Free Stipulation - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

ALMA LASERS, LTD., and ALMA LASERS, INC., Plaintiffs, v. THERMAGE, INC., Defendant. STIPULATION AND PROPOSED ORDER TO PERMIT FILING OF AMENDED ANSWER AND COUNTERCLAIMS WHEREAS, Alma Lasers, Ltd. and Alma Lasers, Inc. (collectively, "plaintiffs" or "Alma Lasers") brought this suit against Thermage, Inc. ("defendant" or Thermage") on April 26, 2007 (see D.I. 1), seeking a declaratory judgment of non-infringement and invalidity of U.S. Patent Nos. 6,749,624; 6,405,090; 6,387,380; 6,381,498; 6,377,855; 6,241,753; 5,919,219; 5,755,753; and 5,660,836; and WHEREAS, Thermage responded to the Complaint on June 20, 2007 and asserted counterclaims for infringement of U.S. Patent Nos. 6,749,624; 6,405,090; 6,387,380; 6,381,498; 6,377,855; 6,241,753; 5,755,753; 5,660,836; 7,229,436; and 7,189,230 (see D.I. 8); and WHEREAS, Alma Lasers responded to Thermage's counterclaims on July 10, 2007 (see D.I. 11); and WHEREAS, U.S. Patent No. 7,267,675 has been recently issued to Thermage; and; WHEREAS, Thermage wishes to assert additional claims of infringement against Alma Lasers based upon the recently-issued U.S. Patent No. 7,267,675; and C.A. No.: 07-224-***-MPT

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WHEREAS, the Scheduling Order in this action (D.I. 24) sets forth a deadline of February 11, 2008 for motions to join other parties or to amend or supplement the pleadings; IT IS HEREBY STIPULATED by the parties to this action, subject to the approval of the Court, that Thermage may file and serve an Amended Answer and Counterclaims in the form attached hereto as Exhibit 1, together with the blacklined version attached as Exhibit 2. DATED: December 7, 2007 ASHBY & GEDDES YOUNG CONAWAY STARGATT & TAYLOR, LLP

/s/ John G. Day
Steven J. Balick (#2114) John G. Day (#2403) Lauren E. Maguire (#4261) 500 Delaware Avenue, 8th Floor P.O. Box. 1150 Wilmington, DE 19899 (302) 654-1888 [email protected] Attorneys for Plaintiffs

/s/ Karen L. Pascale
Josy W. Ingersoll (#1088) Karen L. Pascale (#2903) Karen E. Keller (I.D. #4489) The Brandywine Building 1000 West Street, 17th Floor Wilmington, DE 19801 (302) 571-6600 [email protected] Attorneys for Defendant

SO ORDERED this ________ day of ____________, 2007. ______________________________ United States Magistrate Judge

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CERTIFICATE OF SERVICE

I, Karen L. Pascale, Esquire, hereby certify that on December 7, 2007, I caused to be electronically filed a true and correct copy of the foregoing document with the Clerk of the Court using CM/ECF, which will send notification that such filing is available for viewing and downloading to the following counsel of record: Steven J. Balick, Esquire [[email protected]] John G. Day, Esquire [[email protected]] Lauren E. Maguire [[email protected]] ASHBY & GEDDES 500 Delaware Avenue P.O. Box 1150 Wilmington, DE 19899 I further certify that on December 7, 2007, I caused a copy of the foregoing document to be served by e-mail on the above-listed counsel of record, and on the following non-registered participants in the manner indicated: By E-Mail Hugh A. Abrams, Esquire [[email protected]] Marlee A. Jansen, Esquire [[email protected]] Dino Koutsoubas, Esquire [[email protected]] SIDLEY AUSTIN LLP One South Dearborn Street Chicago, IL 60603

YOUNG CONAWAY STARGATT & TAYLOR, LLP

/s/ Karen L. Pascale
Karen L. Pascale (No. 2903) [[email protected]] The Brandywine Building 1000 West Street, 17th Floor Wilmington, Delaware 19801 (302) 571-6600 Attorneys for Defendant, Thermage, Inc.

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EXHIBIT 1

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

ALMA LASERS, LTD., and ALMA LASERS, INC., Plaintiffs, v. THERMAGE, INC. Defendant. THERMAGE, INC.'S AMENDED ANSWER AND COUNTERCLAIMS Defendant Thermage, Inc. ("Thermage") answers plaintiffs Alma Lasers, Ltd. and Alma Lasers, Inc.'s (collectively "Alma") complaint for declaratory judgment as follows: 1. Thermage is without sufficient knowledge or information to form a belief as to C.A. No. 07-224-***-MPT JURY TRIAL DEMANDED

truth of the allegations of paragraph 1 and, therefore, denies same. 2. Thermage is without sufficient knowledge or information to form a belief as to

truth of the allegations of paragraph 2 and, therefore, denies same. 3. 4. Admitted. Thermage admits that the complaint purports to state a claim for declaratory

judgment of non-infringement and invalidity of U.S. Patent Nos. 6,749,624; 6,405,090; 6,387,380; 6,381,498; 6,377,855; 6,241,753; 5,919,219; 5,755,753; and 5,660,836; and that copies of those patents were attached to the complaint. Thermage denies that Alma's claims have any merit. 5. 6. Admitted. Admitted.

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7.

Thermage admits that it sent a letter to Alma on February 14, 2007, regarding pre-

market release clinical data for Alma's "Accent" product. Thermage further admits that the letter stated that the Accent may infringe U.S. Patent No. 6, 749,624. Thermage denies the remaining allegations of paragraph 7. 8. The April 10, 2006, letter to Alma did not reference or assert specific patents.

Rather, the April 10, 2006, letter forwarded an executed Confidentiality Agreement that provided that settlement discussions, which occurred from March 21, 2006, would be subject to Rule 408 of the Federal Rules of Evidence, would be kept in confidence and, would not be used by either party for any purpose in any legal proceeding. The May 18, 2006, letter was covered by and specifically referenced this Agreement. Alma's reference to the April 10, 2006, and the May 18, 2006, letters in this action breaches this Agreement. 9. Thermage is without sufficient knowledge or information to form a belief as to

truth of the allegations of paragraph 9 and, therefore, denies same. 10. Thermage is without sufficient knowledge or information to form a belief as to

truth of the allegations of paragraph 10 and, therefore, denies same. 11. forth herein. 12. 13. 14. 15. 16. forth herein. Admitted. Denied. Denied. Denied. Thermage incorporates by reference its responses to paragraphs 1-10 as if fully set Thermage incorporates by reference its responses to paragraphs 1-10 as if fully set

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17. 18. 19. 20. 21. forth herein. 22. 23. 24. 25. 26. forth herein. 27. 28. 29. 30. 31. forth herein. 32. 33. 34. 35.

Admitted. Denied. Denied. Denied. Thermage incorporates by reference its responses to paragraphs 1-10 as if fully set

Admitted. Denied. Denied. Denied. Thermage incorporates by reference its responses to paragraphs 1-10 as if fully set

Admitted. Denied. Denied. Denied. Thermage incorporates by reference its responses to paragraphs 1-10 as if fully set

Admitted. Denied. Denied. Denied.

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36. forth herein. 37. 38. 39. 40. 41. forth herein. 42. 43. 44. 45. 46. forth herein. 47. 48. 49. 50. 51. forth herein. 52. 53. 54.

Thermage incorporates by reference its responses to paragraphs 1-10 as if fully set

Admitted. Denied. Denied. Denied. Thermage incorporates by reference its responses to paragraphs 1-10 as if fully set

Admitted. Upon information and belief, admitted. Denied. Denied. Thermage incorporates by reference its responses to paragraphs 1-10 as if fully set

Admitted. Denied. Denied. Denied. Thermage incorporates by reference its responses to paragraphs 1-10 as if fully set

Admitted. Denied. Denied.

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55.

Denied. PRAYER FOR RELIEF

WHEREFORE, defendant Thermage prays that the Court: A. enter judgment in favor of Thermage and dismisses Alma's Complaint for

Declaratory Judgment; B. award Thermage its attorney fees and costs for having to defend Alma's

Complaint for Declaratory Judgment; and C. award any other relief that it deems just and proper.

DEFENDANT THERMAGE, INC,'S AMENDED COUNTERCLAIMS AGAINST PLAINTIFFS ALMA LASERS, LTD. AND ALMA LASERS, INC. Thermage counterclaims against Alma Lasers, Ltd. and Alma Lasers, Inc. as follows: NATURE OF THE ACTION 1. This is an action for patent infringement and arises under the patent laws of the

United States, Title 35. THE PARTIES 2. Thermage is a corporation organized and existing under the laws of the State of

Delaware, having its principal place of business in Hayward, California. 3. On information and belief, Alma Lasers, Ltd. is a corporation organized and

existing under the laws of the country of Israel and having its principal place of business at 14 Halamish, Caesarea Industrial Park, Caesarea, Israel 38900. 4. On information and belief, Alma Lasers, Inc. is a corporation organized and

existing under the laws of the State of Delaware and having its principal place of business at 485 Half Day Road, Suite 100, Buffalo Grove, Illinois.

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JURISDICTION AND VENUE 5. The Court has subject matter jurisdiction over these patent infringement

counterclaims pursuant to 28 U.S.C. §§ 1331 and 1338(a). The Court has personal jurisdiction over Alma Lasers, Ltd. and Alma Lasers, Inc. (collectively "Alma") by virtue of Alma's filing its complaint with this Court and by virtue of Alma's substantial and continuous contacts with this judicial district, including its advertising and sale and/or distribution in this judicial district of the infringing products which are the subject of these patent infringement counterclaims. 6. Venue in this Court is based upon 28 U.S.C. §§ 1391 and 1400(b). CAUSES OF ACTION FOR PATENT INGRINGEMENT 7. Thermage is the owner of United States Patent No. 6,749,624 ("the `624 patent"),

which was duly and legally issued on June 15, 2004, and is entitled "Fluid Delivery Apparatus." A copy of the `624 patent is attached as Exhibit A. 8. Thermage is the owner of United States Patent No. 6,405,090 ("the `090 patent"),

which was duly and legally issued on June 11, 2002, and is entitled "Method and Apparatus for Tightening Skin by Controlled Contraction of Collagen Tissue." A copy of the `090 patent is attached as Exhibit B. 9. Thermage is the owner of United States Patent No. 6,387,380 ("the `380 patent"),

which was duly and legally issued on May 14, 2002, and is entitled "Apparatus for Controlled Contraction of Collagen Tissue." A copy of the `380 patent is attached as Exhibit C. 10. Thermage is the owner of United States Patent No. 6,381,498 ("the `498 patent"),

which was duly and legally issued on April 30, 2002, and is entitled "Method and Apparatus for Controlled Contraction of Collagen Tissue." A copy of the `498 patent is attached as Exhibit D.

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11.

Thermage is the owner of United States Patent No. 6,377,855 ("the `855 patent"),

which was duly and legally issued on April 23, 2002, and is entitled "Method and Apparatus for Controlled Contraction of Collagen Tissue." A copy of the `855 patent is attached as Exhibit E. 12. Thermage is the owner of United States Patent No. 6,241,753 ("the `1753

patent"), which was duly and legally issued on June 5, 2001, and is entitled "Method for Scar Collagen Formation and Contraction." A copy of the `1753 patent is attached as Exhibit F. 13. Thermage is the owner of United States Patent No. 5,755,753 ("the `5753

patent"), which was duly and legally issued on May 26, 1998, and is entitled "Method for Controlled Contraction of Collagen Tissue." A copy of the `5753 patent is attached as Exhibit G. 14. Thermage is the owner of United States Patent No. 5,660,836 ("the `836 patent"),

which was duly and legally issued on August 26, 1997, and is entitled "Method and Apparatus for Controlled Contraction of Collagen Tissue." A copy of the `836 patent is attached as Exhibit H. 15. Thermage is the owner of United States Patent No. 7,229,436 ("the `436 patent"),

which was duly and legally issued on June 12, 2007, and is entitled "Method and Kit for Treatment of Tissue." A copy of the `436 patent is attached as Exhibit I. 16. Thermage is the owner of United States Patent No. 7,189,230 ("the `230 patent"),

which was duly and legally issued on March 13, 2007, and is entitled "Method for Treated Skin and Underlying Tissue." A copy of the `230 patent is attached as Exhibit J. 17. Thermage is the owner of United States Patent No. 7,267,675 ("the `675 patent"),

which was duly and legally issued on September 11, 2007, and is entitled "RF Device with Thermo-Electric Cooler." A copy of the `675 patent is attached as Exhibit K.

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18.

Upon information and belief, Alma has manufactured and/or had manufactured

for it, sold, offered for sale, used, and/or imported skin and tissue treatment product marketed under the name Harmony. Upon information and belief, Alma provides a user's manual with each Harmony product instructing the customer how to perform various procedures on patients. 19. Upon information and belief, Alma has manufactured and/or had manufactured

for it, sold, offered for sale, used, and/or imported skin and tissue treatment product marketed under the name Accent XL. Upon information and belief, Alma provides a user's manual with each Accent XL product instructing the customer how to perform various procedures on patients.

COUNT I INFRINGEMENT OF THE `624 PATENT 20. 21. Thermage incorporates by reference paragraphs 1-19 as if set forth fully herein. The Harmony product infringes the `624 patent by virtue of Alma's manufacture,

sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 22. Alma's manufacture, sale, offer for sale, use, and/or importation of the Harmony

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Harmony product. 23. The Accent XL product infringes the `624 patent by virtue of Alma's

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 24. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product.

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25. willful.

Upon information and belief, Alma's infringing acts have been and continue to be

COUNT II INFRINGEMENT OF THE `090 PATENT 26. 27. Thermage incorporates by reference paragraphs 1-19 as if set forth fully herein. The Harmony product infringes the `090 patent by virtue of Alma's manufacture,

sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 28. Alma's manufacture, sale, offer for sale, use, and/or importation of the Harmony

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Harmony product. 29. The Accent XL product infringes the `090 patent by virtue of Alma's

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 30. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product. 31. willful. COUNT III INFRINGEMENT OF THE `380 PATENT 32. Thermage incorporates by reference paragraphs 1-19 as if set forth fully herein. Upon information and belief, Alma's infringing acts have been and continue to be

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33.

The Accent XL product infringes the `380 patent by virtue of Alma's

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 34. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product. 35. willful. COUNT IV INFRINGEMENT OF THE `498 PATENT 36. 37. Thermage incorporates by reference paragraphs 1-19 as if set forth fully herein. The Harmony product infringes the `498 patent by virtue of Alma's manufacture, Upon information and belief, Alma's infringing acts have been and continue to be

sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 38. Alma's manufacture, sale, offer for sale, use, and/or importation of the Harmony

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Harmony product. 39. The Accent XL product infringes the `498 patent by virtue of Alma's

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 40. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product.

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41. willful.

Upon information and belief, Alma's infringing acts have been and continue to be

COUNT V INFRINGEMENT OF THE `855 PATENT 42. 43. Thermage incorporates by reference paragraphs 1-19 as if set forth fully herein. The Harmony product infringes the `855 patent by virtue of Alma's manufacture,

sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 44. Alma's manufacture, sale, offer for sale, use, and/or importation of the Harmony

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Harmony product. 45. The Accent XL product infringes the `855 patent by virtue of Alma's

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 46. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product. 47. willful. COUNT VI INFRINGEMENT OF THE `1753 PATENT 48. Thermage incorporates by reference paragraphs 1-19 as if set forth fully herein. Upon information and belief, Alma's infringing acts have been and continue to be

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49.

The Harmony product infringes the `1753 patent by virtue of Alma's

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 50. Alma's manufacture, sale, offer for sale, use, and/or importation of the Harmony

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Harmony product. 51. The Accent XL product infringes the `1753 patent by virtue of Alma's

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 52. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product. 53. willful. COUNT VII INFRINGEMENT OF THE `5753 PATENT 54. 55. Thermage incorporates by reference paragraphs 1-19 as if set forth fully herein. The Harmony product infringes the `5753 patent by virtue of Alma's Upon information and belief, Alma's infringing acts have been and continue to be

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 56. Alma's manufacture, sale, offer for sale, use, and/or importation of the Harmony

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Harmony product.

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57.

The Accent XL product infringes the `5753 patent by virtue of Alma's

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 58. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product. 59. willful. COUNT VIII INFRINGEMENT OF THE `836 PATENT 60. 61. Thermage incorporates by reference paragraphs 1-19 as if set forth fully herein. The Accent XL product infringes the `836 patent by virtue of Alma's Upon information and belief, Alma's infringing acts have been and continue to be

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 62. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product. 63. willful. Upon information and belief, Alma's infringing acts have been and continue to be

COUNT IX INFRINGEMENT OF THE `436 PATENT 64. Thermage incorporates by reference paragraphs 1-19 as if set forth fully herein.

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65.

The Accent XL product infringes the `436 patent by virtue of Alma's

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 66. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product. 67. willful. COUNT X INFRINGEMENT OF THE `230 PATENT 68. 69. Thermage incorporates by reference paragraphs 1-19 as if set forth fully herein. The Accent XL product infringes the `230 patent by virtue of Alma's Upon information and belief, Alma's infringing acts have been and continue to be

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 70. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product. 71. willful. COUNT XI INFRINGEMENT OF THE `675 PATENT 72. Thermage incorporates by reference paragraphs 1-19 as if set forth fully herein. Upon information and belief, Alma's infringing acts have been and continue to be

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73.

The Accent XL product infringes claims 1 and 2 of the `675 patent by virtue of

Alma's manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 74. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product. 75. willful. PRAYER FOR RELIEF WHEREFORE, defendant Thermage prays for relief against plaintiff Alma as follows: A. That judgment be entered that Alma has been and is infringing U.S. Patent Nos. Upon information and belief, Alma's infringing acts have been and continue to be

6,749,624; 6,405,090; 6,387,380; 6,381,498; 6,377,855; 6,241,753; 5,755,753; 5,660,836; 7,229,436; 7,189,230; and 7,267,675 and that the infringement be found willful; B. That Alma, its agents, sales representatives, servants and employees, associates,

attorneys, successors and assigns, and any and all persons or entities acting by, through, under or in active concert or in participation with it, be enjoined and restrained preliminarily during the pendency of this action, and thereafter permanently, from further acts of infringement of U.S. Patent Nos. 6,749,624; 6,405,090; 6,387,380; 6,381,498; 6,377,855; 6,241,753; 5,755,753; 5,660,836; 7,229,436; 7,189,230; and 7,267,675; C. That a judgment be entered that Alma be required to pay over to Thermage all

damages sustained by Thermage due to such patent infringement and that such damages be trebled pursuant to 35 U.S.C. § 284 for the willful acts of infringement complained of herein;

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D.

That this case be adjudged and decreed exceptional under 35 U.S.C. § 285

entitling Thermage to an award of its reasonable attorney fees and that such reasonable attorney fees be awarded; E. F. That Thermage be awarded its costs and prejudgment interest on all damages; That Alma be required to file with the Court within thirty (30) days after entry of

the final judgment of this case a written statement under oath setting forth in detail the manner in which they have complied with the judgment; and G. and proper. JURY DEMAND Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Thermage demands a trial by jury. That Thermage be awarded such other and further relief as the Court deems just

YOUNG CONAWAY STARGATT & TAYLOR LLP

December ____, 2007

________________________________________ Josy W. Ingersoll (No. 1088) [[email protected]] Karen L. Pascale (# 2903) [[email protected]] Adam W. Poff (No. 3990) [[email protected]] The Brandywine Building 1000 West St., 17th Floor P.O. Box 391 Wilmington, Delaware 19899-0391 Telephone: 302-571-6600 - and -

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WOOD, HERRON & EVANS LLP J. Robert Chambers P. Andrew Blatt John P. Davis 2700 Carew Tower 441 Vine Street Cincinnati, Ohio 45202-2917 Telephone: (513) 241-2324 Facsimile: (513) 241-6234 Attorneys for Defendant, Thermage, Inc.

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EXHIBIT 2

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

ALMA LASERS, LTD., and ALMA LASERS, INC., Plaintiffs, v. THERMAGE, INC. Defendant. THERMAGE, INC'S.'S AMENDED ANSWER AND COUNTERCLAIMS Defendant Thermage, Inc. ("Thermage") answers plaintiffs Alma Lasers, Ltd. and Alma Lasers, Inc.'s (collectively "Alma") complaint for declaratory judgment as follows: 1. Thermage is without sufficient knowledge or information to form a belief as to C.A. No. 07-224-***-MPT JURY TRIAL DEMANDED

truth of the allegations of paragraph 1 and, therefore, denies same. 2. Thermage is without sufficient knowledge or information to form a belief as to

truth of the allegations of paragraph 2 and, therefore, denies same. 3. 4. Admitted. Thermage admits that the complaint purports to state a claim for declaratory

judgment of non-infringement and invalidity of U.S. Patent Nos. 6,749,624; 6,405,090; 6,387,380; 6,381,498; 6,377,855; 6,241,753; 5,919,219; 5,755,753; and 5,660,836; and that copies of those patents were attached to the complaint. Thermage denies that Alma's claims have any merit. 5. 6. Admitted. Admitted.

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7.

Thermage admits that it sent a letter to Alma on February 14, 2007, regarding pre-

market release clinical data for Alma's "Accent" product. Thermage further admits that the letter stated that the Accent may infringe U.S. Patent No. 6, 749,624. Thermage denies the remaining allegations of paragraph 7. 8. The April 10, 2006, letter to Alma did not reference or assert specific patents.

Rather, the April 10, 2006, letter forwarded an executed Confidentiality Agreement that provided that settlement discussions, which occurred from March 21, 2006, would be subject to Rule 408 of the Federal Rules of Evidence, would be kept in confidence and, would not be used by either party for any purpose in any legal proceeding. The May 18, 2006, letter was covered by and specifically referenced this Agreement. Alma's reference to the April 10, 2006, and the May 18, 2006, letters in this action breaches this Agreement. 9. Thermage is without sufficient knowledge or information to form a belief as to

truth of the allegations of paragraph 9 and, therefore, denies same. 10. Thermage is without sufficient knowledge or information to form a belief as to

truth of the allegations of paragraph 10 and, therefore, denies same. 11. forth herein. 12. 13. 14. 15. 16. forth herein. Admitted. Denied. Denied. Denied. Thermage incorporates by reference its responses to paragraphs 1-10 as if fully set Thermage incorporates by reference its responses to paragraphs 1-10 as if fully set

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17. 18. 19. 20. 21. forth herein. 22. 23. 24. 25. 26. forth herein. 27. 28. 29. 30. 31. forth herein. 32. 33. 34. 35.

Admitted. Denied. Denied. Denied. Thermage incorporates by reference its responses to paragraphs 1-10 as if fully set

Admitted. Denied. Denied. Denied. Thermage incorporates by reference its responses to paragraphs 1-10 as if fully set

Admitted. Denied. Denied. Denied. Thermage incorporates by reference its responses to paragraphs 1-10 as if fully set

Admitted. Denied. Denied. Denied.

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36. forth herein. 37. 38. 39. 40. 41. forth herein. 42. 43. 44. 45. 46. forth herein. 47. 48. 49. 50. 51. forth herein. 52. 53. 54.

Thermage incorporates by reference its responses to paragraphs 1-10 as if fully set

Admitted. Denied. Denied. Denied. Thermage incorporates by reference its responses to paragraphs 1-10 as if fully set

Admitted. Upon information and belief, admitted. Denied. Denied. Thermage incorporates by reference its responses to paragraphs 1-10 as if fully set

Admitted. Denied. Denied. Denied. Thermage incorporates by reference its responses to paragraphs 1-10 as if fully set

Admitted. Denied. Denied.

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55.

Denied. PRAYER FOR RELIEF

WHEREFORE, defendant Thermage prays that the Court: A. enter judgment in favor of Thermage and dismisses Alma's Complaint for

Declaratory Judgment; B. award Thermage isits attorney fees and costs for having to defend Alma's

Complaint for Declaratory Judgment; and C. award any other relief that it deems just and proper.

DEFENDANT THERMAGE, INC,'S AMENDED COUNTERCLAIMS AGAINST PLAINTIFFPLAINTIFFS ALMA LASERS, LTD. AND ALMA LASERS, INC. Thermage counterclaims against Alma Lasers, Ltd. and Alma Lasers, Inc. as follows: NATURE OF THE ACTION 1. This is an action for patent infringement and arises under the patent laws of the

United States, Title 35. THE PARTIES 2. Thermage is a corporation organized and existing under the laws of the State of

Delaware, having its principal place of business in Hayward, California. 3. On information and belief, Alma Lasers, Ltd. is a corporation organized and

existing under the laws of the country of Israel and having its principal place of business at 14 Halamish, Caesarea Industrial Park, Caesarea, Israel 38900. 4. On information and belief, Alma Lasers, Inc. is a corporation organized and

existing under the laws of the State of Delaware and having its principal place of business at 485 Half Day Road, Suite 100, Buffalo Grove, Illinois.

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JURISDICTION AND VENUE 5. The Court has subject matter jurisdiction over these patent infringement

counterclaims pursuant to 28 U.S.C. §§ 1331 and 1338(a). The Court has personal jurisdiction over Alma Lasers, Ltd. and Alma Lasers, Inc. (collectively "Alma") by virtue of Alma's filing its complaint with this Court and by virtue of Alma's substantial and continuous contacts with this judicial district, including its advertising and sale and/or distribution in this judicial district of the infringing products which are the subject of these patent infringement counterclaims. 6. Venue in this Court is based upon 28 U.S.C. §§ 1391 and 1400(b). CAUSES OF ACTION FOR PATENT INGRINGEMENT 7. Thermage is the owner of United States Patent No. 6,749,624 ("the `624 patent"),

which was duly and legally issued on June 15, 2004, and is entitled "Fluid Delivery Apparatus." A copy of the `624 patent is attached as Exhibit A. 8. Thermage is the owner of United States Patent No. 6,405,090 ("the `090 patent"),

which was duly and legally issued on June 11, 2002, and is entitled "Method and Apparatus for Tightening Skin by Controlled Contraction of Collagen Tissue." A copy of the `090 patent is attached as Exhibit B. 9. Thermage is the owner of United States Patent No. 6,387,380 ("the `380 patent"),

which was duly and legally issued on May 14, 2002, and is entitled "Apparatus for Controlled Contraction of Collagen Tissue." A copy of the `380 patent is attached as Exhibit C. 10. Thermage is the owner of United States Patent No. 6,381,498 ("the `498 patent"),

which was duly and legally issued on April 30, 2002, and is entitled "Method and Apparatus for Controlled Contraction of Collagen Tissue." A copy of the `498 patent is attached as Exhibit D.

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11.

Thermage is the owner of United States Patent No. 6,377,855 ("the `855 patent"),

which was duly and legally issued on April 23, 2002, and is entitled "Method and Apparatus for Controlled Contraction of Collagen Tissue." A copy of the `855 patent is attached as Exhibit E. 12. Thermage is the owner of United States Patent No. 6,241,753 ("the `1753

patent"), which was duly and legally issued on June 5, 2001, and is entitled "Method for Scar Collagen Formation and Contraction." A copy of the `1753 patent is attached as Exhibit F. 13. Thermage is the owner of United States Patent No. 5,755,753 ("the `5753

patent"), which was duly and legally issued on May 26, 1998, and is entitled "Method for Controlled Contraction of Collagen Tissue." A copy of the `5753 patent is attached as Exhibit G. 14. Thermage is the owner of United States Patent No. 5,660,836 ("the `836 patent"),

which was duly and legally issued on August 26, 1997, and is entitled "Method and Apparatus for Controlled Contraction of Collagen Tissue." A copy of the `836 patent is attached as Exhibit H. 15. Thermage is the owner of United States Patent No. 7,229,436 ("the `436 patent"),

which was duly and legally issued on June 12, 2007, and is entitled "Method and Kit for Treatment of Tissue." A copy of the `436 patent is attached as Exhibit I. 16. Thermage is the owner of United States Patent No. 7,189,230 ("the `230 patent"),

which was duly and legally issued on March 13, 2007, and is entitled "Method for Treated Skin and Underlying Tissue." A copy of the `230 patent is attached as Exhibit J. 17. Thermage is the owner of United States Patent No. 7,267,675 ("the `675 patent"),

which was duly and legally issued on September 11, 2007, and is entitled "RF Device with Thermo-Electric Cooler." A copy of the `675 patent is attached as Exhibit K.

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18.

Upon information and belief, Alma has manufactured and/or had manufactured

for it, sold, offered for sale, used, and/or imported skin and tissue treatment product marketed under the name Harmony. Upon information and belief, Alma provides a user's manual with each Harmony product instructing the customer how to perform various procedures on patients. 19. Upon information and belief, Alma has manufactured and/or had manufactured

for it, sold, offered for sale, used, and/or imported skin and tissue treatment product marketed under the name Accent XL. Upon information and belief, Alma provides a user's manual with each Accent XL product instructing the customer how to perform various procedures on patients.

COUNT I INFRINGEMENT OF THE `624 PATENT 20. 21. Thermage incorporates by reference paragraphs 1-1819 as if set forth fully herein. The Harmony product infringes the `624 patent by virtue of Alma's manufacture,

sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 22. Alma's manufacture, sale, offer for sale, use, and/or importation of the Harmony

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Harmony product. 23. The Accent XL product infringes the `624 patent by virtue of Alma's

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 24. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product.

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25. willful.

Upon information and belief, Alma's infringing acts have been and continue to be

COUNT II INFRINGEMENT OF THE `090 PATENT 26. herein. 27. The Harmony product infringes the `090 patent by virtue of Alma's manufacture, Thermage incorporates by reference paragraphs 1-1819 as if set forth fully

sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 28. Alma's manufacture, sale, offer for sale, use, and/or importation of the Harmony

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Harmony product. 29. The Accent XL product infringes the `090 patent by virtue of Alma's

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 30. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product. 31. willful. COUNT III INFRINGEMENT OF THE `380 PATENT 32. herein. Thermage incorporates by reference paragraphs 1-1819 as if set forth fully Upon information and belief, Alma's infringing acts have been and continue to be

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33.

The Accent XL product infringes the `380 patent by virtue of Alma's

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 34. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product. 35. willful. COUNT IV INFRINGEMENT OF THE `498 PATENT Upon information and belief, Alma's infringing acts have been and continue to be

36. herein. 37.

Thermage incorporates by reference paragraphs 1-1819 as if set forth fully

The Harmony product infringes the `498 patent by virtue of Alma's manufacture,

sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 38. Alma's manufacture, sale, offer for sale, use, and/or importation of the Harmony

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Harmony product. 39. The Accent XL product infringes the `498 patent by virtue of Alma's

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court.

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40.

Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product. 41. willful. COUNT V INFRINGEMENT OF THE `855 PATENT 42. herein. 43. The Harmony product infringes the `855 patent by virtue of Alma's manufacture, Thermage incorporates by reference paragraphs 1-1819 as if set forth fully Upon information and belief, Alma's infringing acts have been and continue to be

sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 44. Alma's manufacture, sale, offer for sale, use, and/or importation of the Harmony

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Harmony product. 45. The Accent XL product infringes the `855 patent by virtue of Alma's

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 46. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product. 47. willful. Upon information and belief, Alma's infringing acts have been and continue to be

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COUNT VI INFRINGEMENT OF THE `1753 PATENT 48. herein. 49. The Harmony product infringes the `1753 patent by virtue of Alma's Thermage incorporates by reference paragraphs 1-1819 as if set forth fully

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 50. Alma's manufacture, sale, offer for sale, use, and/or importation of the Harmony

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Harmony product. 51. The Accent XL product infringes the `1753 patent by virtue of Alma's

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 52. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product. 53. willful. COUNT VII INFRINGEMENT OF THE `5753 PATENT 54. herein. Thermage incorporates by reference paragraphs 1-1819 as if set forth fully Upon information and belief, Alma's infringing acts have been and continue to be

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55.

The Harmony product infringes the `5753 patent by virtue of Alma's

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 56. Alma's manufacture, sale, offer for sale, use, and/or importation of the Harmony

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Harmony product. 57. The Accent XL product infringes the `5753 patent by virtue of Alma's

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 58. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product. 59. willful. COUNT VIII INFRINGEMENT OF THE `836 PATENT 60. herein. 61. The Accent XL product infringes the `836 patent by virtue of Alma's Thermage incorporates by reference paragraphs 1-1819 as if set forth fully Upon information and belief, Alma's infringing acts have been and continue to be

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 62. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product.

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63. willful.

Upon information and belief, Alma's infringing acts have been and continue to be

COUNT IX INFRINGEMENT OF THE `436 PATENT 64. herein. 65. The Accent XL product infringes the `436 patent by virtue of Alma's Thermage incorporates by reference paragraphs 1-1819 as if set forth fully

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 66. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product. 67. willful. COUNT X INFRINGEMENT OF THE `230 PATENT 68. herein. 69. The Accent XL product infringes the `230 patent by virtue of Alma's Thermage incorporates by reference paragraphs 1-1819 as if set forth fully Upon information and belief, Alma's infringing acts have been and continue to be

manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 70. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product.

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71. willful.

Upon information and belief, Alma's infringing acts have been and continue to be

COUNT XI INFRINGEMENT OF THE `675 PATENT 72. 73. Thermage incorporates by reference paragraphs 1-19 as if set forth fully herein. The Accent XL product infringes claims 1 and 2 of the `675 patent by virtue of

Alma's manufacture, sale, offer for sale, use, or importation of it. Alma will continue such infringing acts unless enjoined by this Court. 74. Alma's manufacture, sale, offer for sale, use, and/or importation of the Accent XL

product has resulted in damage to Thermage and such damage will continue so long as Alma manufactures, sells, offers for sale, uses, and/or imports the Accent XL product. 75. willful. PRAYER FOR RELIEF WHEREFORE, defendant Thermage prayprays for relief against plaintiff Alma as follows: A. That judgment be entered that Alma has been and is infringing U.S. Patent Nos. Upon information and belief, Alma's infringing acts have been and continue to be

6,749,624; 6,405,090; 6,387,380; 6,381,498; 6,377,855; 6,241,753; 5,755,753; 5,660,836; 7,229,436; and 7,189,230; and 7,267,675 and that the infringement be found willful; B. That Alma, its agents, sales representatives, servants and employees, associates,

attorneys, successors and assigns, and any and all persons or entities acting by, through, under or in active concert or in participation with it, be enjoined and restrained preliminarily during the pendency of this action, and thereafter permanently, from further acts of infringement of U.S.

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Patent Nos. 6,749,624; 6,405,090; 6,387,380; 6,381,498; 6,377,855; 6,241,753; 5,755,753; 5,660,836; 7,229,436; and 7,189,230; and 7,267,675; C. That a judgment be entered that Alma be required to pay over to Thermage all

damages sustained by themThermage due to such patent infringement and that such damages be trebled pursuant to 35 U.S.C. § 284 for the willful acts of infringement complained of herein; D. That this case be adjudged and decreed exceptional under 35 U.S.C. § 285

entitling Thermage to an award of its reasonable attorney fees and that such reasonable attorney fees be awarded; E. F. That Thermage be awarded its costs and prejudgment interest on all damages; That Alma be required to file with the Court within thirty (30) days after entry of

the final judgment of this case a written statement under oath setting forth in detail the manner in which they have complied with the judgment; and G. and proper. JURY DEMAND Pursuant to Rule 38 of the Federal Rules of Civil Procedure, plaintiff Thermage demands a trial by jury. That Thermage be awarded such other and further relief as the Court deems just

YOUNG CONAWAY STARGATT & TAYLOR LLP

June 20 December ____, 2007

________________________________________ Josy W. Ingersoll (No. 1088) [[email protected]] Karen L. Pascale (# 2903) [[email protected]] Adam W. Poff (No. 3990) [[email protected]] The Brandywine Building 1000 West St., 17th Floor P.O. Box 391

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Wilmington, Delaware 19899-0391 Telephone: 302-571-6600 - and WOOD, HERRON & EVANS LLP J. Robert Chambers P. Andrew Blatt John P. Davis 2700 Carew Tower 441 Vine Street Cincinnati, Ohio 45202-2917 Telephone: (513) 241-2324 Facsimile: (513) 241-6234 Attorneys for Defendant, Thermage, Inc.

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