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

Case 1:06-cv—OOOO2-Gl\/IS Document 11-14 Filed O2/14/2006 Page 1 of 3
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
)
ANGIODYNAMICS, INC., )
)
Plaintifi )
) Civil Action No. 06-002 (GMS)
v. g
DIOMED HOLDINGS, INC., )
)
Defendant. )
)
DECLARATION OF WILLIAM M. APPLIING
IN SUPPORT OF ANGIODYNAMICS, INC.'S
ANSWER TO DIOMED HOLDINGS, INC.'S
MOTION TO DISMISS
l, William M. Appling, declare as follows:
1. I am currently the Vice President of Research and Development of
AngioDynamics, Inc. ("AngioDynamics") and have been employed by AngioDynamics or its
predecessor, E-Z—Em, Incorporated, since l988. The facts set forth herein are personally known
to me and if called upon to testify under oath, I could do so competently. I submit this
Declaration in support of AngioDynamics, Inc.’s Answer To Diomed Holdings, lnc.’s Motion To
Dismiss.
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cwn. Acrnon No. 06-002 (cms)

Case 1 :06-cv—OOOO2-GIVIS Document 11-14 Filed O2/14/2006 Page 2 of 3
2. AngioDynamics manufactures and sells medical device products for the
interventional treatment of peripheral vascular disease, including angiographic catheters and
accessories, hemodialysis catheters and accessories, vascular access products and other venous
products. One such product is the VenaCureTM Laser Vein Treatment kit (the "VenaCure"M kit"
or "VenaCureTM").
3. VenaCureTM is intended for use in vascular therapy and for thc endovascular laser
treatment of varicose veins. VenaCureTM was first introduced to the marketplace in 2002 as the
ELVSTM endovascular laser venous system. On or about August 5, 2004, AngioDynamics
changed the name of its ELVSTM endovascular laser venous system to VenaCure"M. With the
exception of details ofthe delivery sheath, the newly named VenaCureTM was the same as the
ELVSTM cndovascular laser venous system.
4. The VenaCure“" kit includes an introducer sheath intended to be inserted into a
human vein to be treated and through which an optical tiber is intended to be inserted. The
optical fiber is to be used for transmitting laser energy to be used to effect the desired treatment
of the vein. This type of treatment is generally referred to as endovascular, or endovenous, laser
treatment. The current version of the VenaCure"M sheath is provided with visible spaced
markings on its outer surface. The markings may be used by the physician to achieve a more
accurate pul1~back rate.
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Case 1 :06-cv—OOOO2-GIVIS Document 11-14 Filed O2/14/2006 Page 3 of 3
5. On January 6, 2004 Diomed, Inc. filed a patent infringement law suit against
AngioDynamics in the Federal District Court for the District of Massachusetts (the "B0st0n
Suit"). In the Boston Suit Diomed asserts that the making, using, offering to sell and selling of
VenaCure"M constitutes infringement of its U.S. patent 6,398,777 (the “Boston patent"). The
Boston Suit is currently being vigorously litigated.
6. At no time has Diomed, Inc. offered to settle or to license AngioDynamics under
their Boston patent.
7. At no time has Diomed, Inc. offered to license to AngioDynamics either U.S.
patent 6,981,971 or U.S. patent 6,986,766 or either of the applications that led to these two
patents.
I declare under penalty of perjury under the laws of the United States of America and on
the basis of personal knowledge that the foregoing is true and correct and that this declaration
was executed in Qucensbury, New York on the date indicated below.
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I Dated:2i}'lO6
William I ling
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