Case 4:12-cv-11758-GAD-MKM ECF No. 508, PageID.41011 Filed 04/30/15 Page 1 of 147
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`1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`EVERLIGHT ELECTRONICS CO.,
`LTD, and EMCORE CORPORATION,
`Plaintiffs,
`
`No. 12-cv-11758
`
`v
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
`Defendants.
`_________________________/
`
`JURY TRIAL - VOLUME II of XII
`EXCERPTS OF PROCEEDINGS BEFORE THE HONORABLE GERSHWIN A. DRAIN
`UNITED STATES DISTRICT JUDGE
`Theodore Levin United States Courthouse
`231 West Lafayette Boulevard
`Detroit, Michigan
`Wednesday, April 8, 2015
`
`APPEARANCES:
`
`For the Plaintiffs:
`
`MR. A. MICHAEL PALIZZI
`MR. MICHAEL C. SIMONI
`Miller, Canfield, Paddock and
`Stone, PLC
`150 W. Jefferson Avenue, Suite 2500
`Detroit, Michigan
`48226
`(313) 486-7645
`MR. RAYMOND N. NIMROD
`MR. MATTHEW A. TRAUPMAN
`MS. ANASTASIA M. FERNANDS
`Quinn Emanuel Urquhart & Sullivan,
`LLP
`51 Madison Avenue, 29th Floor
`New York, New York 10010
`(212) 849-7412
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`1
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`EVERLIGHT ELECTRONICS CO.,
`LTD, and EMCORE CORPORATION,
`Plaintiffs,
`
`No. 12-cv-11758
`
`v
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
`Defendants.
`_________________________/
`
`JURY TRIAL - VOLUME II of XII
`EXCERPTS OF PROCEEDINGS BEFORE THE HONORABLE GERSHWIN A. DRAIN
`UNITED STATES DISTRICT JUDGE
`Theodore Levin United States Courthouse
`231 West Lafayette Boulevard
`Detroit, Michigan
`Wednesday, April 8, 2015
`
`APPEARANCES:
`
`For the Plaintiffs:
`
`MR. A. MICHAEL PALIZZI
`MR. MICHAEL C. SIMONI
`Miller, Canfield, Paddock and
`Stone, PLC
`150 W. Jefferson Avenue, Suite 2500
`Detroit, Michigan
`48226
`(313) 486-7645
`MR. RAYMOND N. NIMROD
`MR. MATTHEW A. TRAUPMAN
`MS. ANASTASIA M. FERNANDS
`Quinn Emanuel Urquhart & Sullivan,
`LLP
`51 Madison Avenue, 29th Floor
`New York, New York 10010
`(212) 849-7412
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`Case 4:12-cv-11758-GAD-MKM ECF No. 508, PageID.41012 Filed 04/30/15 Page 2 of 147
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`APPEARANCES:
`For the Defendants:
`
`MR. STEVEN J. RIZZI
`MR. RAMY E. HANNA
`MR. RYAN SCHMID
`Foley and Lardner, LLP
`90 Park Avenue, 37th Floor
`New York, New York 10016
`(212) 682-7474
`MS. LISA S. MANKOFSKY
`Foley & Lardner, LLP
`3000 K Street N. W,
`Washington, DC
`20007
`(202) 672-5300
`MR. JOHN R. TRENTACOSTA
`Foley & Lardner
`500 Woodward Avenue
`Detroit, Michigan
`(313) 234-2800
`
`48226
`
`Suite 600
`
`Reported by:
`
`Merilyn J. Jones, RPR, CSR
`Official Federal Court Reporter
`merilyn_jones@mied.uscourts.gov
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`Case 4:12-cv-11758-GAD-MKM ECF No. 508, PageID.41013 Filed 04/30/15 Page 3 of 147
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`TABLE OF CONTENTS
`PLAINTIFF
`WITNESSES:
`BERND KAMMERER
`Direct examination by Mr. Palizzi
`ERIC BRETSCHNEIDER
`Direct examination by Mr. Traupman
`
`WITNESSES:
`None
`
`DEFENDANT
`
`OTHER MATERIAL IN TRANSCRIPT:
`Plaintiffs' Opening Statement
`Defendants' Opening Statement
`
`PAGE
`73
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`97
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`4
`45
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`EXHIBITS:
`
`Identified
`
`Received
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`Case 4:12-cv-11758-GAD-MKM ECF No. 508, PageID.41014 Filed 04/30/15 Page 4 of 147
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`4
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`Detroit, Michigan
`Wednesday, April 8, 2015
`(Excerpt of Proceedings - Judge's Opening Instructions
`not transcribed)
`
`*
`*
`*
`PLAINTIFFS' OPENING STATEMENT
`MR. NIMROD:
`Good morning, ladies and gentlemen.
`This is a case about a company, the Defendant
`Nichia here, not playing by the rules for patents.
`The Court
`played you a video yesterday that explained some of the rules
`for patents.
`
`And Everlight contends that Nichia did not play by
`the rules when it obtained the patents and is not playing by
`the rules in trying to assert those patents against Everlight.
`And that is why we're here today seeking a decision from you,
`the jury, that Nichia's patents are invalid for failure to
`follow the rules of patents and for lacking any invention.
`Let me reintroduce myself again.
`My name is Ray
`With me here today are my colleagues, Matt Traupman,
`Nimrod.
`Anastasia Fernands, co-counsel from Miller Canfield, Mike
`Palizzi and Mike Simoni.
`We also have at counsel table our
`corporate representative, Bernd Kammerer.
`Mr. Kammerer is the president and chief operating
`officer of Everlight Americas.
`You will be hearing testimony
`from Mr. Kammerer.
`In fact, he will be our first witness.
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`Case 4:12-cv-11758-GAD-MKM ECF No. 508, PageID.41015 Filed 04/30/15 Page 5 of 147
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`Everlight
`Who are the parties on our side?
`Electronics Company is one of the plaintiffs here.
`It is an
`LED manufacturer located in Taiwan, and it has been making LEDs
`for over 30 years.
`Everlight Americas is a subsidiary that
`sells those LEDs in the United States.
`Now, as you have heard repeatedly now, this case
`is about LEDs, which are light-emitting diodes, LEDs.
`And an
`LED is a type of semiconductor.
`A semiconductor is something
`that conducts electricity.
`An LED is a semiconductor that when
`you apply electricity to it, it emits light.
`That's why it's a
`light-emitting diode.
`LEDs have been part of our lives for quite a while
`now, but more recently it's very much exploded as to how much
`LEDs are used.
`Early uses were, for example, in calculators
`and some of the old mobile phones, with little green and red
`LEDs.
`
`But more recently as we see on the demonstrative
`I'm showing here, LEDs have expanded in their use; their use
`in, for example, a display sign at Comerica Park; touch
`screens, the backlight of that, that's all from LEDs; mobile
`phones, of course; the displays on the game devices, et cetera,
`those are all coming from LEDs.
`Now, LEDs have also moved into the light bulb
`market, as well.
`For many years incandescent bulbs were the
`only bulbs that were being sold.
`But the problem with the
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`Case 4:12-cv-11758-GAD-MKM ECF No. 508, PageID.41016 Filed 04/30/15 Page 6 of 147
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`incandescent bulb is that it burns too hot and consumes too
`much energy.
`
`An incandescent
`Let me show you how that works.
`bulb has a little wire here connecting up, when you apply
`electricity, it heats up.
`But a lot of the electricity,
`instead of going to light, goes to heat, which is just
`dissipated into the room, so it's very inefficient, consumes
`too much energy.
`An LED light bulb, we opened up the bulb here
`shown on the right, on the inside of this bulb, instead of a
`wire are these little yellow chips you see here.
`Each one of
`those little chips is an LED package.
`Each one of them is an
`LED package.
`And when you apply electricity, when you screw it
`into your socket and turn it on, those all light up and provide
`light.
`
`LEDs are for more efficient than incandescent
`They don't burn hot like that and they last far longer;
`bulbs.
`you're going to hear about that, years longer than incandescent
`bulbs.
`
`Not because of the
`Now, why are we here today?
`bulb-type issue, but we are here because of these little yellow
`kind of packages, those types of products.
`They are called LED
`packages that are found in many products, the kind of products
`I showed you on the earlier slide.
`As I mentioned, Everlight is a manufacturer of
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`It makes many different kinds of LEDs, different colors.
`LEDs.
`What is at issue here today are the LED packages that Everlight
`sells that are various tones of white, white LEDs.
`So there
`are red LEDs, for example, blue and other colors.
`What is at
`issue here today are white LEDs.
`I'm going to show you some examples of some of the
`products that you will be asked to make some decisions about.
`These are 12 white Everlight LED packages, 12
`different ones.
`There's actually over a hundred, hundreds of
`products at issue in the case, but these are 12 examples.
`Just
`like I showed you in the light bulb, these are used in
`different products, and when electricity is applied, these will
`emanate white light.
`Now, you will see, of course, these all look
`yellow on the top, but they turn white when you turn them on.
`The reason for that is, and we will talk a little bit more
`about that, is that the -- there's actually a source of blue
`underneath the yellow, so when you apply electricity to it, the
`blue and the yellow combine to make white light.
`Your eye then
`perceives that as white light, because they are complementary
`colors.
`
`And just very briefly, the experts will get into
`As his Honor informed you, of course, the evidence comes
`this.
`in from the witnesses.
`So experts will explain all this to you
`in more detail.
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`Case 4:12-cv-11758-GAD-MKM ECF No. 508, PageID.41018 Filed 04/30/15 Page 8 of 147
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`But here we have just shown an example of an LED
`lamp or a chip and what is shown on the right here is, there is
`a little chip that we have shown in blue just to designate that
`it emits blue light.
`And then there is a yellow powder, a
`phosphor, it's called, that when the blue light, the
`electricity is applied -- these are wires that are coming off,
`and it's a very, very, tiny product, and they have wires or
`conducting material -- that when electricity is applied this
`chip emits blue light.
`The blue light, some of it passes through
`unobstructed, but other blue light hits the phosphor and the
`phosphor turns it into yellow.
`It takes the blue light and
`converts it into yellow.
`So then what happens is, the blue and
`the yellow combine to make white light.
`As I said, the yellow is a powder; it's a
`phosphor; it's a yellow powder.
`So it's put into like a
`gel-like material when they make it that then hardens on top of
`the chip.
`So it's around the chip and hardens in there in a
`plastic resin.
`Now, this lawsuit, as I said, involves white LEDs
`that Everlight makes that it sells to customers in the United
`States.
`And Everlight initiated this action because Everlight
`believes that the Nichia patents are not valid and that their
`products do not infringe Nichia's patents.
`Okay.
`Before I get into the details of the
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`Case 4:12-cv-11758-GAD-MKM ECF No. 508, PageID.41019 Filed 04/30/15 Page 9 of 147
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`patents, I will talk about why we believe the patents are
`invalid and why they don't follow the rules of patents, but
`before doing that, I want to get into a little bit about LEDs
`and their history and colors.
`As I
`Today LEDs come in a wide variety of colors.
`showed you the Comerica Park sign, any color you want can come
`out of that.
`They just do different designations with the way
`they program it and they can show just about anything.
`But it was not always that way before.
`The
`primary colors of LEDs were developed at different times, with
`blue being the most recent one.
`So let's talk a little bit
`about colors before getting to LEDs.
`Now, as we learned in school when we were younger,
`for paint and pigments there are three primary colors; red,
`blue, and yellow.
`And when you combine, for example, blue and
`yellow, you get green.
`When you combine red and blue, you get
`a purplish color.
`When you combine all three, you get black,
`because it's actually blocking when they're combined together.
`Colors for visible light are a little different,
`the rules are a little different.
`For visible light the three
`primary colors are not red, yellow and blue, they are actually
`red, green and blue.
`Those are the three primary colors for
`visible light.
`And when you combine them together, instead of
`making black, you make white light.
`Your eye perceives the
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`And this is something
`three combined together as white light.
`that has been known for quite a long time.
`You'll
`And let me just show you one other thing.
`see the blue here, what's right across from it is yellow.
`Blue
`and yellow are called complementary colors for visible light.
`When you combine blue and yellow, you get white light.
`And I
`brought a little demonstrative to show that.
`You'll see here, I'm just going to tilt it up a
`little so it doesn't get too bright in your eyes, but this is a
`blue source of light.
`If I take yellow and put it on top of
`it, you'll see it turns white because they are complementary
`colors.
`
`Now, then if you have green, red, and blue, you
`can make pretty much any color you want.
`You can mix them how
`you want in different amounts and you can make all the
`different colors on the color wheel.
`And, of course, you also
`can make white, if you want to, for example, by mixing blue and
`yellow, the complementary colors.
`Now, if you want to use LEDs as a light source,
`then, and you want to make the different colors to make white,
`it's important, then, to have the different color sources.
`And
`since white light is what is emanated from the sun, it's
`probably the most important one to make.
`It's used inside your
`homes, in offices, industrial applications.
`These are white
`applications.
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`So the evidence will show here that red LEDs, if
`we go back, red LEDs were developed in the early 1960's.
`And
`green LEDs were developed shortly thereafter.
`You might ask yourself, then why is it that this
`explosion in the use of LEDs didn't take place for quite some
`time after that?
`One of the reasons was, was that they had
`trouble developing a blue LED.
`If you have red and green, which is what they were
`able to develop, you could make red, of course, you could make
`yellow, you can make green and things in between there, but you
`couldn't make blue, and more importantly, you couldn't make
`white.
`
`So this might be fine for a traffic light and
`other applications, maybe a blinking red light on some of those
`old game things and phones, but you could not make white light
`with this.
`
`So, of course, the next logical step was to make a
`And, of course, LED-makers knew how to combine
`
`blue LED.
`colors.
`
`The concept of the color wheel, of mixing red and
`green and blue and the complementary colors of blue and yellow,
`that has been known for 300 years.
`It was discovered by Sir
`Isaac Newton 300 years ago.
`So this is an old concept.
`It's not like the blue -- the LED makers thought,
`well, how do I make white?
`They knew how to do it.
`They just
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`So
`
`couldn't make that blue LED in a commercially feasible way.
`they kept working on that.
`In the meantime, of course, there were other
`sources of lighting.
`Of course, we have what are called
`mercury vapor lamps.
`Those are the kinds of lamps you would
`see, for example, in streetlights.
`They are also used in what
`are called CFLs, which I will talk about in a minute.
`Mercury vapor lamps were used in street lamps and
`in stadium lighting, but mercury vapor lamps can be bluish in
`color.
`
`So the evidence will show, then, that scientists,
`LED or lighting scientists, knowing the color wheel for visible
`light and complementary colors, combined blue mercury vapor
`light sources with yellow to try and make it more white.
`And the evidence will also show that this was
`known decades before the supposed invention here by the Nichia
`scientists.
`
`Persons also knew the source of yellow, sources of
`One way was to use a phosphor, like I talked about
`yellow.
`earlier, a yellow powder.
`I brought a little just to show of
`that.
`
`This is a yellow powder, it's called YAG, and
`that's one of the terms you're going to hear a lot about in
`this trial.
`The element is called yttrium, that's what the Y
`stands for, aluminum, and garnet.
`Garnet is the structure of
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`But it's referred to in this case, and as I say,
`the crystal.
`you'll hear it quite a bit, as YAG, Y-A-G.
`So the evidence will show that people used YAG in
`combination with the blue light source, mercury vapor, to make
`white, because they knew, of course, they were complementary
`colors.
`
`This is described, for example, in a publication
`that one of the experts will talk about, Dr. Bretschneider,
`which is from -- as you will see, it's from 1977, and it's by
`an author, Mary Hoffman.
`And she is talking about improved
`color rendition in high-pressure mercury vapor lamps.
`And what
`she is doing is, she is taking the blue HG mercury radiation
`and combining it with a phosphor, YAG, explaining how you can
`take that to make the blue light more white.
`So this was known
`for applications like mercury vapor lamps in the 1970s.
`So that was not the only group that knew about
`using YAG for that application.
`Another example is in 1988.
`Once again, at this point they don't have the blue LEDs, so
`they're working with what may be something that's close or the
`next-best kind of thing, the mercury vapor.
`And as you know from bulb purposes, light bulbs,
`we had the incandescent bulbs that we all grew up with, and
`then the next thing that they said you should start buying is
`the CFLs.
`They look like swirls sometimes in the store; also,
`they have the U, upside-down U-shape, like the one shown here.
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`That's actually a mercury vapor lamp, a small version of what
`would be in the street lights.
`And the mercury vapor lamps, of
`course, have mercury inside them.
`And if you want to make the emission more white,
`what Philips did -- this a Philips, and Philips, by the way, is
`one of -- that's a major lighting manufacturer in the world,
`Philips, and you'll hear about that company a bit in this case.
`So this is 1988 and they wanted to make the
`mercury vapor more white.
`So what did they do?
`The experts
`will explain, they have the yttrium here, this formula here,
`it's a formula that when you apply yttrium, it's saying to use
`this yellow powder, YAG, to make the blue mercury vapor lamp
`more white.
`
`Now, while all this work was going on with mercury
`vapor lamps, people were still, of course, working on the
`elusive blue LED.
`The LEDs, of course, were still known to be the
`most efficient source of light.
`They burn more efficiently
`than CFLs.
`They don't have mercury, which, of course, is a
`benefit, and they last longer.
`So work was going on, trying to
`make blue LEDs.
`In the late 1980's two scientists from Nagoya
`University in Japan developed the first high-brightness blue
`LEDs.
`
`And in the early 1990s, Shuji Nakamura, who at
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`that time was at Nichia, and is now a professor at the
`University of California in Santa Barbara, came up with a
`commercially promising LED using gallium nitride, which we
`abbreviate as G-A-N, or GAN, GA for gallium, and N for nitride.
`And you'll hear that phrase a lot in the case, GAN, G-A-N.
`Now, once they developed a blue LED, a
`commercially promising one, which was then worked on by others
`to make it even more commercially feasible, you then had blue.
`So instead of being limited to red and green with LEDs, you now
`had blue, red and green.
`What that meant, of course, was that you could
`make various colors,and even more importantly, you could make
`white simply by combining blue with its complementary color,
`yellow, with things like YAG that had been used in the mercury
`vapor lamps.
`
`Now, no one here disputes that Dr. Nakamura and
`the two professors at Nagoya University
`were instrumental in a
`major breakthrough in the LED industry by making a commercially
`promising blue light LED.
`In fact, those three professors won
`the Nobel Prize in physics just last year for this
`breakthrough.
`The Nobel Prize Committee, even though the work
`took place in the late '80's and early 1990's, what it does is
`it looks to see what research was done, what was accomplished,
`and they look back to see what really made a big difference.
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`Case 4:12-cv-11758-GAD-MKM ECF No. 508, PageID.41026 Filed 04/30/15 Page 16 of 147
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`The Nobel Prize Committee
`And this made a big difference.
`awarded the Nobel Prize in physics to the three professors that
`I just mentioned.
`As it says right here, the Nobel Prize in physics
`honors the inventors of efficient blue LEDs, Akasaki, Amano,
`and Nakamura.
`Nakamura is a former employee of Nichia.
`Now, what did the Nobel Prize Committee say was
`the reason why that was so important?
`Why was it such a
`breakthrough?
`It says right here, efficient blue
`light-emitting diode, leading to what?
`Bright and
`energy-saving white light sources.
`Because everyone knew, this
`is what we were waiting for.
`People weren't just trying to develop blue so they
`could make a blue LED and stick it on some kind of display.
`Blue was what was so critical to try and get to white, as
`recognized by the Nobel Prize Committee.
`Then, of course, you
`could then take blue, with its complementary color, yellow, and
`make white.
`And that's why Dr. Nakamura and the two professors
`from Nagoya made such an important breakthrough.
`The people that knew, LED scientists, if I take a
`blue light, there's actually LEDs in this, and I take something
`like that yellow powder I was mentioning, if it's blue, then it
`starts to turn white as the yellow powder goes over it.
`So at that point, once you add blue, it's a simple
`thing, then, to take something like the YAG that was being used
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`Case 4:12-cv-11758-GAD-MKM ECF No. 508, PageID.41027 Filed 04/30/15 Page 17 of 147
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`in mercury vapor lamps and apply it to the new light source,
`the blue LED.
`And in fact, others did that, because it is a
`natural thing to do.
`Once you had that blue LED, you would go,
`of course, and make white.
`Which is why the Nobel Prize Committee recognized
`that that was the importance of a blue light-emitting diode.
`That's what it led to.
`It didn't take any extra inventive
`thought to say, now I have got blue, what should I do with it?
`It was obvious as can be that then you would take it to make
`white.
`That's why they were working so hard on it.
`Of course, the New York Times ran an article on
`this, as well.
`It was very important news.
`It says the 2014
`physics award went to Isamu Akasaki and Hiroshi Amano of Japan
`and Shuji Nakamura of the University of California Santa
`Barbara for the "invention of efficient blue light-emitting
`diodes, which has enabled bright and energy-saving white light
`sources."
`
`So people started doing exactly what you would
`expect them to do once they had the blue LED.
`For example, of
`course, well, the first thing they did was start
`commercializing blue LEDs.
`It takes some time once you have a
`project that's been shown in a lab to make a commercial
`product.
`
`So then blue LEDs were then -- started to be
`manufactured. And then what did people do?
`Well, as I said,
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`Case 4:12-cv-11758-GAD-MKM ECF No. 508, PageID.41028 Filed 04/30/15 Page 18 of 147
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`here's an example from 1997 where a group from the Fraunhofer
`Institute, that's like the MIT of Germany, it's a group of
`Schlatter and some others.
`And what they do, they took a blue
`chip -- Cree is one of the companies that started making blue
`chips after the professors from Japan came up with this -- and
`what they combined it with, the experts will tell you, this
`formula Y3AL5012, that's YAG.
`No one disputes, everyone here,
`that's YAG.
`So just YAG, think of it that way.
`And they did it to do what?
`To make a
`white-emitting LED.
`And they actually show a picture of it.
`Figure 6, there it is.
`Inside there is a little chip that's
`giving blue, there's some YAG in there, and then you get white
`coming out of it, because that was, in fact, the natural thing
`to do once that blue LED came out.
`Dr. Nakamura, I
`Now, this case -- excuse me.
`should say, and Nichia, were issued patents for his work, his
`part of the work on blue LEDs, but this case does not involve
`any of Dr. Nakamura's patents.
`Nichia has a separate set of
`patents on those.
`They licensed those patents.
`They made
`whatever money they were going to make off those from that
`invention.
`
`The two Nichia patents in this case are not for
`the blue LED invention.
`The patents Nichia obtained that are
`in this case came after the blue LED patents and they are
`trying to claim the use of the blue LED in combination with a
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`Case 4:12-cv-11758-GAD-MKM ECF No. 508, PageID.41029 Filed 04/30/15 Page 19 of 147
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`yellow powder like this, and say, well, that was something that
`was just sort of unexpected, it was inventive to think that you
`could take this blue and add a yellow powder to it, which had
`been done -- was being done for 20 years with mercury vapor
`lamps.
`That does not constitute an invention.
`As I said, we are not here disputing anything
`about Dr. Nakamura's contribution.
`The Nobel Prize Committee
`recognized his contribution and it also recognized what blue
`led to.
`It led to white.
`The idea that I'm taking the color
`chart and saying that I'm going to take blue and now combine it
`with yellow to make white with a common yellow source is not an
`invention.
`
`That, in fact, is what the patent video you heard
`yesterday calls obvious, and that is a patent that would be
`invalid, as the jury is entitled to find.
`So I'm going to talk about the invalidity issues,
`but I would like to first just take a quick look at the patents
`that you are going to be looking at in this case.
`And you'll
`note when we get to them that, as I said, Dr. Nakamura is not a
`named inventor on those patents.
`These are the patents of
`other Nichia scientists who said, after Dr. Nakamura came up
`with his idea, that they, too, had some inventions, but they
`didn't follow the rules, as I said, so the patents are invalid.
`The patents are actually in your juror notebooks,
`and the first patent is 5,998,925.
`And as the Judge informed
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`Case 4:12-cv-11758-GAD-MKM ECF No. 508, PageID.41030 Filed 04/30/15 Page 20 of 147
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`you, this is referred to as the '925 patent, just by the last
`three numbers.
`And the cover page gives you information, as you
`have already heard from the video, about the title and the
`inventors.
`There are four inventors on that patent.
`And then it has a filing date for the United
`States, at least, and some other information.
`And the filing
`date in the United States was July 29, 1997.
`The filing dates
`are important for determining what is prior art, as the video
`talked about, what came before the filing by the inventors in
`this application.
`Now, in this case, Nichia is asserting that
`Everlight's products infringe five claims of the '925 patent,
`Claims 2, 3, 5, 6 and 8.
`I'm going to focus on Claim 3, just as an example.
`This is just an opening statement.
`Obviously, the experts will
`get into all the claims and explain the details about that to
`you.
`But just to help you understand what the basic thing
`that's being claimed here in this Nichia patent, I've
`highlighted Claim 3 and also put in Claim 1.
`Of course, you just heard I didn't name Claim 1 as
`one of the asserted claims.
`That's because it's not being
`asserted.
`But Claim 3 and others depend from Claim 1.
`You
`will see it says, a light-emitting device according to Claim 1,
`which means that the statements in here apply to Claim 3, as
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`Case 4:12-cv-11758-GAD-MKM ECF No. 508, PageID.41031 Filed 04/30/15 Page 21 of 147
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`well, so I'm putting both up for you.
`Well, it starts with
`So what does Claim 3 claim?
`a light-emitting component, and I put that in blue, because
`basically there's a lot of words here, but it boils down to two
`components:
`One is the blue chip; and the second is the
`phosphor that's going to convert some of the light from the
`blue chip.
`The idea I just talked about, liquid mercury vapor
`lamp, blue source, put a phosphor on it, make white, change the
`wavelength and make another color, make white.
`Okay.
`So you have got a light-emitting component,
`and we go down here, this is more about what the blue is about,
`wherein said light-emitting component comprises a nitride
`compound semiconductor, and then it's got a formula.
`That
`would include the GAN-type blue LED that Dr. Nakamura invented,
`Dr. Nakamura and the two scientists from Nagoya University,
`what they helped commercialize.
`And then the second part I put in yellow, just to
`represent that's the part that has to do with what you're going
`to be doing to convert some of the blue source into yellow, and
`it says:
`A phosphor capable of absorbing part of a light
`emitted from a light-emitting component and emitting a light of
`a wavelength different from that of the absorbed light.
`And that's -- I showed you earlier that little
`diagram that just showed some of the blue came up, passed
`through, some of the blue came up and was changed from blue to
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`Case 4:12-cv-11758-GAD-MKM ECF No. 508, PageID.41032 Filed 04/30/15 Page 22 of 147
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`yellow, and that is how you are making white light.
`The claim goes on in Claim 3 to say that there are
`certain types of garnet, it's a complicated equation the
`experts can get into, but the bottom line is, everybody agrees,
`that would include YAG.
`So this claim claims the idea of using the GAN
`that Dr. Nakamura and the other professors came up with.
`And
`these inventors do not assert that that blue chip is their
`invention, the inventors in this patent.
`And it's using things
`like YAG, and they don't contend that that is their invention,
`either.
`That was used in mercury vapor lamps, as I said, and
`other sources, for years.
`They say their invention was the idea of combining
`the two together to make white light, but that is just the old
`color concept.
`That was not invented.
`In fact, the Nobel
`Prize Committee understood what everyone else in the industry
`understood right away.
`The three professors, the development
`of this blue chip led directly to white light.
`That's what
`people were doing the research for.
`It wasn't inventive, then,
`to do what was obvious after that.
`So this is not an invention
`at all.
`
`The other patent at issue is the '960 patent.
`It's in your binder, as well.
`U.S. Patent 7,531,960.
`It's the
`exact same three -- four inventors, excuse me.
`The title is
`Light-Emitting Device With Blue Light LED and Phosphor
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`Case 4:12-cv-11758-GAD-MKM ECF No. 508, PageID.41033 Filed 04/30/15 Page 23 of 147
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`Components.
`
`Blue light LED, that's Dr. Nakamura and the other
`professors, what they developed, and the phosphor would be
`things like the YAG here.
`And the earliest filing date for the
`U.S. on this application is the same date of July 29, 1997.
`And in this case Nichia is asserting Claims 1, 2,
`4 through -- excuse me -- 4, 8 through 14, and 16 to 21.
`And I'm just once again going to give you an
`example of one claim to generally understand what the patent is
`claiming.
`The experts will get into the detail of all the
`claims, of course.
`So Claim 1, as an example, requires a
`light-emitting component having gallium nitride based
`semiconductor, that's like the kind of blue LED that the three
`professors came up with.
`And then it goes on to a resin containing at least
`one phosphor capable of absorbing light from the blue color
`from this one up here, and emitting from that light-emitting
`component, emitting a second light of a wavelength different
`from that of the absorbed light.
`So once again, it's the idea of taking the blue
`LED that was invented by the others, taking the YAG and other
`things that would convert that to another color and making
`white light.
`
`There are some other limitations.
`
`They talk about
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`Case 4:12-cv-11758-GAD-MKM ECF No. 508, PageID.41034 Filed 04/30/15 Page 24 of 147
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`concentrations, and things having to do with particle size,
`which you will hear is routine and old, and in fact, almost
`required when you're dealing with these kind of materials;
`like, to make sure that when you have got a bag of this powder,
`you don't want big chunks in it.
`But there's nothing inventive
`about taking a screen and sifting it to make sure there's no
`big chunks in it.
`So you'll hear from the experts that there is
`nothing in this patent that is inventive over the simple
`concept of taking blue, combining it with yellow to make white.
`Now, why am I telling you all this?
`Because a
`patent is a government monopoly, a government-granted monopoly.
`It gives you the right to keep others out of the market with
`less competition.
`But the government permits that if you have
`a real invention.
`So it's a big deal to get a patent.
`But it comes with rules, the rules a lot of you
`heard on the video yesterday.
`One of the rules is a rule that
`a patent cannot
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