosphor
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`is distributed in the resin covering the semiconductor component. The ‘960 Abstract states:
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`A light emitting device includes a light emitting component; and a phosphor capable
`of absorbing a part of light emitted by the light emitting component and emitting
`light of a wavelength different from that of the absorbed light. A straight line
`connecting a point of chromaticity corresponding to a peak of the spectrum generated
`by the light emitting component and a point of chromaticity corresponding to a peak
`of the spectrum generated by the phosphor is disposed along with the black body
`radiation locus in the chromaticity diagram.
`
`Id., Ex. B. Thus, both the ‘925 and ‘960 Patents cover the use of particular phosphors in white LED
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`technology enabling efficient, long-lasting, high luminance LEDs in a wide variety of applications
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`including computer and cellular telephone displays.
`
`The ‘215 Patent, entitled CONTACT TO N-GAN WITH AU TERMINATION, is directed
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`to forming a low-resistance ohmic contact to an LED semiconductor in order to prevent certain
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`deleterious effects including heating, reduced efficiency and LED device failure. The ‘215 Patent’s
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`Abstract states:
`
`A contact for n-type III semiconductor such as GaN and related nitride-based
`semiconductors is formed by depositing Al, Ti, Pt and Au in that order on the n-type
`semiconductor and annealing the resulting stack, desirably at about 400-600°C. for
`about 1-10 minutes. The resulting contact provides low resistance, ohmic contact to
`the semiconductor and excellent bonding to gold leads.
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`Id., Ex. C. The purpose of an ohmic contact is to transfer electrical current originating from a
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`power supply (such as a battery) through the contact without excessive hindrance, into the
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`semiconductor. Ohmic contacts are composed of a metal layer or layers, deposited on the
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`semiconductor. An ohmic contact must have a low contact resistance, i.e., the contact allows
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`electric current to pass into and out of an LED with a minimum amount of resistance.
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`III.
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`CLAIM CONSTRUCTION
`
`A.
`
`Standard of Review
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`A determination of infringement requires a two-step analysis. Gentry Gallery, Inc. v.
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`Berkline Corp., 134 F. 3d 1473, 1476 (Fed. Cir. 1998). “First, the claim must be properly construed
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`to determine its scope and meaning. Second, the claim as properly construed must be compared to
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`the accused device or process.” Id. Claim construction is an issue of law. Markman, 517 U.S.at
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`388-90. In interpreting claims, a court “should look first to the intrinsic evidence of record, i.e., the
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`patent itself, including the claims, the specification and, if in evidence, the prosecution history.”
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`Vitronics Corp. v. Conceptronic, Inc., 90 F. 3d 1576, 1582 (Fed. Cir. 1996). Absent an express intent
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`to impart a novel meaning, “terms in a claim are to be given their ordinary and accustomed
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`meaning.” Renishaw PLC v. Marposs Societa’ per Azioni, 158 F. 3d 1243, 1249 (Fed. Cir. 1998).
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`It is the claims that measure the invention. SRI Int’l v. Matsushita Elec. Corp., 775 F. 2d 1107,
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`1121 (Fed. Cir. 1985).
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`Although accorded less weight than intrinsic evidence, extrinsic evidence, such as expert
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`testimony, dictionaries, and treatises, can also be helpful. Phillips v. AWH Corp., 415 F.3d 1303,
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`1317 (Fed. Cir. 2005). Therefore, extrinsic evidence “may be considered if the court deems it
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`helpful,” provided the court “attach[es] the appropriate weight” to extrinsic sources “in light of the
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`statutes and policies that inform patent law.” Id. at 1317-18, 1324.
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`Claim construction always begins with the language of the claim and asks “how a person of
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`ordinary skill in the art understands a claim term.” Id. A “person of ordinary skill in the art is
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`deemed to read the claim term not only in the context of the particular claim in which the disputed
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`term appears, but in the context of the entire patent, including the specification.” Id. at 1313. It is
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`“improper to read [a claim] term to encompass a broader definition” than the ordinary and customary
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`meaning revealed by the context of the intrinsic record.” Nystrom v. Trex Co., 424 F.3d 1136, 1145
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`(Fed. Cir. 2005). Indeed, “[c]laims cannot be of broader scope than the invention set forth in the
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`specification.” Id.
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`The prosecution history “inform[s] the meaning of the claim language by demonstrating how
`
`the inventor understood the invention and whether the inventor limited the invention in the course
`
`of prosecution, making the claim scope narrower than it would otherwise be.” Phillips, 415 F.3d
`
`at 1317. The Federal Circuit has held:
`
`The purpose of consulting the prosecution history in construing a claim is to exclude
`any interpretation that was disclaimed during prosecution Accordingly, where the
`patentee has unequivocally disavowed a certain meaning to obtain his patent, the
`doctrine of prosecution disclaimer attaches and narrows the ordinary meaning of the
`claim congruent with the scope of the surrender. Such a use of the prosecutions
`history ensures that claims are not construed one way in order to obtain their
`allowance and in a different way against accused infringers.
`
`Chimie v. PPG Indus., 402 F.3d 1371, 1384 (Fed. Cir. 2005).
`
`B.
`
`1.
`
`‘925 Patent’s Disputed Terms
`
`“a garnet fluorescent material comprising 1) at least one element selected from
`the group consisting of Y, Lu, Sc, La, Gd and Sm, and 2) at least one element
`selected from the group consisting of Al, Ga and In, and being activated with
`cerium”
`
`“garnet florescent material activated with cerium which contains at least one
`element selected from the group consisting of Y, Lu, Sc, La, Gd and Sm, and at
`least one element selected from the group consisting of Al, Ga and In”
`
`Nichia’s Proposed Constructions
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`“a garnet fluorescent material comprising 1) one or more elements of the group of elements
`consisting of Y, Lu, Sc, La, Gd and Sm, including any combinations thereof, and 2) one or
`more elements of the group of elements consisting of Al, Ga, and In, including any
`combinations thereof, and being activated with cerium”
`
`Revised: “a garnet fluorescent material comprising 1) Yttrium, Lutetium, Scandium,
`Lanthanum, Gadolinium, or Samarium, or any mixtures or combinations of these elements;
`and 2) Aluminum, Gallium, or Indium, or any mixtures or combinations thereof, and being
`activated with cerium”
`
`Everlight’s Proposed Construction
`“a garnet fluorescent material comprising one or more elements selected from Yttrium,
`Lutetium, Scandium, Lanthanum, Gadolinium, and Samarium; and one or more elements
`selected from Aluminum, Gallium, and Indium, and being activated with cerium”
`
`Claims 1 and 23 of the ‘925 Patent recite a “garnet fluorescent material” and define the
`
`constituent ingredients for the YAG phosphor by using a special form of claim language known as
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`the Markush group. See Abbott Labs. v. Baxter Pharm. Prods., 334 F.3d 1274, 1280 (Fed. Cir.
`
`2003) (“A Markush group is a listing of specified alternatives of a group in a patent claim” or “a sort
`
`of homemade generic expression covering a group of two or more different materials.”) The typical
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`form for a Markush group is “a member selected from the group consisting of A,B and C,” which
`
`covers one and only one member. Id. Nichia has proposed two constructions for this term. Nichia’s
`
`first construction included the language “one or more elements,” and “including combinations
`
`thereof.” Nichia’s second proposed construction omits “at least one element selected from the group
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`consisting of” language and replaces it with “any mixtures or combinations” language. Nichia
`
`argues its proposed construction comports with the law governing interpretation of Markush group
`
`claims and the intrinsic record and Everlight’s proposed usage of “one or more elements selected
`
`from the group” does not provide sufficient guidance.
`
`Here, Claim 1 includes a garnet-fluorescent phosphor “comprising 1) at least one element
`
`selected from the group consisting of Y, Lu, Se, La, Gd and Sm, and 2) at least one element selected
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`from the group consisting of Al, Ga and In, and being activated with cerium.” An example of the
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`garnet-fluorescent material is “Gd3In5O12:Ce” which consists of Gadolinium from the first group and
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`Indium from the second group and activated with Cerium. Thus, Everlight’s proposed construction
`
`comports with the intrinsic record because “comprising one or more elements selected from” covers
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`embodiments with one element from each group such as “Gd3In5O12:Ce” as well as covers
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`embodiments with more than one element from a group such as “(Y0.6Gd0.4)3Al5O12:Ce.” See ‘215
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`Patent, 7:5354. See Fresenius USA, Inc. v. Baxter Int’l, Inc., 582 F.3d 1288, 1298 (Fed. Cir.
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`2009) (holding the phrase “at least one unit selected from the group consisting of [listing of four
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`units]” covered embodiments where only one unit was selected and disclosed.)
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`Nichia’s reliance on Abbott Laboratories, supra, is unavailing as the Federal Circuit merely
`
`clarified that Markush-type claims are not always limited to a single option selected from the group
`
`of options, but can cover multiple members if appropriate language is used. Abbott Labs., 334 F.3d
`
`at 1281 (“Thus, without expressly indicating the selection of multiple members of a Markush
`
`grouping, a patentee does not claim anything other than the plain reading of the closed claim
`
`language.”). The Abbott court did not instruct courts to always construe the disputed language
`
`herein as meaning “combinations or mixtures.” Nichia’s use of “any mixtures or combinations” will
`
`cause jury confusion by making it more difficult to understand that the claims cover embodiments
`
`with only one of the elements in each group. The Court therefore adopts Everlight’s proposed
`
`construction of this term.
`
`2. “main emission peak”
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`Nichia’s Proposed Construction
`“peak emission wavelength”
`Everlight’s Proposed Construction
`“the wavelength at the point of greatest intensity on the emission curve”
`
`Claims 9 and 23 require that “the main emission peak of the light emitting component is set
`
`within the range from 400 nm to 530 nm and the main emission wavelength of the phosphor is set
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`to be longer than the main emission peak of the light emitting component.” See ‘215 Patent at 34:18-
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`23. The parties agree that this term refers to a wavelength of light. However, the Court finds that
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`Everlight’s proposed construction adds confusion and extraneous limitations finding no support from
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`the intrinsic record. Specifically, Everlight’s proposed construction refers to “the point of greatest
`
`intensity on the emission curve.” Everlight argues the “main emission peak” is limited to a single
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`wavelength and does not cover a range of wavelengths as suggested by Nichia. See ‘925 Patent, FIG.
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`18B. However, nowhere does the patent describe the main emission peak as a “point.” Further,
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`reference to “emission curve” is confusing as the claims do not refer to an emission curve. In fact
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`the ‘925 Patent suggests that there is not a well defined, “point of greatest intensity” for the light
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`emitting component. See ‘925 Patent at 9:13-15 (“Although light emitted by the light emitting
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`component has a monochromatic peak, the peak is broad and has a high color rendering property.”)
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`The intrinsic record makes clear that the “main emission peak” refers to a property of the
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`semiconductor component, i.e., the peak emission wavelength of light output by the semiconductor.
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`Additionally, Nichia’s proposed construction is supported by probative extrinsic evidence that its
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`construction reflects the common understanding of the term as used in the field. See T.A. Fisher et
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`al., Electroluminescence From a Conjugated Polymer Microactivity Structure, APPLIED PHYSICS
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`LETTERS, Vol. 67, Issue 10, Sept. 4, 1995 at 1356-57 (using the terms “main emission peak” and
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`“peak emission wavelength” interchangeably); M.S. Weaver et al., Recent Progress in Polymers for
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`Electroluminescence: Microactivity Devices and Electron Transport Polymers, THIN SOLID FILMS,
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`Vol. 273, Feb. 1996 at 43-44. Thus, the Court adopts Nichia’s proposed construction of this term.
`
`3.
`
`“wherein the phosphor used contains an yttrium-aluminum-garnet fluorescent material
`containing Y and Al”
`
`Nichia’s Proposed Construction
`No construction necessary
`Everlight’s Proposed Construction
`“wherein the phosphor used contains an yttrium-aluminum-garnet fluorescent material
`containing Yttrium and Aluminum that is different from the said garnet fluorescent material”
`
`Here, the disputed term is found in dependent Claim 2, which reads: “A light emitting device
`
`according to claim 1, wherein the phosphor used contains an yttrium-aluminum-garnet fluorescent
`
`material containing Y and Al.” ‘925 Patent at 31:38-40. Nichia argues that this term should be
`
`given its ordinary and plain meaning in the context of the ‘925 Patent and the Court agrees.
`
`Specifically, the phosphor in Claim 1, referred to in Claim 2 as “the phosphor used,” includes a
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`“yttrium-aluminum-garnet fluorescent material containing Y and Al.”
`
`Claim 2 depends from Claim 1, and specifies a further limitation on the phosphor described
`
`in Claim 1. See 35 U.S.C. 112, 4 (“[A] claim in dependent form shall contain a reference to a claim
`
`previously set forth and then specify a further limitation of the subject matter claimed.”) Claim 1
`
`indicates that the phosphor contains a garnet fluorescent material comprising at least one element
`
`from two groupings of listed elements. Claim 2 specifies that the “phosphor used” in Claim 1
`
`“contains an yttrium-aluminum-garnet fluorescent material containing Y and Al.” Thus, Claim 2
`
`further limits the garnet fluorescent material of Claim 1 by requiring that it include Y and Al.
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`Everlight seeks to import into Claim 2 a requirement that there be two different garnet
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`fluorescent materials, which is not supported by the claim or specification. Nothing in the intrinsic
`
`record supports the narrow construction proposed by Everlight. Claim 2 is the first of three
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`dependent claims from Claim 1, and none of these claims disclose two different garnet fluorescent
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`materials. In fact, other dependent claims, such as Claim 5, specifically disclose different fluorescent
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`materials, such as “two or more yttrium-aluminum-garnet fluorescent materials . . . .” ‘See 925 Patent
`
`at 31:51-54. Therefore, Claim 5 demonstrates that Claim 2 is not properly construed as requiring two
`
`different garnet fluorescent materials. See Phillips, 415 F.3d at 1314 (“Other claims of the patent in
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`question, both asserted and unasserted, can also be valuable sources of enlightenment as to the
`
`meaning of the claim term.”). Thus, the Court rejects Everlight’s proposed construction and finds
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`that this term requires no construction.
`
`4.
`
`“a general formula (Re1-rSMr)3(Al1-sGas)5O12:Ce, where 0 # r < 1 and 0 #s #1 and Re
`is at least one selected from Y and Gd”
`
`Nichia’s Proposed Constructions
`“a chemical formula having the elements Sm, Al, Ga, O, and Ce as well as Re, where:
` 1) O and Ce are present;
` 2) some amount of Re is present;
` 3) each of Sm, Al, Ga may be present but is not required to be present;
` 4) r is a variable that defines the amount of Sm relative to Re, such that where r=0.5, for
`example, the relative amounts of Ga and Al are equal; and where Re represents one or both
`elements of the group of elements consisting of Y and Gd, including any combination thereof”
`Revised: No need for construction at this time
`Everlight’s Proposed Construction
`“a general formula (Re1-rSMr)3(Al1-sGas)5O12:Ce, where r is greater than or equal to zero and
`less than one, where s is greater than or equal to zero and less than or equal to one, and Re is
`Yttrium, Gadolinium, or any combination thereof”
`
`The formula terms set forth in Claims 3 and 6 recite the elements of the garnet fluorescent
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`material and their relative proportions and the constant presence of O12:Ce in the composition. The
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`first group is represented by parenthetical (Re1-rSMr)3 where “Sm” is the element of Samarium and
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`“Re” represents the elements Yttrium or Gadolinium. The second group is represented by the
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`parenthetical term (Al1-sGas)5 where “Ga” is the element Gallium and “Al” is the element Aluminum.
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` Further, the term (Al1-sGas)5 indicates that there are “s” moles of the element Gallium and “1-s”
`
`moles of the element Aluminum. The greater the Gallium content, the lesser the content of
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`Aluminum and vice versa. Similarly,(Re1-rSMr)3 means that there are “r” moles of Samarium and “1-
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`r” moles of Re, which is either Yttrium or Gadolinium. Therefore, the greater the content of
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`Samarium, the lesser the content of either Yttrium or Gadolinium, and vice versa.
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`The Court finds that Everlight’s proposed construction helps to explain to the jury the
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`relationship between the elements. Nichia’s original proposed construction contradicts the plain
`
`language by incorrectly stating that cerium be present. Cerium is not merely present–rather the
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`chemical formula requires activation with cerium. Further, “each of Sm, Al, and Ga may be present
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`but is not required to be present” distorts the claim language. If Gallium is completely absent, then
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`only Aluminum will be left. There is no circumstance where neither Gallium nor Aluminum is
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`present in the formula, thus Nichia’s construction allowing for such a circumstance is contrary to the
`
`plain language.
`
`Further, Nichia’s argument that this term requires no construction appears disingenuous.
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`Given that Nichia originally proposed a lengthy construction of this term, Nichia’s recent amendment
`
`to its position regarding construction of this term belies Nichia’s present assertion that the term
`
`requires no construction. The jury will be aided by explaining the meaning of the chemical formula
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`and Everlight’s proposed construction comports with the recited formula in Claims 3 and 6.
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`5.
`
`“wherein the phosphor may contain a first fluorescent material represented by a
`general formula Y3(Al1-sGas)5O12:Ce and a second fluorescent material represented by
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`a general formula Re3Al5O12:Ce, where 0 #s #1 and Re is at least one element selected
`from the group consisting of Y, Ga and La”
`
`Nichia’s Proposed Constructions
`“wherein the phosphor may contain two different fluorescent materials, the first being
`represented by a chemical formula having the elements Y, Al, Ga, O, and Ce, where:
` 1) Y, O and Ce are present;
` 2) each of Al and Ga may be present, but is not required to be present; and
` 3) s is a variable that defines the amount of Ga relative to Al, such that where s=0.5, for
`example, the relative amounts of Ga and Al are equal;
`the second being represented by a chemical formula Re3Al5O12:Ce, and where Re represents
`one or more elements of the group of elements consisting of Y, Gd and La, including any
`combination thereof”
`Revised: No need for construction at this time
`Everlight’s Proposed Construction
`“wherein the phosphor may contain two different fluorescent materials, the first being
`represented by a general formula Y3(Al1-sGas)5O12:Ce , where s is greater than or equal to zero
`and less than or equal to one, and the second being represented by a general formula
`Re3Al5O12:Ce, where Re is Yttrium, Gadolinium, Lanthanum, or any combination thereof”
`
`Claim 7 requires the garnet florescent material disclosed in Claim 1 consist of two different
`
`fluorescent materials, with the first florescent material “represented by a general formula Y3(Al1-
`
`sGas)5O12:C” and the second fluorescent material “represented by general formula Re3Al5O12:Ce”
`
`where the first material includes the constant presence of Yttrium and O12:Ce, as well as Aluminum
`
`and Gallium in amounts relative to each other and summing to one. Similarly, the second fluorescent
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`material includes the constant presence of Aluminum and O12:Ce, as well as Re3 where Re is at least
`
`one element from the group Yttrium, Gadolinium and Lanthanum. Thus, the material can have
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`Yttrium, Gadolinium, Lanthanum that maintains the specified ratio by summing to three.
`
`As with the previous term, Nichia withdrew its previous, inaccurate, and lengthy construction
`
`and now takes the position that no construction is necessary. For the reasons identified in the Court’s
`
`discussion of the previous term, the Court finds that Everlight’s proposed construction comports with
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`the plain language and will aid the jury in resolving the parties’ claims.
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`6.
`
`“comprises a nitride compound semiconductor represented by the formula: IniGajAlkN
`where 0 #i, 0 #j, 0 #k and i+j+k = 1"
`
`Nichia’s Proposed Constructions
`“comprises a nitride compound semiconductor represented by a chemical formula having the
`elements In, Ga, Al, and N, where:
` 1) each of In, G, and Al may be present but is not required to be present; and
` 2) i,j, and k are variables that defines the amount of In, Ga, and Al, respectively, relative to
`each other, such that where i=0.2, j=0.2, and k=0.6, for example, the relative amount of In is
`the same as the relative amount of Ga, and the relative amount of Al is three times the relative
`amounts of each of In and Ga”
`Revised: “comprises a semiconductor, which is represented by the stoichiometric formula
`IniGajAlkN where (i+j+k) is about 1"
`2nd Revision: No construction needed at this time.
`3rd Revision: comprises a nitride compound semiconductor represented by the formula
`IniGajAlkN, where i is greater than or equal to zero, j is greater than or equal to zero, and k is
`greater than or equal to zero and where i plus j plus k equals one.”
`Everlight’s Proposed Construction
`“comprises a nitride semiconductor which includes Nitrogen in a 1:1 stoichiometric
`relationship with one selected from the group consisting of Indium, Gallium, Aluminum,
`Indium-Gallium, Indium-Aluminum,Gallium-Aluminum, and Indium-Gallium-Aluminum”
`
`Claim 1 discloses that the nitride compound is “represented by the formula IniGajAlkN where
`
`0 #i, 0 #j, 0 #k and i+j+k = 1." Here, Everlight’s proposed construction is more confusing for the
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`jury because Everlight injects improper technical language, “a 1:1 stoichiometric relationship” and
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`injects legalistic, close-ended Markush group language, “one selected from the group consisting of”
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`into the construction as a purported substitution for the chemical formula. The Summary of the ‘925
`
`Patent states that the nitride semiconductor is “generally represented” by the indicated formula. This
`
`is because the semiconductor materials contain dopants or impurities as described in examples 1,9
`
`and 11 of the ‘925 Patent. The presence of such dopants necessarily impacts the 1:1 stoichiometric
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`relationship of the elements. Thus, the Court adopts Nichia’s third proposed construction for this
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`-13-
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`

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`4:12-cv-11758-GAD-MKM Doc # 129 Filed 08/21/13 Pg 14 of 31 Pg ID 7078
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`term: “[C]omprises a nitride compound semiconductor represented by the formula IniGajAlkN, where
`
`i is greater than or equal to zero, j is greater than or equal to zero, and k is greater than or equal to
`
`zero and where i plus j plus k equals one.” Nichia’s recent proposed construction tracks Everlight’s
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`constructions adopted by this Court for the other formula-based terms by reciting in words the
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`mathematical relationship among the variables.
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`C.
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`‘960 Patent’s Disputed Terms
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`1. “the two or more kinds of fluorescent materials are independently arranged”
`
`Nichia’s Proposed Constructions
`“florescent material that absorbs light from the emitting component of a shorter wavelength is
`near the light emitting component, and a fluorescent material that absorbs light of a longer
`wavelength is away from the light emitting component”
`Everlight’s Proposed Construction
`“positioned in separate layers, without mixing”
`
`Claim 5 of the ‘960 Patent discloses a light emitting device consisting of a light emitting
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`component having a GaN semiconductor wherein “two or more kinds of fluorescent materials are
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`independently arranged . . . .” See ‘960 Patent at 31:29-45. Everlight’s construction is supported by
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`the ‘960 Patent’s specification which states: “In the second embodiment, the two or more kinds of
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`yttrium-aluminum-garnet fluorescent materials activated with cerium of different compositions may
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`be either used by mixing or arranged independently (laminated, for example).” ‘960 Patent at 19:6-
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`10. The specification explains that “[w]hen the two or more kinds of fluorescent materials are
`
`arranged independently, color can be adjusted after forming it by laminating the layers . . . .” Id. at
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`19:13-16. Thus, Everlight’s construction is consistent with the specification’s description of what
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`it means to “independently arrange” two or more fluorescent materials. The specification contrasts
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`fluorescent materials that are “independently arranged” with fluorescent materials that are “mixed.”
`
`-14-
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`

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`4:12-cv-11758-GAD-MKM Doc # 129 Filed 08/21/13 Pg 15 of 31 Pg ID 7079
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`Nichia’s construction improperly omits the requirement that the fluorescent materials be
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`“independently arranged.” Thus, the Court adopts Everlight’s proposed construction of this term.
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`D.
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`1.
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`‘215 Patent’s Disputed Terms
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`“Al,” “Ti,” “Pt,” “Au”
`
`Everlight’s Proposed Construction
`Al-“Aluminum”; Ti-“Titanium”; Pt- “Platinum”; Au - “Gold”
`Nichia’s Proposed Construction
`“aluminum that is as close to pure aluminum as practicable at the time of the invention (i.e. at
`least 99.99% pure aluminum)”
`
`“titanium that is as close to pure titanium as practicable at the time of the invention (i.e. at least
`99.99% pure titanium)”
`
`“platinum that is as close to pure platinum as practicable at the time of the invention (i.e. at
`least 99.99% pure platinum)”
`
`“gold that is as close to pure gold as practicable at the time of the invention (i.e. at least
`99.99% pure gold)”
`
`Claim 1 discloses the method for creating the contact on an n-type III-V semiconductor,
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`which comprises “the steps of depositing Al . . . then depositing Ti. . . then depositing Pt. . . then
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`depositing Au . . .” ‘215 Patent at 6:4-19. Everlight argues that the chemical symbols “Al,” “Ti,”
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`“Pt,” and “Au” are well known abbreviations for the metals aluminum, titanium, platinum and gold.
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`Everlight further asserts that Nichia improperly reads into the terms a limitation that each metal be
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`“as close to pure as practicable at the time of the invention (i.e. at least 99.99% pure [metal].)”
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`The disclosure begins with the term “preferably,” which indicates an embodiment, and does
`
`not impose a requirement. See ‘215 Patent at 2:49-52 (“Most preferably, the base layer consists
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`essentially of Al, the firs barrier layer consists essentially of Ti, the second barrier layer consists
`
`-15-
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`

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`4:12-cv-11758-GAD-MKM Doc # 129 Filed 08/21/13 Pg 16 of 31 Pg ID 7080
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`essentially of Pt and the top layer consists essentially of Au.”); see also Cordis Corp. v. Medtronic
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`Ave., 339 F.3d 1352, 1357 (Fed. Cir. 2003) (“[U]se of the term ‘preferably’ makes clear that the
`
`language describes a preferred embodiment , not the invention as a whole.”). Also, the specification
`
`describes several other embodiments with varying levels of impurities in the metals. ‘215 Patent at
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`3:61-62 (“The base layer desirably consists essentially of aluminum, with or without some
`
`titanium.”); Id. at 4:11(“Each of these layers may include minor amounts of impurities which do not
`
`materially affect the performance of the finished contact as discussed below.”) Thus, there is no
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`intrinsic support for Nichia’s 99.99% purity restriction.
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`Nichia is also incorrect in arguing that the ‘215 Patent provides for only two options for the
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`purity of the metals. In addition to the embodiment that each metal be “at least about 75% of such
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`metal” (‘215 Patent at 4:10) and “as close to a pure single metal layer as practicable,” (Id. at 4:17-20)
`
`the ‘215 Pa