IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`S. Edward Neister
`In re Patent of:
`8,975,605
`U.S. Patent No.:
`March 10, 2015
`Issue Date:
`Appl. Serial No.: 13/936,306
`Filing Date:
`July 8, 2013
`Title:
`METHOD AND APPARATUS FOR PRODUCING A HIGH
`LEVEL OF DISINFECTION IN AIR AND SURFACES
`
` Attorney Docket No.: 00012-0177IP1
`
`DECLARATION OF OLIVER R. LAWAL
`
`EXHIBIT 1003
`
`1
`
`
`
`S. Edward Neister
`In re Patent of:
`8,975,605
`U.S. Patent No.:
`March 10, 2015
`Issue Date:
`Appl. Serial No.: 13/936,306
`Filing Date:
`July 8, 2013
`Title:
`METHOD AND APPARATUS FOR PRODUCING A HIGH
`LEVEL OF DISINFECTION IN AIR AND SURFACES
`
` Attorney Docket No.: 00012-0177IP1
`
`DECLARATION OF OLIVER R. LAWAL
`
`EXHIBIT 1003
`
`1
`
`
`
`TABLE OF CONTENTS
`
`
`I.
`
`INTRODUCTION AND SCOPE OF WORK ................................................ 3
`
`II. QUALIFICATIONS AND BACKGROUND INFORMATION .................... 4
`
`III. BASIS FOR OPINIONS ................................................................................. 7
`
`IV. LEGAL PRINCIPLES ..................................................................................... 9
`
`V.
`
`PERSON OF ORDINARY SKILL IN THE ART ........................................12
`
`VI. CLAIM CONSTRUCTION ..........................................................................14
`
`VII. SUMMARY OF OPINIONS .........................................................................14
`
`VIII. BACKGROUND OF THE TECHNOLOGY ................................................14
`
`A.
`
`Fundamentals of UV Light ..................................................................15
`
`B. Discovery of the Germicidal Properties of UV Light .........................16
`
`C. A Brief History of UVGI ....................................................................18
`
`D. Artificial UV Light Sources: Gas-Discharge Lamps ..........................18
`
`E. Mercury Vapor Discharge Lamps and KrCl Excimer Lamps.............20
`
`F.
`
`The Photobiological Effects of UV Light ...........................................22
`
`IX. U.S. PATENT NO. 8,975,605 .......................................................................25
`
`A.
`
`B.
`
`The ’605 Patent ...................................................................................25
`
`’605 Patent Prosecution History ..........................................................28
`
`X. OVERVIEW OF THE PRIOR ART .............................................................29
`
`Brown-Skrobot ....................................................................................29
`
`Clauss ..................................................................................................30
`
`Reasons a POSITA would Combine Brown-Skrobot and Clauss ......31
`
`
`
`A.
`
`B.
`
`C.
`
`
`
`2
`
`
`
`D.
`
`E.
`
`Liang ....................................................................................................35
`
`Reasons a POSITA would Combine Brown-Skrobot and Clauss with
`Liang ....................................................................................................38
`
`XI. ANALYSIS OF THE CLAIMS OF THE ’605 PATENT IN LIGHT OF
`THE PRIOR ART ..........................................................................................41
`
`A. Ground 1: Claims 1-2 are obvious in light of Brown-Skrobot in view
`of Clauss ..............................................................................................41
`
`B. Ground 2: Claims 5-6 are obvious over Brown-Skrobot and Clauss in
`view of Liang .......................................................................................53
`
`XII. CONCLUSION ..............................................................................................58
`
`
`
`
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`
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`
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`
`
`3
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`
`
`I, Oliver R. Lawal, of Walton, Kentucky, declare that:
`
`I.
`
`INTRODUCTION AND SCOPE OF WORK
`
`1. My name is Oliver R. Lawal. I have been retained as an expert witness
`
`on behalf of petitioners Eden Park Illumination, Inc.; Larson Electronics LLC; and
`
`Far UV Technologies (“Petitioners”) for the above-referenced inter partes review
`
`(“IPR”) proceeding regarding U.S. Patent No. 8,975,605 (the “’605 Patent”). In
`
`particular, I have been asked to provide a declaration regarding the unpatentability
`
`grounds set forth in the Petition for this proceeding.
`
`2.
`
`I am not now, nor have I ever been, an employee of Petitioners in this
`
`proceeding or any subsidiary of Petitioners. I have been engaged in the present
`
`matter to provide my independent analysis of the unpatentability grounds raised in
`
`the Petition for IPR of the ’605 Patent. I have not received nor will I receive any
`
`compensation for this Declaration beyond my normal hourly compensation based on
`
`my time actually spent studying this matter and preparing this Declaration, and I will
`
`not receive any added compensation based on the outcome of the Petition of the ’605
`
`Patent.
`
`3.
`
`I note that my business, AquiSense Technologies, Inc., purchased
`
`products from Eden Park Illumination, Inc. in 2015. My company made these
`
`purchases in the ordinary course of business to provide my clients with UV
`
`
`
`
`
`4
`
`
`
`disinfection solutions, and neither my company nor I have any financial interest in
`
`Eden Park, nor in this IPR generally.
`
`II. QUALIFICATIONS AND BACKGROUND INFORMATION
`
`4. My qualifications for forming the opinions given in this Declaration are
`
`summarized here and are addressed further in my resume, which is attached as
`
`Appendix A to this Declaration.
`
`5.
`
`I have experience in the commercial and technical evaluation of
`
`excimer lamps for use in ultraviolet (“UV”) disinfection systems for air, surface, and
`
`water treatment. My evaluation of excimer lamps has been supported by various
`
`excimer lamp manufacturers, attendance at technical conferences, practical
`
`experimentation by work colleagues, and my own personal study. I have also
`
`provided independent consulting services to companies on the use of UV lamps,
`
`including excimer lamps, for UV system design.
`
`6.
`
`I received a Bachelor of Engineering degree in Integrated Engineering
`
`Systems from Manchester Metropolitan University in the United Kingdom. I am also
`
`registered as a Chartered Engineer with the United Kingdom Engineering Council
`
`and a Member of the Institution of Mechanical Engineers.
`
`7.
`
`I have over 20 years of professional experience in systems engineering
`
`using UV technology, particularly applications of UV technology to disinfect
`
`substances and surfaces such as water and air.
`
`
`
`
`
`5
`
`
`
`8.
`
`I am currently the President and CEO of AquiSense Technologies, Inc.,
`
`a company I founded in April 2015. My company focuses on the commercialization
`
`of UV light-emitting diodes (“LEDs”) for disinfection across a diverse range of
`
`industries,
`
`including aerospace,
`
`life science, commercial, and residential
`
`applications.
`
`9.
`
`From 2010 to 2015, I was President of Aquionics Inc., a leading
`
`manufacturer of UV disinfection water and wastewater treatment systems. Prior to
`
`that, from 2009 to 2010, I was Aquionics’s Vice President of Technology, where my
`
`responsibilities included managing the UV group. During my time at Aquionics, I
`
`developed, analyzed, and designed UV disinfection products and solutions for my
`
`customers and led an experienced executive team on global commercialization of
`
`UV LED technology. Prior to that, from 1998 to 2008, I held various engineering
`
`and leadership roles at WEDECO, where I eventually became the Director of
`
`Engineering in 2005. During my time at WEDECO, I led activities related to UV
`
`product and applications development, provided engineering sales support, and
`
`helped develop engineering standards. I have analyzed, designed, developed, sold,
`
`and supported UV disinfection products and systems for projects in the United
`
`States, Europe, and New Zealand.
`
`10.
`
`I have authored over 50 technical papers primarily focused on UV
`
`applications for water, wastewater, and measurement. During my time at WEDECO
`
`
`
`
`
`6
`
`
`
`and commencing in 2002, I served as a contributor to the U.S. Environmental
`
`Protection Agency’s (“EPA’s”) Ultraviolet Disinfection Guidance Manual, which
`
`provides technical information on the application of UV light for the disinfection of
`
`drinking water by public water systems. This manual was published for public
`
`comment in June 2003 and is considered an industry standard on the application of
`
`ultraviolet light for the disinfection of drinking water by public water systems. My
`
`specific contributions were related to the description of UV equipment hardware:
`
`UV lamps, reactors, sensors, and control systems.
`
`11.
`
`I am a named inventor on multiple international patents and patent
`
`applications, including four U.S. Patents related to systems and methods involving
`
`UV radiation for water treatment and measurement.
`
`12.
`
`I am a Board Member of Confluence, a water technology cluster located
`
`in the Ohio River valley area and supported by the EPA. I was elected President of
`
`the International Ultraviolet Association (IUVA) in 2017 and completed service as
`
`Past-President in 2021. I currently serve as Regional Director, Americas, for the
`
`IUVA. I have served as a board and/or committee member of a number of other
`
`industry organizations,
`
`including
`
`the Water and Wastewater Equipment
`
`Manufacturers Association (WWEMA), the American Water Works Association
`
`(AWWA), and the Water Environmental Federation (WEF).
`
`
`
`
`
`7
`
`
`
`13.
`
`I have received a number of industry awards, including “UV Light
`
`Award” from IUVA for services to the UV industry, “Innovator of the Year, 2019”
`
`from Confluence for growth of UV business, and “Global Innovation Award” from
`
`both IUVA and Halma PLC for invention of a unique UV-LED water sensor.
`
`III. BASIS FOR OPINIONS
`
`14. My opinions and analysis set forth in this Declaration are based on my
`
`personal knowledge and experience, including my education, training, and work
`
`experience with UV disinfection methods and the analysis, design, and development
`
`of UV disinfection systems. In addition, I have carefully reviewed the following
`
`documents:
`
`(A)
`
`the ’605 Patent (EX1001);
`
`(B)
`
`the prosecution history of the ’605 Patent (EX1002);
`
`(C)
`
`the Petition;
`
`(D) U.S. Patent Pub. No. 2005/0079096 to Brown-Skrobot et al.
`
`(EX1004, “Brown-Skrobot”);
`
`(E) Clauss, M., Mannesmann, R. and Kolch, A., Photoreactivation
`
`of Escherichia coli and Yersinia enterolytica after Irradiation
`
`with a 222 nm Excimer Lamp Compared to a 254 nm Low-
`
`pressure Mercury Lamp, 33 ACTA HYDROCHIMICA ET
`
`HYDROBIOLOGICA 579 (Dec. 2005) (EX1005, “Clauss”);
`
`
`
`
`
`8
`
`
`
`(F) U.S. Patent Pub. No. 2005/0163648 to Liang (EX1006, “Liang”)
`
`(G) U.S. Patent Pub. No. 2007/0102280 to Hunter (EX1007);
`
`(H)
`
`Ian A. Ramsay et al., The Synergistic Effect of Excimer and Low-
`
`Pressure Mercury Lamps on the Disinfection of Flowing Water,
`
`63 J. FOOD PROT. 1529 (2000) (EX1008);
`
`(I) U.S. Patent No. 9,700,642 to Neister (EX1009);
`
`(J) Kogelschatz U. et al., High-intensity sources of incoherent UV
`
`and VUV excimer radiation for low-temperature materials
`
`processing, 168 APPLIED SURFACE SCI. 29 (May–June 2000)
`
`(EX1011);
`
`(K) Kowalski W.J. et al., Mathematical Modeling of Ultraviolet
`
`Germicidal Irradiation
`
`for Air Disinfection, 2 QUANT.
`
`MICROBIOL. 249 (2000) (EX1012);
`
`(L) HARVEY LODISH ET AL., MOLECULAR CELL BIOLOGY 651 (Sara
`
`Tenney et al. eds., 4th ed. 2001) (EX1013);
`
`(M) Frederick L. Gates, A study of the bactericidal action of ultra
`
`violet light. III. The absorption of ultra violet light by bacteria,
`
`14 J. GEN. PHYSIOLOGY 31 (1930) (EX1014).
`
`(N) U.S. Patent No. 6,283,986 to Johnson (EX1015);
`
`(O) U.S. Patent Publication No. 2005/0173652 to Ressler (EX1016);
`
`
`
`
`
`9
`
`
`
`(P) U.S. Patent No. 7,173,254 to Sauska (EX1030)
`
`Some additional materials that I have reviewed in preparing this Declaration include
`
`the following documents:
`
`(A) U.S. ENVIRONMENTAL PROTECTION AGENCY, Ultraviolet
`
`Disinfection Guidance Manual (June 2003) (APPXB); and
`
`(B) The Electric Power Research Institute, UV Disinfection for
`
`Water and Wastewater Treatment (1996) (APPXC).
`
`In this Declaration, I may refer to other documents not listed above, which I
`
`have also reviewed.
`
`IV. LEGAL PRINCIPLES
`
`15.
`
`I have been informed by Counsel of the legal principles relating to
`
`patent validity that I have applied in forming my opinions. My understanding of the
`
`relevant standards is discussed throughout this declaration.
`
`16.
`
`I have been informed by Counsel that, in an inter partes review,
`
`Petitioners have the burden of proving that each challenged claim is unpatentable by
`
`a preponderance of the evidence—i.e., that the claims are more likely than not
`
`unpatentable.
`
`17.
`
`I have been informed by Counsel that for a patent claim to be found
`
`“obvious” under 35 U.S.C. § 103, all the elements/limitations of the patent claim
`
`may be found in a combination of references at which a person of ordinary skill in
`
`
`
`
`
`10
`
`
`
`the art would have been reasonably expected to arrive. I understand that a proper
`
`analysis of whether an invention is unpatentable for obviousness includes: (1) a
`
`review of the scope and content of the prior art; (2) the differences between the
`
`patent claims at issue and the prior art; (3) the level of ordinary skill in the field of
`
`the invention at the time of the invention; and (4) any so called “secondary
`
`considerations” of nonobviousness, which include: (i) “long felt need” for the
`
`claimed invention; (ii) commercial success attributable to the claimed invention,
`
`(iii) unexpected results of the claimed invention; and (iv) “copying” of the claimed
`
`invention by others. I understand that a showing of obviousness requires some
`
`articulated reasoning with a rational underpinning to support the combination of the
`
`references. I understand that in consideration of the issue of obviousness it is
`
`important to identify whether a reason existed at the time of the invention that would
`
`have led a POSITA to combine elements of the references in a way that yields the
`
`claimed invention.
`
`18.
`
`I have been informed by Counsel that a claim can be obvious in light of
`
`a single prior art reference or multiple prior art references. To be obvious in light of
`
`a single prior art reference or multiple prior art references, there must be a reason to
`
`modify the single prior art reference, or combine two or more references, in order to
`
`achieve the claimed invention. This reason may come from a teaching, suggestion,
`
`or motivation to combine, or may come from the reference or references themselves,
`
`
`
`
`
`11
`
`
`
`the knowledge or “common sense” of one skilled in the art, or from the nature of the
`
`problem to be solved, and may be explicit or implicit from the prior art as a whole.
`
`I understand that it is improper to rely on hindsight in making the obviousness
`
`determination. Moreover, to show a patent claim is obvious in light of prior art, the
`
`POSITA must have had a reasonable expectation of success that modifying and/or
`
`combining the prior art would have resulted in the claimed invention.
`
`19.
`
`I understand that a claim may be considered unpatentable for
`
`obviousness for various reasons. I have been informed that the following exemplary
`
`rationales may support a finding of obviousness:
`
`(A) combining prior art elements according to known methods to yield
`
`predictable results;
`
`(B) simply substituting one known element for another to obtain
`
`predictable results;
`
`(C) use of a known technique to improve similar devices in the same
`
`way;
`
`(D) applying a known technique to a known device ready for
`
`improvement to yield a predictable result;
`
`(E) choosing from a finite number of identified, predictable solutions
`
`with a reasonable expectation of success;
`
`
`
`
`
`12
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`
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`(F) known work in a field that prompts variations in the work in the
`
`same or a different field that leads to predictable results; and
`
`(G) some teaching, suggestion, or motivation in the prior art that would
`
`have led a person of ordinary skill in the art to modify a prior art
`
`reference or combine multiple prior art references or teachings to
`
`arrive at the claimed invention.
`
`V.
`
`PERSON OF ORDINARY SKILL IN THE ART
`
`20. The ’605 Patent generally relates to disinfecting and sterilizing a
`
`substance or surface using lamps capable of generating UV light, particular at
`
`wavelengths of 222, 254, and/or 282 nanometers (“nm”). The germicidal properties
`
`of UV light at these wavelengths are well-known and are commonly achieved by
`
`using artificial UV light sources, such as UV LEDs and gas-discharge lamps. These
`
`artificial UV light sources are commonly used to disinfect water, air, food, and many
`
`other substances and surfaces in a vast number of industries, including agriculture,
`
`transportation, water and wastewater treatment, medicine, and many others. As such,
`
`it is my opinion that the ’605 Patent is in the fields of biological, chemical,
`
`environmental, electrical, mechanical, and/or systems engineering, or a related field
`
`like physical science, and a complete understanding of the ’605 Patent requires some
`
`experience and appreciation of UV disinfection technology and systems.
`
`
`
`
`
`13
`
`
`
`21.
`
`I understand that the teachings of the prior art are viewed through the
`
`eyes of a POSITA. It is my opinion that the relevant POSITA would have had a
`
`Bachelor’s degree in biological, chemical, environmental, electrical, mechanical,
`
`and/or systems engineering, or an equivalent degree such as one in physics or similar
`
`subject matter, would be familiar with the fundamentals of UV gas-discharge lamps
`
`(including excimer lamps), and would have had at least approximately two years of
`
`work or research experience in UV disinfection technology and/or systems. Also, an
`
`increase in experience could compensate for less education, and an increase in
`
`education could likewise compensate for less experience. My analysis is thus based
`
`on the perspective of a POSITA having this level of knowledge and skill in the
`
`timeframe leading up to the date of invention of the ’605 Patent.
`
`22.
`
`I have been informed by Counsel that the earliest claimed priority date
`
`for the ’605 Patent is January 29, 2009.
`
`23.
`
`I have also been informed that patents, patent applications, or printed
`
`publications published more than one year before these dates qualifies as prior art,
`
`although I understand that references published less than one year before those dates
`
`can also qualify as prior art in certain circumstances. I have applied this former
`
`timeframe in my analysis as being the relevant time of the ’605 Patent, although the
`
`analysis would be the same using a timeframe of several years earlier.
`
`
`
`
`
`14
`
`
`
`24. Based on my experience and education, I believe that I am qualified to
`
`opine as to knowledge and level of skill of one of ordinary skill in the art at the time
`
`of the invention of the ’605 Patent (which I further describe below) and what such a
`
`person would have understood at that time, and the state of the art during that time.
`
`VI. CLAIM CONSTRUCTION
`
`25.
`
`In making this Declaration, I have been asked to consider the terms
`
`found in the claims of the ’605 Patent according to the plain and ordinary meaning
`
`standard applied in Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) for how
`
`those terms would have been understood by a POSITA at the time of the claimed
`
`invention.
`
`VII. SUMMARY OF OPINIONS
`
`26. Based on my experience and expertise, and my review of the prior art
`
`listed above, I conclude that:
`
` claims 1–2 of the ’605 Patent are obvious under 35 U.S.C. § 103(a) by
`
`Brown-Skrobot in view of Clauss; and
`
` claims 5-6 of the ’605 Patent are obvious under 35 U.S.C. § 103(a) by
`
`Brown-Skrobot and Clauss in view of Liang.
`
`VIII. BACKGROUND OF THE TECHNOLOGY
`
`27. As I mentioned in Section II above, I served as a contributor to the
`
`United States Environmental Protection Agency’s (EPA) Ultraviolet Disinfection
`
`
`
`
`
`15
`
`
`
`Guidance Manual, which provides technical information on the application of UV
`
`light for the disinfection of drinking water by public water systems and is attached
`
`as Appendix B to this Declaration. I have personal knowledge that this publication
`
`was publicly available as early as June 2003 when it was published in draft form to
`
`the general public for comment, and therefore I believe that it provides valuable
`
`insight into the knowledge of a POSITA regarding certain topics relevant to my
`
`analysis. Therefore, I cite this publication extensively below.
`
`A.
`
`Fundamentals of UV Light
`
`28. Electromagnetic radiation is a type of energy more commonly known
`
`as light. Light exhibits properties of both particles and waves, a concept known as
`
`wave-particle duality. In 1905, Albert Einstein first proposed that light consists of
`
`quanta—“packets” with fixed energies corresponding to certain frequencies. We
`
`now know light quanta as photons—fundamental particles comprising light. This
`
`body of research eventually led to Einstein receiving the 1921 Nobel Prize in
`
`Physics.
`
`29. The electromagnetic spectrum is the range of frequencies of photons
`
`and their respective wavelengths and photon energies. Electromagnetic radiation
`
`energy is defined by the frequency, or equivalently the wavelength, of the photon.
`
`This relationship is expressed by Planck’s energy formula:
`
`𝐸 = 𝑁ℎ𝛾 =
`
`𝑁ℎ𝑐
`𝜆
`
`
`
`
`
`
`
`16
`
`
`
`where N is the number of moles of photons, h is Planck’s constant, c is the speed of
`
`light, and λ is the wavelength of the photons. Light is classified by the frequency (or,
`
`equivalently, wavelength or energy) of the photon. (EX1013, 651.)
`
`30. The electromagnetic spectrum is divided into regions based upon the
`
`wavelength (or equivalently frequency or energy) of
`
`the photon. These
`
`classifications include visible light, radio waves, ultraviolet, and many others.
`
`31. UV light is the region of the electromagnetic spectrum that lies between
`
`X-rays and visible light. The UV spectrum is divided into four regions as shown in
`
`the figure below: (1) vacuum UV (100 to 200 nm); (2) UV-C (200 to 280 nm);
`
`(3) UV-B (280 to 315 nm); and (4) UV-A (315 to 400 nm). (APPXB, 2-2.)
`
`
`
`(Id., FIG. 2.1)
`
`B. Discovery of the Germicidal Properties of UV Light
`
`32. UV disinfection occurs due to the germicidal action of UV-B and UV-
`
`C with microorganisms. The germicidal action of UV-A and vacuum UV is known
`
`but impractical for many applications. The ’605 Patent is primarily concerned with
`
`
`
`
`
`17
`
`
`
`the germicidal action of UV-B and UV-C, so my discussion here will be limited to
`
`UV light ranges between 200 and 300 nm. (Id., 2-3.)
`
`33. UV disinfection is an established technology supported by 150 years of
`
`fundamental and applied research and practice in North America and Europe. UV
`
`germicidal irradiation (“UVGI”) is a well-known disinfection method using UV light
`
`to inactivate microorganisms, i.e. render them incapable of replication and, hence,
`
`sometimes referred to as “killing” microorganisms. Inactivated microorganisms are
`
`also sometimes referred to as “dead”.
`
`34. The idea of using UV light at particular wavelengths to kill
`
`microorganisms is very old. Arthur Downes and Thomas Blunt first discovered the
`
`germicidal properties of sunlight in the 1880s. (Id., 2-1.) A series of studies in the
`
`late 1800s revealed that sunlight, especially the UV rays, was capable of killing
`
`many different kinds of bacteria. (Id., 2-1 to 2-2.)
`
`35. Those early investigations pointed to a key factor applied in UVGI
`
`today: inactivation depends on the “Dose” and wavelength of radiation received.
`
`“Dose” is the product of “Intensity” and exposure duration. Dose relates to the
`
`amount of photon energy received by a substance or surface and is expressed in
`
`terms of energy per unit area. (Id., 2-8 to 2-10.)
`
`
`
`
`
`18
`
`
`
`C. A Brief History of UVGI
`
`36. The idea of using UV light to disinfect substances and surfaces is not
`
`new. Niels Finsen was awarded the 1903 Nobel Prize in Medicine for his use of UV
`
`against lupus vulgaris, tuberculosis of the skin. I understand that during the 1918–
`
`1919 Spanish Flu pandemic, it was even common practice for physicians to put the
`
`sick outside in tents or in specially designed open wards so that they were exposed
`
`to sunlight and fresh air.
`
`37. The idea of using artificial UV light sources for disinfection
`
`applications is not new. The first drinking water disinfection application using
`
`artificial UV light sources in the form of pressurized mercury lamps was
`
`implemented in Marseilles, France in 1910. (Id., 2-1 to 2-2.) The first reliable
`
`applications of UV light for disinfecting municipal drinking water occurred in
`
`Switzerland and Austria in 1955. (Id., 2-2.) By 1985, the number of installations in
`
`these countries had risen to approximately 500 and 600, respectively. By 1996, there
`
`were over 2000 UV disinfection systems treating drinking water in Europe. (Id., 2-
`
`2.)
`
`D. Artificial UV Light Sources: Gas-Discharge Lamps
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`38. Artificial UV light sources for disinfection applications are not new.
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`Researchers began developing artificial UV light sources in the early 1900s. The
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`first artificial UV light source, built in 1901, was a lamp containing pressurized
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`19
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`mercury. (Id., 2-1 to 2-2.) One of the first notable improvements to these early
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`devices was the use of quartz as a UV transmitting material in 1906. (Id., 2-1 to 2-
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`2.) Mercury lamps with quartz are still widely used today.
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`39. Until the modern advent of UV LED’s, gas-discharge lamps were the
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`typical means for generating UV wavelengths for UVGI. (Id., 2-2.) Simply put, gas-
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`discharge lamps are made by putting a gas, such as air, into a UV-transparent glass
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`tube and applying a voltage and current sufficient to ignite a discharge in the gas,
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`resulting in a discharge of photons.
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`40. The specific wavelengths of light emitted from photon discharge
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`depend on the elemental composition of the gas and the power level of the lamp.
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`Some of the gas mixtures are high pressure and generate many overlapping UV
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`wavelengths, as well as intense visible light output. But there are also several unique
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`gas mixtures that have characteristic wavelengths that have dominated the industry.
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`These gas mixtures emit light predominately in a narrow wavelength range, known
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`as “monochromatic” light. The gas mixtures and their characteristic wavelength
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`emissions that are relevant here are:
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`Mercury—253.7 nm wavelength;
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`Xenon-Iodine (“XeI”)—253 nm wavelength;
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`Krypton-Chlorine (“KrCl”)—222 nm wavelength; and
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`Xenon-Bromine (“XeBr”)—282 nm wavelength.
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`20
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`41. All gas discharges emit light at multiple wavelengths, but those listed
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`above emit light at the indicated wavelength, with approximately 90% of the light at
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`that wavelength.
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`E. Mercury Vapor Discharge Lamps and KrCl Excimer
`Lamps
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`42. Most UV lamps designed for water treatment use a gas mixture
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`containing mercury vapor. The light output depends on the concentration of mercury
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`atoms, which is directly related to the mercury vapor pressure. Mercury vapor lamps
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`are primarily tubular lamps, a design following the development of the fluorescent
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`lamp in the 1930s.
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`43. The KrCl excimer lamp is another type of gas discharge lamp. It has
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`been around for over 60 years and is made by placing krypton gas, chlorine gas, and
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`possibly other gases inside a glass tube and applying a high voltage across the tube
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`to create an electrical discharge inside the tube. This is similar to a neon sign where
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`neon gas is placed inside the tube and a voltage is applied across the tube to cause a
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`gas discharge and a subsequent and familiar red-orange glow from the gas. In the
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`case of a KrCl lamp, if the lamp is made properly, then most of the light coming
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`from the gas tube will be centered around a 222 nm wavelength.
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`44.
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`“Excimer” is an acronym for excited dimer. A dimer is a molecule
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`consisting of two smaller molecular components called monomers. Excimers can
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`only form when one of the dimer components is in an excited state, hence the term
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`21
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`excited dimer, and are considered monochromatic light sources because they emit
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`photons of a very narrow band, essentially at one single wavelength. The figure
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`below comes from my personal copy of a publication that I obtained in 1996, and I
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`have personal knowledge that this publication was available to the public in 1996
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`because I received my copy by purchase from a work colleague named Paul Ropic,
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`and I have attached this publication to my Declaration as Appendix C. The public
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`availability of this publication is further corroborated by the copyright page, which
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`provides “Ordering Information” for ordering and obtaining this report. (APPXC,
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`2.) The below figure shows the gas mixtures used to emit particular wavelengths,
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`along with others that were being developed at the time for use in excimer lamps.
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`(Id., 11.) This publication also mentions that excimer lamps, including KrCl lamps
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`emitting 222 nm wavelengths, were becoming commercially available as early as
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`the publication date of 1996. (See, e.g., id., 8.)
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`22
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`(Source: APPXC, UV Disinfection for Water and Wastewater Treatment, The
`Electric Power Research Institute (December 1995))
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`45. Excimer lamps are distinguishable from excimer lasers, which were
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`developed later. An excimer lamp produces divergent and incoherent (i.e.
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`noncoherent) radiation, meaning that the radiation is directed in many directions.
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`(See APPXC, 4-6.) Excimer lasers, on the other hand, produce coherent, non-
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`divergent radiation, meaning the radiation is collimated in one direction. (Id.) The
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`optics that are required for an excimer laser significantly increase the cost of the
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`excimer laser above that of an excimer lamp. (Id.)
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`F.
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`The Photobiological Effects of UV Light
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`46. UV light has been recognized for its therapeutic and physiological
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`properties for over 100 years. In the 1920s, reports in medical journals began to
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`23
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`claim that UV light could cause skin cancer, and cases of exposure led to regulation.
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`Yet physicians and therapists regularly exposed the injured, ill, and/or infirm to UV
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`light treatment. For example, before the advent of the polio vaccine in the 1950s,
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`therapists would subject polio sufferers’ to UV treatment, using protective glasses
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`to shield eyes from the potentially harmful rays.
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`(Source: Vecchio/Getty Images, available at
`https://www.gettyimages.com/photos/polio-patient?assettype=image&phrase=
`polio%20patient&sort=mostpopular&license=rf%2Crm)
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`47. Different wavelengths of UV light cause disinfection by different
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`mechanisms. The particular disinfection mechanism is entirely dependent on the
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`photon wavelength, not the particular UV light source used to generate that
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`wavelength. The mechanism of disinfection by UV light differs considerably from
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`chemical disinfectants such as chlorine and ozone. Chemical disinfectants inactivate
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`24
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`microorganisms by destroying or damaging cellular structures, interfering with
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`metabolism, and hindering biosynthesis and growth. (APPXB, 2-6 to 2-7.)
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`48.
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`In 1930, Gates first identified a link between UV disinfection and
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`absorption of UV light by nucleic acid. (EX1014, 40; see also EX1009, 4:16-19
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`(citing EX1014); APPXB, 2-2.) Gates’s studies showed the first analytical
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`bactericidal action spectrum of UV light with peak effectiveness at 265 nm, very
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`near the 254 nm output of low-pressure mercury germicidal lamps. (APPXB, 2-2.)
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`49. There are
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`fundamental differences between
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`the disinfection
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`mechanisms of UV light based on wavelength. The 265 nm region (exhibited by
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`mercury lamps) inactivates microorganisms through photon absorption of their DNA
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`or RNA molecules. In particular, 254 nm photons inactivate microorganisms by
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`damaging the nucleic acid of the DNA/RNA structure, thereby preventing the
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`microorganism from replicating. A microorganism that cannot replicate cannot
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`infect a host. The 222 nm region (exhibited by KrCl lamps) kills microorganisms
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`through photon absorption by proteins. In particular, 222 nm photons kill
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`microorganisms by damaging the peptide bonds found in proteins, thereby rendering
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`the microorganism inactive and unable to interact with its surrounding environment,
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`which eventually leads to its death. UV emission at 222 nm does not cause DNA or
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`RNA damage. This is a key point for the safety of humans and animals when using
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`222 nm light. Anything damaging DNA or RNA can lead to the formation of
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`25
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`mutations that could lead to cancer, thus it is important that the light does not cause
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`damage to these molecules in living tissu
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