Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:O6—cv—OOOO2-GI\/IS Document 11-5 Filed O2/14/2006 Page 1 014

Casle 1:06-c]5aOO092-Gl\/IS Document 11-5 Filed 02/14/2006 Page 2 of 4
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,,;Q1»fh;*Y{;,3.'i,11Q§Q111;}. 1_i i1;1_.;,11 _, P O 1 Markman Ruling Strengthens Diomed Patent Position Q
ANDOVER, MA, April 13, 2005, ——— Diomed Holdings, Inc. (AMEX: E
'A ’`i`` DIO — News), a leading developer and marketer of minimally { °
AA A ’s‘~’i ’’’°’n’ 1 *>“*’‘ i it /*)’i i fififgibjiifjij*jj?fjAjiifi} invasive medical technologies, including its patented Endovenous §
i 1 }NVEST·¤·R'FAQ$ i»‘1 '' ° Laser Treatment (EVLT®) for varicose veins, today reported that
VA A A ‘ '· `AA· “ the honorable Judge Richard G. Stearns issued his Memorandum l
NEWS and Order on Claims Construction in Diomed`s patent infringement
case against its competitors AndioDynamics and Vascular Solutions,
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[W5.; ....`. Q l’111 1.1.”1 .i1 .11i , 1 ’... i.. "In Markman hearings such as these, judges provide clarification g
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i gx/_1 ·1: 1t ’ and interpretations of patent claims in order to provide the jury a
lAi.s if {I`"$;,[;Qi%*,]@1e{;_ti‘g ’11_ Q _»i`’ 1f yardstick against which to measure an infringer's conduct/’ stated
” ' ° .'''' 1, d»i` 1_`'` James A. Wylie, President and Chief Executive Officer at Diomed
y 1 Holdings, Inc. "We are pleased with Judge Stearns‘ ruling. Taken E
l Q A V, together with the evidence that has been discovered during the
vf l,’‘y’ 1 1 VA; litigation process, this ruling further strengthens our ability to E
` _ V enforce the ‘777 patent against infringement by our competitors." g
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A D A siil ‘»”·QV¥*¥*Y 'Ai.‘ "iYa¥’»i—~f¢’AE11f1饰’ IIn January 2004 Diomed commenced legal action in the United l
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A»,?;f[ii'j'[1{;gyV5gNA;4g§ States Federal District Court for the District of Massachusetts
’%’'A l;AiY?TiAifW `V.1i `·V. A against AngioDynamics, Inc. seeking injunctive relief and damages .
iV/» 1. 11 » 1A111 for infringement of Diomed's United States Patent Number
gin-sl /°1` L ly 6,398,777 covering the endovascular laser treatment of varicose
{ Ayyl I Vi‘‘li 1 ,iiVil ‘1’,‘,‘‘’`‘ [‘,’ j j {‘,‘‘:‘ j` ,‘‘‘‘ j _·»AAA'` s veins. Diomed 3CClUii'€d exclusive rights to the patent from the five l
.Q];;·.§.;giTY1 inventors of the procedure in September 2003. Diomed initiated E
>i. i1?1A*ii‘iY*f* ’v1A similar actions against vascular Solutions and two other
competitors later in 2004. Discovery and depositions in the case g
are expected to continue through the second quarter of 2005. {
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"As we have stated in the past, Diomed has made a significant
investment in the commercialization of EVLT® and we fully intend
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Ng`Q%sle€1é2%@—cbi9Q1QQ2-GMS Document 1 1-5 Filed 02/14/2006 Pag,%gC% gfoq,3
to protect our intellectual property against willful and
conduct by individuals or companies that infringe upon Diomed's
legal rights," added Wylie. "We look forward to seeing these cases
to their just conclusion."
The Company declined further comment on the pending action. The
full text of the Judge Stearns‘ Memorandum and Order may be
_ obtained from the court's file in this case.
About Diomed
Diomed develops and commercializes minimally invasive medical
procedures that use its proprietary laser technologies and
disposable products. Diomed focuses on Endovenous Laser
Treatment (EVLT®) for use in varicose vein treatments,
photodynamic therapy (PDT) for use in cancer treatments, and
dental and general surgical applications. The EVLT® procedure and _
the Company's related products were cleared by the United States
FDA in January of 2002. Along with lasers and single-use procedure
kits for EVLT®, the Company provides its customers with state of
the art physician training and practice development support.
Additional information is available on the Company's website:
www.diomedinc.com or www.evlt.com. A
EVLT® is a registered trademark of Diomed Inc.
Safe Harbor statements under the Private Securities Litigation
Reform Act of 1995: Statements in this news release looking
forward in time involve risks and uncertainties, including the risks
associated with trends in the products markets, reliance on third
party distributors in various countries outside the United States,
reoccurring orders under OEM contracts, market acceptance risks,
technical development risks and other risk factors. These `
statements relate to our future plans, objectives, expectations and
intentions. These statements may be identified by the use of words `
such as "may," "will," "should,“ "potential," "expects,"
"anticipates/‘ "intends," "plans," "believes" and similar expressions.
These statements are based on our current beliefs, expectations
and assumptions and are subject to a number of risks and
uncertainties. Our actual results could differ materially from those
discussed in these statements. Our Annual Report on Form SEC 10-
KSB/A (the "Annual Report") contains a discussion of certain of the
risks and uncertainties that affect our business. We refer you to the
"Risk Factors" on pages 19 through 32 of the Annual Report for a
discussion of certain risks, including those relating to our business
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as a medical device company without a significant operating record l,lV_ [ Tv
and with operating losses, our risks relating to our Y Y1
commercialization of our current and future products and
applications and risks relating to our common stock and its market
value. Diomed disclaims any obligation or duty to update or correct
any of its forward—looking statements.

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