Free Reply to Response to Motion - District Court of Arizona - Arizona

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P.A., LAWYERS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3647

Martin W. Schiffmiller KIRSCHSTEIN, OTTINGER, ISRAEL & SCHIFFMILLER, P.C. 489 Fifth Avenue, 17th Floor New York, New York, 10017 Telephone: (212) 697-3750 James W. Armstrong (No. 009599) SACKS TIERNEY P.A. 4250 North Drinkwater Blvd., 4th Floor Scottsdale, Arizona 85251-3647 Telephone: (480) 425-2600 [email protected] Attorneys for Defendant Del Laboratories, Inc. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Lemelson Medical, Education & Research Foundation, Limited Partnership, No. CIV'00-0661-PHX-HRH Plaintiff, v. Alcon Laboratories, Inc., et al., Defendants. Del Laboratories, Inc., Counterclaimant, v. Lemelson Medical, Education & Research Foundation, Limited Partnership, Counterdefendant. On April 3, 2006, Defendant Del Laboratories, Inc. ("Del") filed the Memorandum and documentation required under LRCiv 54.2(c)-(d) in support of its request for an award of $28,512.51 in attorneys' fees in this recently dismissed patent infringement action pursuant to 35 U.S.C. § 285. In its April 20, 2006 Response to that request, Plaintiff Lemelson Medical, Education & Research Foundation, Limited Partnership
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REPLY IN SUPPORT OF DEFENDANT DEL LABORATORIES, INC.'S MOTION FOR AWARD OF ATTORNEYS' FEES

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("Lemelson") does not dispute that Del is clearly a "prevailing party" within the meaning of Section 285,1 nor does Lemelson contest the reasonableness of any of the fees and related non-taxable expenses itemized in Del's April 3 Memorandum. Instead, Lemelson asserts that Del does not qualify for an award of attorneys' fees under Section 285's "exceptional case" standard. As discussed below, however, given the extraordinary scope and nature of the multiple "mass tort" type lawsuits filed by Lemelson in the District of Arizona, as well as Lemelson's "culpable neglect" and "unreasonable and unjustified" "abuse of the patent system" which led to the invalidation of all thirteen "machine vision" patents at issue in this matter under the equitable doctrine of prosecution laches,2 it is hard to imagine how any case could be more "exceptional" and worthy of redress under Section 285. Lemelson initially contends that "'exceptional' case status for conduct in the prosecution of the patents" is purportedly "limited" to situations in which "the misconduct rose to the level of inequitable conduct," such as "bad faith." Response at 6. Lemelson further asserts that "[p]rosecution laches is distinct from inequitable conduct," but cites no case law for the proposition that prosecution laches can never be the underlying basis for a finding of exceptionality under Section 285. Moreover, the case law Lemelson does cite clearly indicates that "[f]indings of exceptional case have been based on a variety of factors" other than inequitable conduct, including "other misfeasant behavior," Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1481-82 (Fed. Cir. 1998), "or 'some finding of unfairness ... .'" Rohm & Haas Co. v. Crystal Chem. Co., 736 F.2d 688, 693 (Fed. Cir. 1984) (quoting Stevenson v. Sears, Roebuck & Co., 713 F.2d 705, 713 (Fed. Cir. 1983)). Indeed, even the Revlon case (upon which Lemelson

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See Interstate Forging Indus. v. Federal Forge, Inc., 1998 U.S. Dist. LEXIS 8760, at *7-*8 (W.D. Mich. June 8, 1999). See Symbol Technologies, Inc. v. Lemelson Med., Educ. & Research Found. Ltd. P'ship, 301 F.Supp. 2d 1147, 1155-56 (D. Nev. 2004), aff'd, 422 F.3d 1378, 1385-86 (Fed. Cir. 2005).
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principally relies) acknowledges that attorneys' fees may also be awarded under Section 285 "to avoid a gross injustice." Revlon, Inc. v. Carson Products Co., 803 F.2d 676, 679 (Fed. Cir. 1986); see also FieldTurf Int'l, Inc. v. Sprinturt, Inc., 433 F.3d 1366, 1373 (Fed. Cir. 2006) (recognizing "unfairness," "egregious action," or "some similar exceptional circumstance" as a proper basis for Section 285 relief). Other cases have likewise held that "[a] finding of fraud or inequitable conduct during the prosecution of a patent is not necessary to constitute an 'exceptional' case under [35 U.S.C. § 285], as it may be exceptionable for some other reason ... within the discretion of the trial judge." Orthopedic Equip. Co. v. All Orthopedic Appliances, Inc., 707 F.2d 1376, 1384 (Fed. Cir. 1983), cited with approval in Rohm & Haas, 736 F.2d at 693. Thus, for example, as explained in Gilbreth Int'l Corp. v. Lionel Leisure, Inc., "it has ... been held by many courts that bad faith conduct or recklessness will justify an award of attorney's fees" under Section 285. 587 F.Supp. 605, 616 (E.D. Pa. 1983) (emphasis added) (citations omitted); see also Machinery Corp. of Am. v. Gullfiber AB, 774 F.2d 467, 473 (Fed. Cir. 1985) ("gross negligence," including "reckless misconduct," constitutes satisfactory basis for fee award under 35 U.S.C. § 285). explained by the Ninth Circuit: [C]onduct short of fraud and in excess of simple negligence is also an adequate foundation for deciding that a patent action is exceptional. Such conduct is a serious breach of the patentee's duty to the Patent Office. The party who succeeds in invalidating the unlawful patent performs a valuable public service. It is appropriate under such circumstances to reward the prevailing party by giving him attorney's fees for his efforts, and it is equally appropriate to penalize in the same measure the patentee who obtained the patent by his wrongdoing. Monolith Portland Midwest Co. v. Kaiser Aluminum & Chem. Corp., 407 F.2d 288, 294 (9th Cir. 1969), quoted with approval in Gilbreth, 587 F.Supp. at 616-17; see also Eltech Sys. Corp. v. PPG Indus., Inc., 903 F.2d 805, 811 (Fed. Cir. 1990) ("Where, as here, the patentee is manifestly unreasonable in assessing infringement, while continuing to assert infringement in court, an inference is proper of bad faith, whether grounded in or denominated wrongful intent, recklessness, or gross negligence.")
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Moreover, as

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Here, by focusing on its incorrect and overly narrow characterization of the "exceptional case" standard, Lemelson conveniently ignores the core findings of both the trial and appellate courts in the Symbol litigation that Lemelson had intentionally engaged in an extended course of unreasonable, egregious and inequitable behavior by prosecuting its patent applications in a manner that allowed Lemelson to delay the issuance of those patents by decades and greatly expand the scope of the patents to encompass technology that would render a large segment of American businesses putative infringers. Indeed, as expressly determined by the Federal Circuit, Lemelson's "refiling an application solely containing previously-allowed claims for the business purpose of delaying their issuance can be considered an abuse of the patent system." Symbol, 422 F.3d at 1385. The Federal Circuit also upheld the trial court's finding that Lemelson had engaged in "culpable neglect" during its prosecution of the patent applications at issue, and that Lemelson's conduct had an "adverse effect on businesses that were unable to determine what was patented from what was not patented." Id. at 1386. These were among the considerations that led directly to the trial court's holding, affirmed on appeal, that the involved patents were all unenforceable. The Federal Circuit in Symbol further held that the Nevada district court did not abuse its discretion making the factual findings and reaching the legal conclusions that it had -- on the contrary, the trial court had "thoroughly examined the facts and the equities, and it exercised its discretion reasonably." 422 F.3d at 1386. Among the key findings of the Nevada court in its 2004 decision invalidating Lemelson's patents was that the evidence developed during trial "strongly supported" the following combination of factors asserted by the Plaintiffs in support of their prosecution laches claim: (1) Mr. Lemelson's original disclosures were made public in the 1960's and those patents expired by the 1980's; (2) before the asserted claims were filed numerous articles and patents describing machine vision and bar code scanning were published, and commercial products were developed and marketed; (3) Mr. Lemelson was aware of the developments in the machine vision and bar code fields, and yet he still waited; (4) Mr. Lemelson systematically extended the pendency of his applications by sitting on his rights, and sequentially filing one application at a time so that he could maintain co-pendency while waiting for viable commercial systems to be designed and marketed;
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and (5) Mr. Lemelson (and his new counsel [including those who filed the Arizona lawsuits]) then drafted and prosecuted hundreds of new claims in the late 1980's and 1990's specifically worded to cover those commercial systems. 301 F.Supp.2d at 1156 (emphasis added). The district court in Symbol also concluded that Mr. Lemelson's extension of his patent monopoly for "nearly forty years" through this systematic abuse of the patent prosecution process was "precisely the type of prejudice to the public which the equitable doctrine of prosecution laches is designed to guard against." Id. at 1157. The Federal Circuit once again agreed, finding that Lemelson's behavior clearly qualified as one of the "egregious cases of misuse of the statutory patent system" to which the doctrine should be applied. 422 F.3d at 1385. In short, the patent infringement actions brought by Lemelson in Arizona against Del and the other 500+ defendant businesses were grounded in their entirety on culpable and inequitable conduct; i.e., the deceptive and manipulative manner in which the Lemelson patents were prosecuted in the Patent and Trademark Office. Under these circumstances, it is clear that the test of exceptionality under 35 U.S.C. § 285 has been met. Lemelson nevertheless further argues that it did not commence or prosecute this lawsuit in "bad faith," purportedly because it had no reason to believe that the prosecution laches defense could be applied to the type of continuation practice engaged in by Mr. Lemelson following the 1952 enactment of Sections 120 and 121 of the patent statutes. As explained by the district court in Symbol, however, "[t]he defense of

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prosecution laches was first recognized in the patent context nearly 150 years ago in Kendall v. Winsor, 62 U.S. 322 ... (1858)," which "held that a person 'may forfeit his rights as an inventor by a willful or negligent postponement of his claims, or by an attempt to withhold the benefits of his improvement from the public until a similar or the same improvement should have been made and introduced to others.'" Symbol, 301 F.Supp. 2d at 1154 (emphasis added). -5-

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Moreover, after similarly discussing the long history of prosecution laches in its first Symbol opinion, the Federal Circuit had no trouble rejecting all three reasons proffered by Lemelson for the doctrine's unavailability in this case. See Symbol

Technologies, Inc. v. Lemelson Med., Educ. & Research Found., Ltd. P'ship, 277 F.3d 1361 (Fed. Cir. 2002). Specifically, the court first found "no support" for Lemelson's argument that prosecution laches had been limited to claims arising out of interference proceedings. Id. at 1365. Second, the court found "nothing" in the legislative history of the 1952 Patent Act to suggest that Congress did not intend to carry forward the defense of prosecution laches after its codification of the previous common law of continuation practice. Id. at 1366. Instead, the Federal Circuit reasoned that, "[t]o the contrary, a careful reading of the history and commentary on the 1952 Act shows an intent to maintain the defense." Lastly, the Symbol court flatly rejected Lemelson's contention that it was bound by the same two unpublished, non-precedential Federal Circuit decisions that Lemelson again relies upon here in its instant Response. 277 F.3d at 1366-68. In arguing that it did not institute or prosecute the present suit in "bath faith," moreover, Lemelson is focusing narrowly on its subjective belief that the infringement claims on its issued patents could be sustained on the merits. Lemelson thus disregards the thrust of the trial and appellate court findings in Symbol that all of the Lemelson patents at issue were prosecuted in a manner rife with bad faith and with the intention of securing excessively broad statutory monopolies in order to reap unwarranted royalty payments from companies who would have difficulty practicing conventional technologies without becoming ensnared in Lemelson's cunningly designed web of patents. The key finding of the Symbol courts was that Lemelson was never entitled to the patents that issued, and those patents would not have issued in the forms and at the times they did had Lemelson dealt fairly and equitably with the Patent Office and with the public over the course of several decades. Indeed, the Federal Circuit emphasized that "the doctrine of prosecution laches is an equitable defense," 422 F.3d at 1384, and Lemelson's conduct ran afoul of equity. That Lemelson claims to have had a "good faith"
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belief at the time it sued on those patents that it could convince this Court to sustain its infringement claims on the merits and/or that it could pressure the defendants into settling and taking licenses rather than risking huge liability does not detract from the exceptional nature of this case. Furthermore, as Lemelson notes in its Response, courts have routinely found patent cases exceptional for purposes of awarding fees when the patent sued upon was secured through "inequitable conduct," e.g., where the patent applicant willfully failed to disclose material information to the Patent Office which, had it been disclosed, might have precluded the issuance of the patent. It is submitted that, based on this wellaccepted principle, the present case is certainly exceptional. Had Lemelson not engaged in the egregious misconduct described by the Symbol courts during the prosecution of the patents it sued upon here, those patents either would never have issued, would have issued and expired before the defendants committed the acts alleged to have infringed the patents, or would have issued with claims that would not have sustained any infringement charges against the defendants. Lemelson's patents were, therefore, as much the product of "inequitable conduct" as any patents that are issued after material prior art is concealed by the applicants from the Patent Office. Finding that this case is "exceptional" within the meaning of 35 U.S.C. § 285 is clearly appropriate under these circumstances. For all of the reasons discussed above and in its April 3 Memorandum, Del therefore respectfully requests that it be awarded all of the attorneys' fees it has been forced to incur as a result of Lemelson's culpable and unfair manipulation of the patent system, upon which all of its dismissed claims of infringement were based. DATED this 8th day of May, 2006.

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SACKS TIERNEY P.A.
By: s/ James W. Armstrong

Attorneys for Defendant Del Laboratories, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on May 8, 2006, a complete, duplicate copy of this document was forwarded directly to Judge Holland by Priority Mail, at the following address: Judge H. Russell Holland United States District Court 222 West 7th Avenue, Unit 54 Anchorage, Alaska 99513 s/ James W. Armstrong

I further certify that on May 8, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CMECF registrants:

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Louis J. Hoffman, Esq. Hoffman & Zur 14614 North Kierland Boulevard, Suite 300 Scottsdale, AZ 85254 Email: [email protected] Attorneys For Plaintiff Lemelson Victoria Gruver Curtin, Esq. Victoria Gruver Curtin PLC 14614 North Kierland Boulevard, Suite 300 Scottsdale, AZ 85244 Email: [email protected] Attorneys For Plaintiff Lemelson Peter C. Warner, Esq. Peter C. Warner PC 1723 West. 4th Street Tempe, AZ 85281-2404 Email: [email protected] Attorney For Plaintiff Lemelson Mark A. Nadeau, Esq. Squire Sanders & Dempsey , LLP Two Renaissance Square 40 N. Central Avenue, Suite 2700 Phoenix, AZ 85004-4441 Email: [email protected] [email protected] Attorneys For Defendants Campbell Soup, Hershey, Tyson, Lee Corporation, Hormel, IBP, Dean Foods, Lorillard, Gilster-Mary Lee and McCormick

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Jonathan M. James, Esq. Perkins Coie Brown & Bain PA 2901 North Central Ave. P.O. Box 400 Phoenix, AZ 85001-0400 Email: [email protected] Attorneys For Defendants Allied Domecq, Ocean Spray and Dole Food Company Doug Seitz, Esq. Snell & Wilmer L.L.P. One Arizona Center 400 East Van Buren Phoenix, AZ 85004-2202 Email: [email protected] Attorneys For Defendant WLR Foods Robert A. Schroeder, Esq. Gary D. Lueck, Esq. Bingham, McCutchen, LLP 355 South Grand Ave., Suite 4400 Los Angeles, CA 90071 Attorneys for Defendants ConAgra, Inc. and Sunkist Growers, Inc. David Berten, Esq. Competition Law Group 120 South State Street, Suite 300 Chicago, Illinois 60603 Attorneys for Defendant Del Monte Foods Charles Bradley, Esq. Attorney at Law 33 Mt. Green Road Croton-on-Hudson, New York 10520 Attorneys for Defendants Alcon Laboratories, Inc. and Nestle USA, Inc. John W. Kozak, Esq. David M. Airan, Esq. Leydig, Voit & Mayer Two Prudential Plaza, Suite 4900 Chicago, Illinois 60601-6780 Attorneys for Defendants Frito-Lay and Pepsico Michael J. O'Connor, Esq. Jennings, Strouss & Salmon The Collier Center, 11Floor 201 East Washington Street Phoenix, AZ 85004-2385 Attorneys for Defendant Anheuser-Busch Companies James R. Higgins, Esq. John F. Salazar, Esq. Middleton & Reutlinger, PSC 401 South 4th Avenue, Suite 2500 Louisville, Kentucky 40202-3410 Attorneys for Defendants Brown & Williamson Tobacco Company and H.J. Heinz
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James F. Polese, Esq. Polese, Pietzsch, Williams & Nolan, PA 2702 North Third Street, Suite 3000 Phoenix, Arizona 85004-4607 Attorneys for Keystone Foods Corp. Charles W. Wirken, Esq. Gust Rosenfield, PLC 201 W. Washington, Suite 800 Phoenix, AZ 85004 Attorneys for Defendant Cargill Steven M. Weinberg, Esq. Weinberg Legal Group Biltmore Financial Center 2390 E. Camelback Road, Suite 250 Phoenix, AZ 85016 Attorneys for Defendant Seneca Foods Don Bivens, Esq. Michael Ross, Esq. Meyer, Hendricks & Bivens 3003 North Central Ave., Suite 1200 Phoenix, AZ 85012-2915 Attorneys for Defendants Amway Corporation and Glaxo Stephen T. Sullivan, Esq. Tish L. Berard, Esq. Sullivan Law Group 1850 North Central Ave., Suite 1140 Phoenix, AZ 85004 Attorneys for Defendant Golden Peanut
s/ James W. Armstrong

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I hereby further certify that on May 8, 2006, I served the attached document by U.S. mail, postage prepaid, on the following, who are not registered participants of the CM/ECF System: James B Bear Knobbe Martens Olson & Bear LLP 2040 Main St 14th Floor Irvine, CA 92614 Tish L Berard Sullivan Law Group 1850 N Central Ave Ste 1140 Phoenix, AZ 85004-4586 Case 2:00-cv-00661-HRH Document 542

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David K Callahan Kirkland & Ellis 200 E Randolph Dr Ste 5800 Chicago, IL 60601 Annamarie A Daley Robins Kaplan Miller & Ciresi LLP 2800 LaSalle Plaza 800 LaSalle Ave Minneapolis, MN 55402-2015 Albert E Fey Fish & Neave 1251 Ave of the Americas New York, NY 10020 Christopher T Griffith Leydig Voit & Mayer Ltd 2 Prudential Plaza Ste 4900 Chicago, IL 60601-6780 Roy E Hofer Brinks Hofer Gilson & Lione 455 N Cityfront Plaza Dr Ste 3600 NBC Tower Chicago, IL 60611-5599 Jesse J Jenner Fish & Neave 1251 Ave of the Americas New York, NY 10020 Joseph P Lavelle Howrey Simon Arnold & White LLP 1299 Pennsylvania Ave NW Washington, DC 20004-2402 Gary D Lueck Bingham McCutchen LLP 355 S Grand Ave Ste 4400 Los Angeles, CA 90071

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Laura C Miller Howrey Simon Arnold & White LLP 1299 Pennsylvania Ave NW Washington, DC 20004-2402 Peter E Moll Howrey Simon Arnold & White LLP 1299 Pennsylvania Ave NW Washington, DC 20004-2402 Wesley O Mueller Leydig Voit & Mayer Ltd 2 Prudential Plaza Ste 4900 Chicago, IL 60601-6780 Charles Quinn Fish & Neave 1251 Ave of the Americas New York, NY 10020 Ann G Robinson Frost Brown Todd LLC 2200 PNC Ctr 201 E 5th St Cincinnati, OH 45202 Kevin M Rose Wharton Aldhizer & Weaver PLC 100 S Mason St Harrisonburg, VA 22801 John F Salazar Middleton & Reutlinger PSC 401 S 4th Ave Ste 2500 Louisville, KY 40202-3410 Gustavo Siller, Jr Brinks Hofer Gilson & Lione 455 N Cityfront Plaza Dr Ste 3600 NBC Tower Chicago, IL 60611-5599 Regis E Slutter Burns Doane Swecker & Mathis LLP PO Box 1404 Alexandria, VA 22313-1404 Case 2:00-cv-00661-HRH Document 542

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Kevin S Sprecher Frost Brown Todd LLC 2200 PNC Ctr 201 E 5th St Cincinnati, OH 45202 Jay Todd Stewart Perkins Coie Brown & Bain PA PO Box 400 Phoenix, AZ 85001-0400 Paul A Stewart Knobbe Martens Olson & Bear LLP 2040 Main St 14th Floor Irvine, CA 92614 Stephen P Swinton Cooley Godward LLP 4401 Eastgate Mall San Diego, CA 92121-1909 William M Wesley McAndrews Held & Malloy Ltd 500 W Madison St Ste 3400 Chicago, IL 60661 Christopher C Winslade McAndrews Held & Malloy Ltd 500 W Madison St Ste 3400 Chicago, IL 60661 Eric C Woglom Fish & Neave 1251 Ave of the Americas New York, NY 10020

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s/ James W. Armstrong
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