Case 1:15-cv-10240-LTS Document 66 Filed 03/17/15 Page 1 of 7
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`ENERGETIQ TECHNOLOGY, INC.,
`
`Plaintiff,
`
`v.
`
`ASML NETHERLANDS B.V.,
`EXCELITAS TECHNOLOGIES CORP., and
`QIOPTIQ PHOTONICS GMBH & CO. KG,
`
`Defendants.
`
`Civil Action No. 1:15-cv-10240-LTS
`PUBLIC VERSION
`
`ENERGETIQ’S REPLY BRIEF IN
`SUPPORT OF ITS MOTION FOR PRELIMINARY INJUNCTION
`
`ASML 1114
`
`

`
`Case 1:15-cv-10240-LTS Document 66 Filed 03/17/15 Page 2 of 7
`Case 1:15—cv—10240—LTS Document 66 Filed 03/17/15 Page 2 of 7
`
`A preliminary injunction is intended to maintain the statusq1
`
`‘ With respect to Excelitas’ allegations that an injunction will l1a1m it: “‘[o]ne who elects
`
`to build a business on a product found to infringe cannot be heard to complain if an inj1u1ctio11
`
`against continuing infringement destroys the business so elected. 1l[(?I'i(I] Ltd. v. Cipla Ltd. 681
`
`F.3d 1283. 1306 (Fed. Cir. 2012) (citations omitted).
`
`As to Excelitas. this issue is iipe for a preliminary injunction. Based on the little Excelitas
`
`says hi its opposition to Energetiq’s motion. a preliminary injunction clearly is appropriate here.
`
`on we ukeuhood T
`
`Regarding the timing, Excelitas takes no issue that Energetiq first learned about this infringing
`
`Preduet development in late 2014-
`
`-.1 Nor does Excelitas, a Massachusetts-based company, challenge this court’s
`
`jurisdiction or seivice of process. 2
`
`I.
`
`LIKELII-IOOD OF SUCCESS
`
`Infringement. While Defendants arguet
`
`The referenced declarations are on file with the court as follows: Smith I (Doc. No. 14),
`1
`Smith H (filed herewith), Lorenz I (Doc. No. 24). Lorenz II (Doc. No. 49), Ross (Doc. No. 50),
`Ersoni H Doc. No. 51 Letz II Doc. No. 54 .
`
`
`
`

`
`Case 1:15-cv-10240-LTS Document 66 Filed 03/17/15 Page 3 of 7
`Case 1:15—cv—10240—LTS Document 66 Filed 03/17/15 Page 3 of 7
`
`

`
`Case 1:15-cv-10240-LTS Document 66 Filed 03/17/15 Page 4 of 7
`Case 1:15—cv—10240—LTS Document 66 Filed 03/17/15 Page 4 of 7
`
`Patent Validity. Energetiq can now say with certainty, having now seen Defendants’ best
`
`case on Validity, that it is likely to prevail on Defendants’ invalidity assertions. For instance, with
`
`respect to the ‘455 patent, claim 41 , Dr. Ross identifies only one prior art reference (Gartner) that
`
`she says shows every limitation of the claim. But, Dr. Ross made a fatal factual mistake (perhaps
`
`underlining a lack of expertise in the area of the patents) by saying that Géirtner has a “cluved
`
`reflective surface” that meets two requirements of claim 41: (1) “receive and reflect .
`
`.
`
`. the
`
`electromagnetic energy [laser light] toward the ionized gas .
`
`. .;” and (2) “reflects the high
`
`brightness light [generated by the plasma] toward an output of the light source.” In fact, the
`
`“concave mirror 39” m Gartner that she points to does not perform the second of these two
`
`requirements. And, Gartner does not disclose a “high brightness light,” as the claim requires.
`
`Gartner therefore caimot invalidate claim 41 under 35 U.S.C. § 102. (Smith II 1m 44, 45-54; Ex. 1.)
`
`Dr. Ross also opines that Gartner, in combination with other prior art, renders claim 41
`
`obvious Imder 35 U.S.C . § 103. But her obviousness analysis is too conclusory to cany any
`
`weight, and indeed, fails to meet the minimum legal requirements for arguing obviousness:
`
`0 Dr. Ross failed completely to address the objective evidence of non-obviousness that
`Energetiq p11t forward, including long—felt need for the invention, unexpectedly good
`results from the invention, and oveiwhehning industry praise of the invention (Smith I 111]
`7-11). See Transocean Oflshore Deepwater Drilling, Inc. v. Maersk Contractors USA,
`Inc., 617 F.3d. 1296, 1305 (Fed. Cir. 2010) (reversing distlict court obviousness finding
`because of “failure to consider the objective evidence of nonobviousness .
`. .”); Procter &
`
`
`
`

`
`Case 1:15-cv-10240-LTS Document 66 Filed 03/17/15 Page 5 of 7
`
`Gamble v. Teva Pharm. USA, Inc., 566 F.3d 989, 998 (Fed. Cir. 2009) (objective evidence
`of non-obviousness such as long-felt need often is “the most cogent evidence [of non-
`obviousness] in the record”).
`
`(cid:120) Dr. Ross provided no reason why a person of ordinary skill in the art at the time of the
`invention would have made the combinations that allegedly render the invention obvious
`(Ross ¶¶ 24, 31, 39, 49-56). See In Touch Tech. v. VGO Communications, Inc., 751 F.3d
`1327, 1348 (Fed. Cir. 2014) (“Dr. Yanco’s testimony was nothing more than impermissible
`hindsight; she opined that all of the elements of the claims disparately existed in the prior
`art, but failed to provide the glue to combine these references.”); See also Kinetic Concepts,
`Inc. v. Smith & Nephew, Inc., 688 F.3d. 1342, 1366 (Fed. Cir. 2012) (obviousness
`argument fails as defendant did not show reason why person skilled in the art would
`combine references).
`
`(cid:120) Dr. Ross’ obviousness analysis consists of nothing more than boilerplate conclusory
`statements, (e.g. Ross ¶¶ 24, 31, 39, 49-56), and this is not enough. KSR Int’l Co. v.
`Teleflex Inc., 550 U.S. 398, 341 (2007) (obviousness analysis must be made explicit and
`conclusory statements do not suffice); See In Touch Tech., at 1352 (Fed. Cir. 2014) (“Dr.
`Yanco’s testimony primarily consisted of conclusory references to her belief that one of
`ordinary skill in the art could combine these references, not that they would have been
`motivated to do so”).
`
`For these reasons alone, the court can find that Defendants failed to raise a substantial question of
`
`patent validity. In addition, Defendants’ validity analysis also fails on the technical merits, as
`
`shown in Dr. Smith’s second declaration, attached hereto. (Smith II ¶¶ 8-79.) 5
`
`II.
`
`OTHER FACTORS
`
`Irreparable Harm. Defendants’ opposition also underscores the irreparable harm here,
`
`absent an injunction.
`
`5
`And while Energetiq need only show likelihood of success on one patent claim,
`Defendants invalidity case for claim 10 of the ‘942 patent fails for similar reasons. (Smith II ¶¶
`13-40.) With respect to claim 10, Defendants also raise an argument that the claim 10 term
`“high brightness light” is indefinite. (Opp. 13 n. 7.) This argument is without merit, as the ‘982
`patent specification at col. 1, ll. 9-40, provides an express and certain definition of “high
`brightness light.” (Smith II, ¶¶ 17-22.)
`See Celsis in Vitro, Inc. v. CellzDirect, Inc., 664 F.3d 922, 930 (Fed. Cir. 2012) (“Price
`6
`erosion, loss of goodwill, damage to reputation, and loss of business opportunities are all valid
`grounds for finding irreparable harm.”)
`
`4
`
`

`
`Case 1:15-cv-10240-LTS Document 66 Filed 03/17/15 Page 6 of 7
`Case 1:15—cv—10240—LTS Document 66 Filed 03/17/15 Page 6 of 7
`
`Balance of Eguities and Public Interest.
`
`Justice is 11ot done when a small technology
`
`company patents a groundbreakiiig new technology. but loses tl1e custoiner and its exclusivity right
`
`because someone decides that it will be cheaper to make the product itself. This kind of behavior
`
`.
`.
`.
`.
`kills A111e1‘1ca11 innovation.
`
`3
`
`
`
`

`
`Case 1:15-cv-10240-LTS Document 66 Filed 03/17/15 Page 7 of 7
`
`Dated: March 17, 2015
`
`Respectfully submitted,
`
`/s/ Steven M. Bauer
`Steven M. Bauer (BBO #542531)
`Safraz W. Ishmael (BBO #657881)
`S. James Boumil III (BBO #684361)
`PROSKAUER ROSE LLP
`One International Place
`Boston, MA 02110-2600
`Telephone: (617) 526-9600
`Facsimile: (617) 526-9899
`sbauer@proskauer.com
`sishmael@proskauer.com
`jboumil@proskauer.com
`
`ATTORNEYS FOR
`ENERGETIQ TECHNOLOGY, INC.
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that, on March 17, 2015, I electronically filed the foregoing with the
`
`Clerk of the Court by using the CM/ECF system. A copy of the document will be served upon
`
`Defendants’ counsel electronically via the CM/ECF system.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Steven M. Bauer
`Steven M. Bauer
`
`6