Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43445 Filed 05/22/15 Page 1 of 220
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`EVERLIGHT ELECTRONICS CO.,
`LTD, and EMCORE CORPORATION,
`Plaintiffs,
`
`v
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
`Defendants.
`_________________________/
`
`No. 12-cv-11758
`
`JURY TRIAL
`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 21, 2015
`
`APPEARANCES:
`For the Plaintiffs:
`
`MR. A. MICHAEL PALIZZI
`MR. MICHAEL C. SIMONI
`Miller, Canfield, Paddock and Stone
`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
`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,
`
`v
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
`Defendants.
`_________________________/
`
`No. 12-cv-11758
`
`JURY TRIAL
`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 21, 2015
`
`APPEARANCES:
`For the Plaintiffs:
`
`MR. A. MICHAEL PALIZZI
`MR. MICHAEL C. SIMONI
`Miller, Canfield, Paddock and Stone
`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
`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. 529, PageID.43446 Filed 05/22/15 Page 2 of 220
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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
`MR. MICHAEL KAMINSKI
`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:
`
`Rene L. Twedt, CRR, RMR, RDR
`Official Federal Court Reporter
`rene_twedt@mied.uscourts.gov
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43447 Filed 05/22/15 Page 3 of 220
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`TABLE OF CONTENTS
`
`Objections to Jury Verdict Form
`
`CLOSING ARGUMENTS
`Plaintiff's Closing Argument By Mr. Nimrod
`Defendant's Closing Argument By Mr. Rizzi
`Plaintiff's Rebuttal Argument by Mr. Nimrod
`Defendant's Rebuttal Argument by Mr. Rizzi
`
`FINAL JURY INSTRUCTIONS
`
`EXHIBITS RECEIVED:
`Plaintiff's Exhibit Number 428
`Defendant's Exhibit Numbers 137, 203 - 206
`Defendant's Exhibit Number 164
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`PAGE
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`PAGE
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43448 Filed 05/22/15 Page 4 of 220
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`Detroit, Michigan
`April 21, 2015
`8:09 a.m.
`
`*
`*
`*
`The United States District
`All rise.
`THE CLERK:
`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.
`You may be seated.
`Please put your appearance on the record.
`Matt
`MR. TRAUPMAN:
`Good morning, your Honor.
`Traupman from Quinn Emanuel.
`Mike Palizzi and Mike Simoni
`of Miller Canfield, as well as Everlight's corporate
`representative, Bernd Kammerer.
`THE COURT:
`Okay.
`MR. RIZZI:
`Good morning, your Honor.
`THE COURT:
`Good morning.
`MR. RIZZI:
`Steven Rizzi Foley & Lardner, on
`behalf of Nichia.
`With me is Ramy Hanna, Lisa Mankofsky,
`Ryan Schmid, Debra Lange, and our corporate representative,
`Dr. Dan Doxsee.
`I have gotten a
`All right.
`Okay.
`THE COURT:
`couple of memorandums from both sides and I have ultimately
`decided to go ahead and give the modified verdict form of
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43449 Filed 05/22/15 Page 5 of 220
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`Everlight.
`
`And I assume, have you all kind of worked out --
`I think, Mr. Rizzi, your memorandum said that there were
`inaccuracies in the verdict form with regard to the chart.
`you all talk about that or try to work that out?
`Because
`that's the only thing that I'm really going to change.
`MR. RIZZI:
`We did, your Honor, submit a revised
`
`Did
`
`chart --
`
`And your Honor --
`MR. TRAUPMAN:
`MR. RIZZI:
`-- submission.
`MR. TRAUPMAN:
`And your Honor, in the e-mail I
`sent to Ms. Dehn last evening about 10:00, I adopted
`Mr. Rizzi's chart which he represented was reviewed by his
`team, so the one that I sent at 10:00 is Nichia's chart, not
`ours, so I assume they have no dispute with that listing of
`products.
`
`Okay.
`THE COURT:
`Your Honor, a couple other questions
`MR. RIZZI:
`So with regard to the chart, we also clarified the
`on that.
`question for the jury.
`If you look at our proposed question
`four --
`
`THE COURT:
`
`Okay.
`
`Is that in Everlight's
`
`proposed --
`
`MR. RIZZI:
`THE COURT:
`
`No, your Honor.
`-- verdict form?
`
`Okay.
`
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43450 Filed 05/22/15 Page 6 of 220
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`And because Everlight acknowledged
`MR. RIZZI:
`that that chart was prepared based on Professor Schubert's
`analysis chart we simply indicated, to make it clear for the
`jury, that that is the origin of the chart in the verdict form
`so as to assist the jury in matching up what is in the verdict
`form to Professor Schubert's chart.
`We think that's necessary
`and appropriate.
`We also object to and deleted their reference to
`the fact that if a claim was found invalid the jury didn't need
`to fill out the boxes for that claim and we would -- you know,
`we maintain our objection to any instruction at the front of
`the form that Everlight proposes that the jury can simply stop
`if they find all the claims invalid.
`THE COURT:
`Okay.
`That only makes sense,
`
`Mr. Rizzi.
`
`Well, we submit authority to the
`MR. RIZZI:
`contrary, your Honor, that what we believe makes sense is that
`given that we have gone through trial, all the issues should be
`resolved so that we can appeal everything, you know, at once,
`and not have to retry.
`But that's an automatic resolution.
`THE COURT:
`If the claims are invalid and the patent is invalid, you
`have -- you can have no infringement.
`I don't understand your
`logic in that.
`I mean, just like we have separated invalidity
`and infringement from damages, it's -- it's a logical
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43451 Filed 05/22/15 Page 7 of 220
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`progression.
`
`So we do maintain our
`
`I don't -- I don't understand.
`MR. RIZZI:
`It's for appeal purposes, your Honor.
`I mean, this trial --
`Even an appellate court, they know the
`THE COURT:
`logic involved and I don't -- I'll overrule that, that matter.
`We will move on to the next one.
`MR. RIZZI:
`All right.
`objection to that one, your Honor.
`THE COURT:
`Okay.
`MR. RIZZI:
`And on the -- we do request our
`version of the language for the question that introduces the
`chart, as well.
`Okay.
`THE COURT:
`I don't think there should be any
`MR. RIZZI:
`reason not to adopt that.
`And also, the chart in our form includes three
`columns, two which identify the phosphor, if you look at our
`version.
`And the reason for that, your Honor, is the jury
`needs to understand whether the product is being infringed
`literally based on the YAG-based phosphors or under the
`doctrine of equivalence under a TAG-based phosphor, and these
`columns are simply part of the compilation that your Honor
`deemed was admissible into evidence.
`So we don't think that
`should be an issue, either.
`THE COURT:
`Could somebody close that back door,
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43452 Filed 05/22/15 Page 8 of 220
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`because I think jurors are still coming in and we don't want
`them coming this way.
`So we would ask that those columns
`MR. RIZZI:
`listing the phosphors would be included in the chart as they
`are in our version.
`Okay.
`THE COURT:
`And also, our question references
`MR. RIZZI:
`modules, because it's not just the individual products, but the
`modules incorporating individual LEDs that are infringed.
`So
`it's just a clarification of that issue, as well.
`MR. TRAUPMAN:
`Your Honor, would you like a
`
`response?
`
`If Mr. Rizzi is done.
`THE COURT:
`I'm sorry?
`MR. RIZZI:
`Are you done?
`THE COURT:
`The last point, your Honor, is we also
`MR. RIZZI:
`feel strongly that a general instruction is needed on the
`doctrine of equivalence.
`I gave that.
`THE COURT:
`In the verdict form.
`MR. RIZZI:
`Oh, in the verdict form.
`THE COURT:
`I'm sorry, in the verdict form, yes.
`MR. RIZZI:
`A question specific to the doctrine of equivalence that has to
`be decided separately by the jury from -- for appeal purposes
`there has to be clarity as to whether infringement was found
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43453 Filed 05/22/15 Page 9 of 220
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`literally and/or in the doctrine of equivalence.
`THE COURT:
`Okay.
`And I explained to the jury
`yesterday how infringement can be either literal or through the
`doctrine of equivalence and I'm not going to go back and
`explain everything in the verdict form that I explained in the
`instructions.
`You all can
`I think they can decide infringement.
`argue doctrine of equivalence.
`And I think they understand
`that.
`And listening to my instructions yesterday, and they'll
`have a copy of this when they are deliberating, will explain
`infringement -- not infringement, but invalidity enough.
`So I'm not going to break out the verdict form
`with all these different things that you're requesting,
`I'm
`including the YAG and the GAG and the different phosphors.
`not going to do that.
`The verdict form is already complicated
`enough and I'm not going to make any further breakouts in the
`verdict form.
`So that's my decision.
`MR. RIZZI:
`One last question.
`THE COURT:
`Okay.
`MR. RIZZI:
`We did include in our version the
`questions on the priority date and we don't see any reason that
`that should not be part of the verdict form.
`That's our
`proposed question one under the invalidity claims against
`Nichia asking the jury to fill in the priority date that
`applies for each of the claims.
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43454 Filed 05/22/15 Page 10 of 220
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`Do you have a comment about that?
`THE COURT:
`MR. TRAUPMAN:
`Sure.
`I mean, that's really
`completely wrapped up in the question on anticipation, your
`Honor.
`If the jury finds anticipation they necessarily found
`that -- your Honor has instructed already that the priority
`date must be the July '96 date, rather than the July '97 or the
`March '97 date.
`That's inherent in the anticipation charge.
`Again, there is no reason to break this out the
`way Mr. Rizzi proposes.
`The verdict on anticipation covers
`the -- necessarily covers the priority date issue.
`THE COURT:
`Okay.
`And I agree with you and I'm
`not going to add that question.
`MR. RIZZI:
`And I assume your Honor is not
`accepting our proposed questions on invalidity, either, based
`on the specific combinations?
`THE COURT:
`You mean anticipation and inability
`and all those different --
`MR. RIZZI:
`The different combinations of
`
`references.
`
`either.
`
`your Honor.
`
`THE COURT:
`
`Okay.
`
`No, I'm not going to do that,
`
`MR. RIZZI:
`
`Okay.
`
`So we just note our objection,
`
`And we're on the record here.
`Okay.
`THE COURT:
`I have got my visitor again, Rene, from Judge Lawson's
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`courtroom.
`
`And so to be clear, so you have
`MR. TRAUPMAN:
`overruled all of Mr. Rizzi's objections?
`THE COURT:
`Yes, I have.
`MR. TRAUPMAN:
`Okay.
`THE COURT:
`So are we ready to do the arguments,
`
`then?
`
`We will be, as soon as Mr. Nimrod
`
`MR. TRAUPMAN:
`comes in the room.
`What I'm going to do, we're going
`THE COURT:
`to -- I'm not going to start the arguments until 8:30, so we
`will take a ten-minute break.
`MS. MANKOFSKY:
`Your Honor, I'm sorry, we have a
`few loose ends about exhibits.
`Can we put that on the record?
`THE COURT:
`Okay.
`Have you all talked about it?
`MS. MANKOFSKY:
`I believe there are four points,
`two of which I understand you don't contest.
`MR. TRAUPMAN:
`I don't know what your points are,
`
`so.
`
`Why don't you give me a chance to
`
`MS. MANKOFSKY:
`say what they are.
`So the body of the transcripts indicate that we
`have moved certain exhibits into evidence, but there is an
`early portion of the transcript, I guess right following the
`cover page where exhibits are listed, and there was a
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43456 Filed 05/22/15 Page 12 of 220
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`discrepancy that some exhibits weren't listed at that early
`point in the transcript, but they are in the body.
`So it's our understanding from the body of the
`transcript, and we understand Everlight does not contest this,
`that the following five exhibits were received into evidence.
`They are D137 --
`Don't, don't say them very
`Okay.
`THE COURT:
`fast, because I want to write it down.
`MS. MANKOFSKY:
`D137, D203, D204, D205, and D206.
`They are all priority applications.
`It's also the case that
`we corrected on the transcript an inaccurate reference to P438
`and it was corrected to P428.
`Again, that's in the body of
`the transcript, but wasn't reflected at the early part of the
`transcript right after the cover page.
`And I understand that
`Everlight doesn't contest that.
`There are two other issues that we want to raise.
`One is, you may recall yesterday we objected to Everlight
`having admitted into evidence their demonstratives, and in
`particular their demonstratives, PDX 1001 through 1006 and PDX
`1009, and yesterday you indicated, because they had already
`been received in evidence, that objection would not be
`sustained.
`
`We ask that one of our demonstratives similarly
`be put into evidence out of fairness and that is D372.
`And the last issue is, apparently Professor
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43457 Filed 05/22/15 Page 13 of 220
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`Schubert's CV was not moved into evidence, that's D164, and we
`would ask to move into evidence D164.
`THE COURT:
`Okay.
`MR. TRAUPMAN:
`So if I accept Ms. Mankofsky's
`representation that the five exhibits are the five Japanese
`priority applications, assuming that's correct, we don't have a
`problem with that.
`Okay.
`THE COURT:
`MR. TRAUPMAN:
`We also don't have --
`THE COURT:
`So let me just say I'll receive 137,
`203, 204, '5 and '6.
`Those are the five -- you are
`MR. TRAUPMAN:
`representing those are the five Japanese priority applications?
`MS. MANKOFSKY:
`Yes.
`MR. TRAUPMAN:
`So that's fine.
`objection to that, your Honor.
`THE COURT:
`Okay.
`MR. TRAUPMAN:
`The second point was the correction
`from the '38 to '28, that's already been corrected on the
`transcript, so again, we have no issue with that.
`THE COURT:
`Okay.
`MR. TRAUPMAN:
`The third point was the
`demonstrative.
`We have repeatedly limited our agreement to the
`admissibility of 372 as a demonstrative, so we don't agree to
`that.
`
`We have no
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43458 Filed 05/22/15 Page 14 of 220
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`What is 372?
`THE COURT:
`MR. TRAUPMAN:
`372 is the comparison between the
`Bando reference and Nakamura reference where they have
`excerpted out the two portions of the two articles and put them
`side by side.
`It was used with several different witnesses
`throughout the trial and it's repeatedly been admitted as a
`demonstrative, so I don't think it's appropriate to move that
`in as substantive evidence.
`THE COURT:
`What's D164?
`MS. MANKOFSKY:
`Professor Schubert's CV.
`And on the Bando reference --
`THE COURT:
`Okay.
`Hold on just a second about the
`
`reference.
`
`You don't have a problem with the CV?
`MR. TRAUPMAN:
`No, your Honor, that's --
`THE COURT:
`Okay.
`164 will be received.
`MS. MANKOFSKY:
`That's exactly right, it's a
`comparison of two references that the underlying documents
`are in evidence.
`Did I receive 372?
`Okay.
`THE COURT:
`receive it into evidence already?
`That's why we're raising it
`MS. MANKOFSKY:
`No.
`It seemed to us out of fairness --
`THE COURT:
`Well, that's not out of fairness.
`That's not out of fairness, because I already received their
`
`Did I
`
`now.
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43459 Filed 05/22/15 Page 15 of 220
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`So that is not a fairness
`exhibits and I didn't receive yours.
`issue.
`So I'm not going to receive D372.
`All right.
`Anything else before we argue?
`Okay.
`We will take -- we will take about seven
`minutes and we will continue at 8:30.
`All right.
`We will be in recess.
`(At 8:22 a.m. to 8:32 a.m. recess taken)
`THE CLERK:
`Please remain seated.
`This court is
`back in session.
`Let's bring the jury in.
`All right.
`THE COURT:
`One moment, your Honor.
`Mr. Rizzi
`MR. HANNA:
`just stepped to the restroom.
`I apologize.
`THE COURT:
`Oh, okay.
`By the way, did my law clerk tell you all that
`some parties want to intervene in this case?
`MS. MANKOFSKY:
`We saw that yesterday.
`THE COURT:
`I'm denying their request to
`intervene, because it's untimely.
`So there was about eight
`people.
`About eight people, so.
`All right.
`Let's bring the jury in.
`THE CLERK:
`All rise for the jury.
`(At 8:33 a.m. jury present)
`THE COURT:
`All right.
`You can be seated.
`All right.
`Ladies and gentlemen, I think you can
`probably guess what the first words out of my mouth will be,
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43460 Filed 05/22/15 Page 16 of 220
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`and it is that the Tigers won last night.
`Let me say good morning to you, too.
`And I also want to commend you all again, because
`we have had a two-week trial here and there hasn't been one day
`when somebody has been late, and that's extraordinary.
`That's
`actually very extraordinary, so I want to commend you on that.
`And I have our visitor here today, Rene Twedt, and
`we're ready to start the arguments.
`Let me just make a couple of comments about the
`There may be points in time when there are
`arguments.
`objections and sometimes the lawyers say they object, saying
`that that's not an accurate statement of the law.
`And I have
`already given it to you, so I want you to remember what I tell
`you or what I told you yesterday is the law of the case
`irrespective of what they say or do about it.
`And they can
`comment on the law.
`And sometimes also the lawyers make objections
`saying that, well, that's not an accurate representation of the
`facts.
`And again, I think both sides will do their best to
`accurately represent the facts as they recall them to be, but
`your recollection of the facts is what controls.
`So just keep
`those two things in mind.
`And with that, Mr. Nimrod, are you ready to give
`your argument?
`MR. NIMROD:
`
`I am, your Honor.
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43461 Filed 05/22/15 Page 17 of 220
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`You may.
`All right.
`THE COURT:
`Thank you, your Honor.
`Thank you.
`MR. NIMROD:
`Thank you.
`All right.
`THE COURT:
`Good morning, ladies and gentlemen.
`MR. NIMROD:
`JURORS:
`Good morning.
`MR. NIMROD:
`Everlight wants to thank you for
`spending the last two weeks with us and for your attentiveness
`in considering the invalidity issues that we have presented
`to you.
`This is a very, very important case to Everlight's
`business and we thank you for taking the time to consider all
`of the issues here.
`And I'm going to discuss now the validity
`issues first, since that was our burden of proof.
`And I think
`after you hear this, and you have heard the evidence, that you
`will conclude that all of the asserted claims of Nichia's
`patents are invalid for various reasons.
`As I told you two weeks ago in the opening, Nichia
`did not follow the patent validity rules by getting these
`patents and by asserting them against Everlight and they are
`not playing by the rules.
`Judge Drain told you in his preliminary
`instructions when the trial began that Nichia was asserting
`21 claims against Everlight.
`He said, in the portion on contentiousness, Nichia
`contends that Everlight makes, uses or sells white LEDs that
`infringe Claims 2, 3, 5, 6, and 8 of the '925 patent, and
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43462 Filed 05/22/15 Page 18 of 220
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`Claims 1, 2, 4, 8, 9, 10, 11, 12, 13, and 14, and 16, 17, 18,
`19, 21 -- and 20 and 21 of the '960.
`And Everlight asserted
`those claims were invalid on various grounds.
`And, in fact, we spent two years litigating over
`these claims, these 21 claims, but now we're at the end of the
`case, and you may have noticed during the instructions that you
`were given yesterday that the Court instructed you that there
`were just six claims at issue, three from the '925 patent and
`three from the '960 patent.
`Well,
`So you might ask yourself, what happened?
`Everlight put on its invalidity case on all 21 of those claims
`and described to you the various reasons why every one of the
`claims Nichia had asserted was invalid.
`The very next day after we finished our validity
`case, after Nichia saw our invalidity case, it withdrew
`15 claims.
`
`Originally they
`So let's go to the next slide.
`asserted Claims 2, 3, 5, 6, and 8, but then they withdrew
`Claims 6 and 8 from the case.
`For the '960 patent, it was all these claims.
`After seeing our validity case, they withdrew every one of
`those claims against Everlight.
`Now, they might say that the reason they did this
`was for convenience, to save time for you, the jury.
`Well, you
`can dismiss that reason.
`If they wanted to do that, they would
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43463 Filed 05/22/15 Page 19 of 220
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`They didn't
`have dropped the claims before the trial began.
`drop the claims until they heard our invalidity case.
`And they might also say that they dropped what
`they thought were the weaker claims and left the ones that were
`stronger in some way.
`But the claims that they dropped and
`kept aren't very different at all.
`For example, we see here Claim 1, which was
`dropped, has a limitation where, at the end it talks about the
`concentration increasing up and concentration going down,
`that's that snow globe, where the patent, you know, went up and
`went down.
`We showed you that was invalid and they dropped
`that now.
`
`And what Claim 2 does, it just picks one of the
`It says where it increases from the surface down to the
`two.
`That doesn't make that one valid over the other one.
`LED.
`It's no -- it's just as invalid as the ones they have dropped.
`Here's another example.
`Claim 10 has been
`And it adds a limitation to this rare earth metal
`dropped.
`being cerium for a garnet phosphor.
`Claim 19 is being asserted
`still; it has the exact same limitation.
`The remaining claims that you have to consider
`during your deliberations, the six of them, are all invalid,
`just like the ones they dropped.
`And let's talk about why.
`Now, Dr. Bretschneider, our expert, walked you
`through 21 claims -- that we're not going to talk about
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43464 Filed 05/22/15 Page 20 of 220
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`today -- claim by claim, element by element, and explained
`why these claims were invalid for obviousness and anticipation
`and he also talked about enablement.
`And he talked to you about, for example, the
`Baretz patent.
`That's the patent that everyone agrees is prior
`art.
`You can just forget about the priority applications, it's
`three months prior, March of 1996, three months prior to the
`earliest date that Nichia alleges for its Japanese application.
`So this is indisputable prior art.
`And I'm going to talk to you about Claim 14 first.
`And you might say, well, why are you starting with Claim 14 of
`the '960 patent?
`Because that is, in fact, the most important
`claim to Nichia.
`It is extremely broad.
`Nichia covers -- alleges for this claim, it
`alleges that every phosphor powder, yellow phosphor powder
`that's used by people with blue chips to make white light
`infringes this claim.
`You'll note here, you don't see any words to YAG
`or YAG-based or gadolinium, it just says a phosphor.
`They are
`asserting this claim against any kind of inorganic phosphors,
`not just YAG-based.
`You remember that, this is a slide from
`Dr. Schubert, and he said, oh, how it was, you know, amazing to
`come up with YAG when there is all these different kinds of
`inorganic phosphors.
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43465 Filed 05/22/15 Page 21 of 220
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`Well, they say Claim 14 covers these kinds of
`inorganic phosphors.
`They didn't say much about that during
`the trial.
`Claim 14 is not to YAG, it covers sulfides and
`nitrides, and we make products like that, and they accuse those
`of infringing Claim 14.
`It's a very, very broad claim, and
`it's very valuable to Nichia to assert against people like
`Everlight to stop them from developing any kind of white light
`using yellow powders.
`The
`Now, what's our starting point for this?
`Baretz patent I talked about.
`There is no dispute that if you,
`the jury, find when you're deliberating that controlling
`particle size by sieving, and that's just taking those screens
`and you crush up the powder, you make the phosphors, and they
`come out and you crush them and you put them through screens so
`the big chunks come out, that's called sieving, screening, and
`you ball mill it, et cetera.
`He admitted
`This is Dr. Schubert's testimony.
`that if the jury finds it was obvious to take Baretz, which
`everybody agrees is prior art, and have controlled particle
`size, this is key, by the sieving, they think that's obvious,
`and you being the day [sic], then patent Claim 14 is invalid
`for obviousness, right, if that's their conclusion, what is his
`answer?
`Yes.
`So when you're deliberating, if you agree that
`sieving phosphors was obvious, then Claim 14 is invalid by
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43466 Filed 05/22/15 Page 22 of 220
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`their own expert's admission.
`Now, there is no question that it was obvious and
`well known to sieve in the prior art, sieving phosphors.
`Dr. Bretschneider talked to you about this and I think you saw
`the slide several times as we were marching through the claims.
`He gave examples of five prior art patents and there are many,
`many more where people did the very things that Dr. Schubert's
`talking about, mesh screening, wet screening, ball milling,
`et cetera, it was obvious.
`It's what you do when you make
`phosphors.
`It's that you take them, you wash them, mill them
`and screen them and take out big chunks.
`Five prior art references, none of these
`You
`references, by the way, were before the patent examiner.
`remember that video in the beginning of the case, and the video
`said sometimes the Patent Office doesn't have all the facts,
`and that's why you the jury are called to help out?
`And what
`you need to do is, one thing to consider is, did the patent
`examiner have all the information you had?
`Well, the patent examiner did not have Baretz and
`he did not have the five sieving references.
`He didn't have
`the admission from their expert, which you also get, that if
`you find that sieving is obvious, then it's invalid over
`Baretz.
`
`Now, Dr. Bretschneider said that sieving was
`obvious, but he is not the only one.
`Dr. Schubert was asked on
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43467 Filed 05/22/15 Page 23 of 220
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`redirect examination, was the only way known at the time of the
`invention, July 1996, to achieve a controlled particle size,
`referring to sieving?
`There were
`He says, no, not the only way.
`multiple ways to control particle size distribution.
`So this
`is July 1996.
`We're talking about the prior art.
`And he goes on, but there are modifications and
`other processes that allow one to control the particle size of
`the phosphor.
`And then the question, the key follow-up question
`
`was:
`
`That were known to those working in the
`Question:
`field at the time of the invention?
`Yes.
`So he even admitted on his own testimony during
`redirect examination when Nichia's counsel was talking to them,
`but yes, people knew how to control particle size.
`Those were
`known in the art.
`So Dr. Bretschneider said sieving was known
`in the art.
`He showed you five patents on it.
`Dr. Schubert
`said it was known in the art.
`And in the jury instructions that Judge Drain read
`to you he said one of the factors you're going to consider, you
`should consider, is whether the claimed invention was merely a
`predictable result using the prior art elements according to
`their known functions.
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43468 Filed 05/22/15 Page 24 of 220
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`Baretz is teaching white
`So you have got Baretz.
`light, remember?
`He taught blue plus yellow gets you white;
`that is Claim 14 up to the sieving.
`And Dr. Schubert agrees
`with that.
`
`And all that is being done with that last
`limitation is to control the particle size, for example, by
`sieving, which was known in the art and is just doing its
`well-known function, which is to take out the big chunks.
`That's just common sense.
`It's what you do with the phosphors.
`There is nothing inventive about saying, I'm going to take the
`Baretz phosphors and sieve them.
`You don't get a patent for
`that.
`
`Now, what was Nichia's answer to during the trial?
`Well, they put up the prior art that Dr. Bretschneider talked
`about.
`These are the same five references that
`Dr. Bretschneider showed you and they put them on their own
`chart.
`
`And on direct
`You recall the first one is P26.
`examination with Dr. Schubert they said, starting with P26,
`what's the first one?
`He says, well, I'm sure we have a fluorescent tube
`
`reference.
`
`Remember, Nichia has been trying to argue, well,
`fluorescent tubes, that's very different than LEDs.
`So they
`want to dismiss all of this.
`So you say, well, sieving might
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43469 Filed 05/22/15 Page 25 of 220
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`He says, I believe all of
`
`not be known for LEDs, for phosphor.
`them are fluorescent tube references.
`And then the question:
`So to understand, your
`understanding is, none of these relate to LED technology,
`correct?
`
`Correct.
`That's his answer:
`And therefore, that's the conclusion he draws.
`You don't believe it would have been -- Claim 14
`would have been obvious in view of any combination including
`any of these references?
`So what he told you was that these references did
`not relate to LED phosphors.
`That's what he told you.
`But
`then on cross examination he admitted that that, in fact, was
`wrong.
`He was misinforming you.
`Same slide again on direct -- excuse me -- one
`
`more.
`
`On cross examination, when I got a chance to talk
`to him about it, we went to P158, that's the fourth one on the
`list right there, the Johnson article.
`And I said:
`This is LED technology, isn't it,
`
`sir?
`
`Infrared LED technology.
`Answer:
`So he misinformed you when he said those were just
`relating to cathode ray tubes, fluorescent tubes.
`It's LED
`technology.
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`Case 4:12-cv-11758-GAD-MKM ECF No. 529, PageID.43470 Filed 05/22/15 Page 26 of 220
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`And I showed him the Johnson reference, there is
`no doubt about, it talks about crushing the granules, milling
`and screening according to particle size, and it shows the LED
`right in the picture there.
`Now, this is not the only time, I submit to you,
`that Dr. Schubert was not being forthright with you.
`We had
`that discussion, as you may recall, about partial conversion.
`Dr. Schubert and I had that discussion.
`And I showed, in this
`case, Dr. Bretschneider -- who I submit to you was very
`forthright, and you remember him on cross examination, he
`answered all the questions.
`He didn't refuse to admit any
`kind of mistakes or anything.
`Every question asked of him, he
`answered them honestly, with a full answer.
`I showed Dr. Schubert this part of his expert
`report he submitted in this case and he said the Bretschneider
`report talks about Baretz and about the teachings about the
`partial conversion.
`And what does he say in this case?
`I disagree.
`The teachings of Baretz and
`Tischler -- that's the other inventor on that -- relate to
`full conversion of the light emitted by the light source, not
`partial conversion.
`So he said
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