Case 4:12-cv-11758-GAD-MKM ECF No. 509, PageID.41158 Filed 04/30/15 Page 1 of 19
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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 I 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
`Tuesday, April 7, 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
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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 I 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
`Tuesday, April 7, 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. 509, PageID.41159 Filed 04/30/15 Page 2 of 19
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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. 509, PageID.41160 Filed 04/30/15 Page 3 of 19
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`Detroit, Michigan
`Tuesday, April 7, 2015 - 8:25 a.m.
`THE CLERK:
`All rise.
`The United States District
`Court for the Eastern District of Michigan is now in session.
`Honorable Gershwin A. Drain presiding.
`Calling Civil Action Everlight Electronics Company
`versus Nichia Corporation, Number 12-11758.
`Counsel, please put your appearance on the record.
`MR. NIMROD: Ray Nimrod from Quinn Emanuel on
`behalf of Everlight, and with me is Matt Traupman from Quinn
`Emanuel, Anastasia Fernands from Quinn Emanuel, and we have a
`corporate representative from Everlight, Bernd Kammerer.
`MR. PALIZZI: Mike Palizzi from Miller Canfield.
`With me in the back is Mike Simoni as well.
`Steven Rizzi
`MR. RIZZI: Good morning, your Honor.
`of Foley and Lardner on behalf of Defendant Nichia Corporation.
`With me is Lisa Mankofsky, John Trentacosta, Ramy Hanna, and
`Ryan Schmid, also Foley and Lardner, and we have Dr. Daniel
`Doxsee as a corporate representative for Nichia.
`*
`*
`*.
`THE COURT: All right.
`I'm ready to start giving the preliminary
`instructions.
`Does anybody need to take another break, or,
`okay I think I'll just head right into it.
`All right.
`Ladies and gentlemen, I'm required to
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`Case 4:12-cv-11758-GAD-MKM ECF No. 509, PageID.41161 Filed 04/30/15 Page 4 of 19
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`When we
`give you some preliminary instructions on the case.
`finish those instructions, I'm going to have you watch a video
`and it really describes in a fair amount of detail the whole
`patent process.
`So you can have that as background to kind of
`help your understanding and what's going on and what is at
`issue here.
`
`So, members of the jury, now that you have been
`sworn, I have the following preliminary instructions for your
`guidance on the nature of the case and your role as jurors.
`This is a patent case.
`The patents involved in
`this case relate to light emitting diode, or LED devices and
`more specifically, phosphor-based LED devices that emit, that
`is, give off white light by combining light emitted from a
`semiconductor chip with light emitted from certain powders
`known as phosphors.
`During the trial, the parties will offer testimony
`to familiarize you with the technology.
`For your convenience,
`parties have also prepared a glossary of some of the technical
`terms to which they may refer during the trial, which will be
`distributed to you.
`Nichia is the owner of two patents, which are
`identified by the United States Patent and Trademark Office by
`number.
`The first has the number 5998925, which likely will
`be referred to in its, in this trial as the '925 patent.
`The second patent has the number 7531960, which
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`Case 4:12-cv-11758-GAD-MKM ECF No. 509, PageID.41162 Filed 04/30/15 Page 5 of 19
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`will likely be referred to in this trial as the '960 patent.
`These patents may also be referred to as Nichia's
`
`patents.
`
`Everlight started this lawsuit by filing what is
`called a declaratory judgment action concerning the '925 and
`'960 patents.
`When a declaratory judgment action is filed,
`the company filing it can seek a judgment from the court
`declaring another company's patents invalid, unenforceable or
`not infringed.
`Such a suit can be filed if the controversy
`between the parties is of sufficient immediacy and reality to
`warrant the attention of the court.
`When a company such as Everlight files a
`declaratory judgment action, a patent holder such as Nichia may
`file counter claims for patent infringement against the company
`filing the declaratory judgment action.
`Nichia did that and filed counterclaims asserting
`that Everlight infringes the '925 and '960 patents.
`Patents
`are granted by the United States Patent and Trademark Office,
`sometimes called the PTO or the patent office.
`A patent gives the owner the right to exclude
`others from making, using, offering to sell, or selling the
`patented invention within the United States or importing it
`into the United States.
`During the trial the parties may offer testimony
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`Case 4:12-cv-11758-GAD-MKM ECF No. 509, PageID.41163 Filed 04/30/15 Page 6 of 19
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`to familiarize you with how one obtains a patent from the PTO,
`but I will give you a general background here.
`To obtain a patent and application for a patent
`must be filed with the PTO.
`The application includes a
`specification which should have a written description of the
`invention telling what the patent is, how it works, and how to
`make and use it so as to enable others skilled in the art to do
`so.
`The specifications include with one or more numbered
`sentences or paragraphs.
`These are called the claims of the
`patent.
`The purpose of the claims is to particularly point out
`what the application regards as the invention and to define the
`scope of the patent owner's exclusive rights.
`After an application for a patent is filed with
`the PTO, the application is reviewed by a trained PTO examiner.
`The examiner reviews the patent application to determine
`whether the claims are patentable and whether the specification
`adequately describes the invention claimed.
`In examining a
`patent application, the patent examiner searches records
`available to the PTO for what is referred to as prior art, and
`he or she also reviews prior art submitted by the applicant.
`When the parties are done presenting the evidence,
`I will give you more specific instructions as to what
`constitutes prior art in this case.
`But, generally, prior art
`is technical information and knowledge that was known to the
`public either before the invention by the applicant or more
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`than a year before the filing date of the patent application.
`The patent examiner considers, among other things,
`whether each claim defines an invention that is new, useful and
`not obvious in view of this prior art.
`Following the prior art search and examination of
`the applicant, the patent examiner advises the applicant in
`writing what the patent examiner has found and whether any
`claim is patentable.
`This writing from the patent examiner is
`called an office action.
`More often than not the initial
`The
`office action by the patent examiner rejects the claims.
`applicant then responds to the office action sometimes changes
`the claims or submits new claims.
`This process may go back and
`forth between the patent examiner and the applicant for several
`months or even years until the patent examiner is satisfied
`that the application and claims are patentable.
`At that time
`the PTO issues or grants a patent with the allowed claims.
`The collection of papers generated by the patent
`examiner and the applicant during this time of corresponding
`back and forth is called the prosecution history.
`You may
`also hear the prosecution history referred to as the file
`history or the file wrapper.
`A company is said to be infringing on claims of a
`patent when it, without permission from the patent owner,
`imports, makes, uses, offers for sale, or sells the patented
`invention as defined by the claim within the United States
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`Case 4:12-cv-11758-GAD-MKM ECF No. 509, PageID.41165 Filed 04/30/15 Page 8 of 19
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`before the term of the patent expires.
`A patent owners who believes a company is
`infringing on the exclusive rights of the patent may bring a
`lawsuit to attempt to stop the alleged infringing acts and to
`potentially recover damages which generally is money paid by
`the infringer to the patent owner to compensate for harm caused
`by the infringement.
`The patent owner must prove infringement
`of the claims of the patent.
`A patent is presumed to be valid. In other words,
`it is presumed to have been properly granted.
`But that
`presumption of validity can be overcome if clear and convincing
`evidence is presented that proves the patent is invalid.
`One
`example of a way in which the presumption may be overcome is if
`the PTO has not considered, for whatever reason, invalidating
`prior art that is presented to you.
`A party accused of allegedly infringing a patent
`can deny engaging in infringing activity and can also, and also
`can defend by proving the asserted claims of the patent are
`invalid.
`
`The accused infringer must prove invalidity by
`clear and convincing evidence, and I will discuss more about
`this topic later.
`I will now briefly explain the parties basic
`contentions in more detail.
`Everlight contends that the '925 and '960 patents
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`are invalid. Everlight contends that each of the asserted
`claims of the '925 and the '960 patent are invalid for one or
`more reasons, including that they are anticipated and/or
`obvious over the prior art or do not have an adequate written
`description or are not enabled.
`Invalidity of the asserted patent claims is a
`defense to infringement.
`Therefore, even though the PTO
`examiner has allowed the claims of the '925 and '960 patents,
`you, the jury, have the ultimate responsibility for deciding
`whether the claims of the '925 and '960 patents are valid. In
`other the words, whether the claims were properly allowed by
`the PTO.
`
`Everlight must prove the facts underlying its
`invalidity argument by clear and convincing evidence in order
`to overcome the presumption of validity. Clear and convincing
`evidence means that it is highly probable that the fact is
`true.
`This is a higher standard than the more likely than not
`standard, but it is not so high as the standard used in
`criminal law which is evidence beyond a reasonable doubt.
`Nichia denies that the alleged claims of the '925
`and '960 patents are invalid based on any and all of the
`arguments raised by Everlight.
`Nichia contends that Everlight makes, uses, offers
`to sell or sells white LED products that infringe Claims 2, 3,
`5, 6, and 8 of the' '925 patent.
`And Claims 1, 2, 4, 8-14,
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`and 16 through 21 of the '960 patent.
`Nichia must prove that Everlight infringes the
`'925 patent and the '960 patent by a preponderance of the
`evidence.
`That means that Nichia must show that it is more
`likely that Everlight's accused products infringe more than
`they do not infringe.
`There are two ways in which a patent claim can be
`directly infringed.
`First, a claim can be literally
`infringed.
`
`Second, a claim can be infringed under what is
`called the doctrine of equivalence.
`To determine
`infringement, you must compare the accused products with each
`claim from the '925 and '960 patents that Nichia asserts is
`infringed.
`It will be my job to tell you what the language of
`the patent claims mean.
`You must follow my instructions as to
`the meaning of the patent claims.
`A patent claim is literally infringed only if
`Everlight's accused products include each and every element in
`that patent claim.
`If Everlight's accused products do not
`contain one or more elements in that claim, Everlight does not
`literally infringe that claim.
`You must determine literal infringement with
`respect to each patent claim individually.
`Under the doctrine
`of equivalence you may find that Everlight's accused products
`infringe a claim of the '925 patent, even if not every element
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`of that claim is presented in Everlight's accused products.
`However, to do so, you must find that there is an
`equivalent part in Everlight's accused products for each
`element of the patent claim that is not literally present in
`Everlight's accused products.
`Nichia must prove that it is more likely than not
`that Everlight's accused products contain the equivalent of
`each element of the claimed invention that is not literally
`presented in the accused products.
`And Everlight denies that it is infringing either
`the '925 patent or the '960 patent.
`We are about to commence the opening statements in
`the case. Before we do that, I want to explain the procedures
`that we, that will be followed during the trial and the format
`of the trial.
`This trial will be conducted in seven phases.
`We have completed the first phase, which was to select you as
`jurors.
`We are now about to begin the second phase, the
`opening statements.
`The opening statements of the lawyers are
`statements about what each side expects the evidence to show.
`The opening statements are not evidence for you to consider in
`your deliberations.
`The evidence comes in in the third phase
`when the witnesses will take the witness stand and the
`In the
`documents will be offered and admitted into evidence.
`third phase Everlight will go first in calling witnesses to the
`witness stand because Everlight started this action by filing
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`These witnesses will be
`its declaratory judgment claims.
`questioned by Everlight's counsel in what is called direct
`examination.
`
`After the direct examination of a witness is
`completed, Nichia will have an opportunity to cross-examine the
`witness.
`After Everlight has presented its witnesses, Nichia
`will call its witnesses who will also be examined and
`cross-examined.
`The parties may present the testimony of a
`witness by reading from their deposition transcripts or by
`playing a video of the witness's deposition testimony.
`A deposition is the sworn testimony of a witness
`taken before trial and is entitled to the same consideration as
`if the witness had testified here at trial in open court.
`The evidence often is introduced piecemeal,
`meaning that all of the evidence relating to an issue is not
`presented all at one time, but at different times during the
`trial.
`So you need to keep an open mind as the evidence comes
`in.
`You are to wait until all the evidence comes in before
`you make any decisions.
`In other words, keep an open mind
`throughout the entire trial.
`In the fourth phase Everlight will put in more
`testimony, which will be its rebuttal case and then Nichia will
`put in more testimony which will be its rebuttal case.
`After we conclude the fourth phase, the lawyers
`again have an opportunity to talk to you in what is called
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`Again what the
`closing arguments, which is the fifth phase.
`lawyers say is not evidence.
`The closing arguments are not
`evidence for you to consider in your deliberations.
`The sixth phase of the trial is when I read to you
`the final jury instructions.
`In that phase I will instruct
`you on the law.
`I have already explained to you a little bit
`about the law.
`But in the sixth phase of the trial I will
`explain the law in much more detail.
`In the seventh phase of the trial it will be time
`for you to deliberate.
`You can then evaluate the evidence,
`discuss the evidence among yourselves and make a decision in
`the case.
`
`You are the judges of the facts, and I decide
`questions of law.
`I will explain the rules of law that apply
`in the case.
`And I will also explain the meaning of the
`patent claim language.
`You must follow my explanations of the
`law and the patent claim language even if you do not agree with
`me.
`Nothing I say or do during the course of the trial is
`intended to indicate what your verdict should be.
`I'm now going to play a video that explains what a
`
`patent is.
`
`And let me also tell you that there's some,
`there's a glossary of patent terms.
`And in some respects I
`probably should give you the term and give you a definition.
`I think what I'm going to do is have my career law clerk, Mrs.
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`Dehn, project the terms up on the screen, if we can do that.
`I'm not sure how this is going to work, but it
`beats me reading them to you.
`I'm not sure if they're going
`THE COURT:
`Okay.
`to be able to see that, because I can't see it -- blow it up a
`little bit more and pull it down and move it up.
`Can you all see that?
`JURORS:
`Yes.
`THE COURT:
`And there's the terms, the glossary of
`patent terms and, again, I think everybody can read and write.
`I don't think anybody here had any trouble reading so there's a
`definition or application.
`There's a definition for claims.
`File wrapper.
`License.
`And don't feel like you have to totally understand
`this all right now, because you're going to get a binder,
`that's going to have these very sheets in the binder for you,
`so you can process the words a lit more thoroughly later on.
`So there's the word license.
`Office action.
`Ordinary skill in the art.
`Then there's patent examiners.
`Patent examiners.
`Prior art.
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`Case 4:12-cv-11758-GAD-MKM ECF No. 509, PageID.41172 Filed 04/30/15 Page 15 of 19
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`And I've talked about these
`
`Prosecution history.
`things a little bit.
`References.
`Specifications, then there's aside from that,
`Glossary of patent terms, then there's another glossary of
`technical terms and again:
`Aluminum.
`Cerium.
`CFL.
`CRT.
`Gadolinium.
`Gallium garnet frost.
`Indium, inorganic compound.
`Lanthanum.
`LED.
`LuAG.
`Lutetium.
`Nitride phosphor.
`Organic compound.
`Oxygen.
`Phosphor.
`Resin.
`Samarium.
`Scandium p.
`Phosphor.
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`TAG, which is an abbreviation.
`Terbium.
`Wavelength.
`YAG.
`And yttrium.
`So those are the terms you'll be dealing with in
`
`this case.
`
`Now, I do want to show you a video, again, that's
`been produced by the federal judicial center which is the
`center that provide instruction to judge and litigators, and it
`really talks about the patent process.
`How patents are
`secured. It talks about invalidity, and infringement and this
`runs about 20 minutes and so I will start you on the video.
`(At 11:43 a.m. to 11:59 a.m. video played in open
`court)
`We're back on the record
`All right.
`THE COURT:
`now with the case.
`Hopefully that little video was somewhat
`helpful in terms of explaining the patent process to you, and
`helping you to learn a little bit about what the case is about.
`I don't think we can go much further today, at
`least not into the opening statements of the lawyers.
`So I think we're going to break now for the rest
`
`of the day.
`
`Like I said the schedule will be from 8:30 to
`12:30 and it's really important for you all of you to be here
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`Case 4:12-cv-11758-GAD-MKM ECF No. 509, PageID.41174 Filed 04/30/15 Page 17 of 19
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`17
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`promptly and punctually, because we cannot get started on the
`case until everybody is here.
`And so when people start coming
`late, five or ten minutes, or even 15 minutes, then that will
`make a two week trial stretch out into a longer trial.
`So
`please be prompt and punctual in returning here tomorrow
`morning and in the days in the future on the case.
`Like I said, if we can start every morning at
`about 8:30 and go 'til 12:30, or maybe a little later, we
`should be able to do the case in two weeks.
`Another thing I want tell you is again don't
`discuss the case among yourselves or with anyone else.
`When
`you go home this evening, people are going to be asking you
`what the case is about and what happened, your can just tell
`them you're on a case and leave it at that without going into
`any details about the case.
`I may have a few more brief instructions for you
`tomorrow before we get started but that will be very, very,
`short and then the lawyers will pretty much takeover the case
`at that point and proceed with the opening statements and the
`evidence.
`
`They go up -- My case
`Let's see.
`All right.
`manager will give you some further instructions that you may
`need about the case but with that -- and let me just, Ms.
`Evans, you're a juror on this case, and I want you to make sure
`that you keep your eyes open because if your eyes are not open
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`Case 4:12-cv-11758-GAD-MKM ECF No. 509, PageID.41175 Filed 04/30/15 Page 18 of 19
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`18
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`I'm going to assume you're sleeping and I don't want to be
`calling you out during this trial.
`So, please be attentive, and, you know, for all of
`you, you know, patent cases are not the most exciting cases to
`sit on, in fact, some people feel they are pretty boring, but
`the parties have a right to have you decide their case and
`you've got to be tentative, you've got to listen and see what's
`going on.
`
`If you
`So it's really important to be attentive.
`need to drink a couple extra cups of coffee to stay awake, do
`so, but you've got to give them your full attention.
`With that we will be in recess until tomorrow
`morning at 8:30.
`(At 12:03 jury excused)
`*
`*
`*
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`Case 4:12-cv-11758-GAD-MKM ECF No. 509, PageID.41176 Filed 04/30/15 Page 19 of 19
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`C E R T I F I C A T E
`I, Merilyn J. Jones, Official Court Reporter of the
`United States District Court, Eastern District of Michigan,
`appointed pursuant to the provisions of Title 28, United States
`Code, Section 753, do hereby certify that the foregoing pages
`1-19, inclusive, comprise a full, true and correct transcript
`taken in the matter of Everlight Electronics Company, Limited
`versus Nichia Corporation, et al, 12-cv-11758 on Tuesday, April
`7,2015.
`
`/s/Merilyn J. Jones
`Merilyn J. Jones, CSR 0935, RPR
`Federal Official Reporter
`231 W. Lafayette Boulevard, Suite 123
`Detroit, Michigan
`48226
`Date: April 21, 2015
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`
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