Free Response to Motion - District Court of Arizona - Arizona

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Ira M. Schwartz (I.D. No. 010448) Michael A. Cordier (I.D. No. 014378) DeCONCINI McDONALD YETWIN & LACY, P.C. 7310 N. 16th Street, Suite 330 Phoenix, Arizona 85020 Telephone (602) 282-0500 Facsimile (602) 282-0520
Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA

DECONCINI MCDONALD YETWIN & LACY, P.C.

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16th Street, Suite 330 Phoenix, Arizona 85020

Erchonia Medical Inc., et al Plaintiff, v. Miki Smith, et al Defendants. ____________________________________ Erchonia Medical Inc., et al Plaintiff, v. Miki Smith, et al Defendants. ____________________________________ Robert E. Moroney, LLC Plaintiff, v. Erchonia Medical, Inc., et al Defendants.

Case No.:CIV 02-2036-PHX-MHM Consolidated with CIV 02-2048-PHX-MHM and CIV 02-2353-PHX-MHM

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ERCHONIA MEDICAL INC. AND KEVIN TUCEK'S RESPONSE TO ROBERT MORONEY'S AND ROBERT E. MORONEY, LLC'S CONSOLIDATED MOTION FOR SUMMARY JUDGEMENT RE INFRINGEMENT OF U.S. PATENT NO. 6,013,096

Case 2:02-cv-02036-MHM

Document 339

Filed 08/04/2006

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Erchonia Medical Inc. and Kevin Tucek

(collectively referred to as

"Erchonia") oppose Robert Moroney's and Robert E. Moroney, LLC's Consolidated Motion for Summary Judgment of Non-Infringement of U.S. Patent No. 6,013,096

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("REM's Motion for Summary Judgment"). When the Court considers all the direct and
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circumstantial evidence from which a jury could find that Defendants Robert Moroney and
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Robert E. Moroney, LLC (collectively referred to as "REM") have infringed U.S. Patent
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No. 6,103,096, owned by Erchonia, it must deny REM's Motion for Summary Judgment.
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DECONCINI MCDONALD YETWIN & LACY, P.C.

I.
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Background Facts A. Erchonia's Relationship with REM. Erchonia, through it predecessor companies, Tuco Innovations, Inc. and

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Majes-Tec Innovations, Inc., has been in the business of manufacturing and selling therapeutic laser devices since 1996. (Erchonia's Statement of Facts (ESOF) at ¶ 5). Erchonia's relationship with Robert Moroney began in the spring of 2001. ESOF at ¶ 6. They first met at a trade show where Mr. Moroney was distributing a footbath ionization product known as the BEFE and where Erchonia's predecessor was demonstrating its laser products. ESOF ¶ 7. At this show, Mr. Moroney approached Erchonia about the possibility of Erchonia manufacturing a footbath product for Moroney to distribute in place of the footbath product he was then distributing. Shortly thereafter, REM began distributing the footbath product manufactured by Tuco. ESOF ¶ 8-9. In the spring of 2002, problems developed in the business relationship between REM and Erchonia and soon after, REM's distribution of Erchonia's footbath products terminated. ESOF ¶10. During the term of their business relationship, REM never

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distributed Erchonia's laser products. In July 2002, Erchonia's Vice President of Sales, Miki Smith, gave notice to Erchonia that he was leaving. ESOF ¶ 11. At almost the exact same time, Dr. George Gonzalez, a long time contractor for Erchonia who was involved in doing seminars for Erchonia where its products were sold, also terminated his relationship. ESOF ¶ 12. 2
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At the same time Erchonia learned that both of these people were leaving, Erchonia also learned that they were both going to work for REM and were to be actively involved in the sale of REM's new laser products. ESOF ¶ 13.

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Upon further investigation of the facts surrounding the departure of Miki
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Smith and George Gonzalez, Erchonia learned that both of them had been displaying and
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promoting the sale of REM's new laser products while they were still working for
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Erchonia. ESOF ¶ 13-14. Their activities further included displaying and using prototype
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DECONCINI MCDONALD YETWIN & LACY, P.C.

"Quantum IV Lasers" at trade shows they attended on behalf of Erchonia. ESOF ¶ 14.
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B.
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Erchonia's Development of its Laser Products

Kevin Tucek, while working for Erchonia's predecessor developed
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Erchonia's first laser products. Upon developing this product, Mr. Tucek filed a patent application for this product. This patent was eventually issued as the `096 Patent, which was issued on January 11, 2000. ESOF ¶ 1. Erchonia's product became the first laser to obtain FDA market approval in its class. ESOF ¶ 3. C. The Quantum IV Laser

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The Quantum IV Laser sold by REM was manufactured by Flitton Engineers of Bedfordshire, England. ESOF ¶ 15-16. According to Mr. DeAngelis, he began

manufacturing this product in the fall of 2001. ESOF ¶ 17-19. It is clear, however, that the design of the Quantum IV laser changed in certain respects at least up until the fall of 2002. ESOF ¶ 19-21. It is further clear that Flitton experimented with various types of laser diodes for use in these laser products. ESOF ¶ 27. Flitton generally ordered its laser diodes from a company in the United States named Diode Laser Concepts, Inc. ESOF ¶ 28. Diode Laser Concepts supplied various types of laser diodes in various configurations to Flitton for use in the Quantum Laser. ESOF ¶ 29. These diodes included model numbers: FNY-RL3-19; FAT-MS3-50; FAY-MS3-50; FAY-FE3-50. ESOF ¶ 29. While some of these laser

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diodes contained only a collimating lens; others contained a collimating lens and a rod lens, which is described as being a line generator. ESOF ¶ 30. Miki Smith has testified that the unit he demonstrated at one show in New Orleans,

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for the benefit of REM, was a prototype unit, which was similar in most respects to the
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manufactured units later sold by REM, but with at least a few differences. ESOF ¶ 31.
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These differences included the lack of a key lock on the prototype, and possibly a different
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size head on the wand attached to the unit. ESOF ¶ 32. In most other respects, this unit
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DECONCINI MCDONALD YETWIN & LACY, P.C.

was similar to the manufactured units. ESOF ¶ 32.
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Erchonia has reviewed one of the Quantum IV Lasers it obtained from a customer,
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and Erchonia has reviewed one additional Quantum IV Laser unit. The Quantum IV Laser
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contains the following features: (i) the unit is a hand-held laser light generator device for use in medical therapy. ESOF ¶ 34. (ii) the unit has a wand with an interior cavity and which is capable of being retained in the hand of a user. ESOF ¶ 35. (iii) the wand contains a means for generating a beam of laser light and that the wand is freely movable. ESOF ¶ 35. (iv) the unit has a housing defining an interior chamber and having an exterior. ESOF ¶ 37. (v) that a battery is mounted in the interior chamber of the housing. ESOF ¶ 38. (vi) the unit has an electrical cord connecting the battery to the laser diode in the wand. ESOF ¶ 41. The above facts appear to be undisputed. II. Areas of Dispute.

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In reviewing REM's Motion for Summary Judgment, they have identified the following areas of dispute:

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A.

Does the Quantum IV Laser have an "Optical Arrangement" which receives

a beam of laser light and "transforms" the received beam into a "substantially planar" beam?

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B.
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Is the Laser Diode Module mounted in the Interior Chamber of the Wand? Does the Quantum IV Laser have a "Means for Controlling a Period of

C.
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Time"?
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III.
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Standards for Summary Judgment

DECONCINI MCDONALD YETWIN & LACY, P.C.

Summary judgment is appropriate only if the moving party proves that there are no
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genuine issues of material fact and it is entitled to judgment as a matter of law. C.R. Bard,
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Inc. v. Advanced Cardiovascular Systems, Inc. 911 F.2d 670, 672 (Fed. Cir. 1990);
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Leggett & Platt, Inc. v. Hickory Springs Mfg. Co., 285 F.3d 1353, 1360 (Fed. Cir. 2002). In making a determination on a motion for summary judgment, the Court is required to view the evidence presented in the light most favorable to the non-moving party. Further, the non-moving party is entitled to all reasonable inference from the facts. C.R. Bard, 911 F.2d 670, 672; Toro Co. v. White Consol. Indus. Inc., 266 F.3d 1367, 1372 (Fed. Cir. 2001). Only if no reasonable jury could find in favor of the party opposing summary judgment, is a grant of summary judgment appropriate. C.R. Bard, 911 F.2d at 672; It must be remembered that the question of whether two structures are equivalent is a question of fact for the jury. Leggett & Platt, 285 F. 3d at 1359. As long as there are any facts to support a finding of equivalents, the question must be resolved by the jury and summary judgment is inappropriate. Id. While the question of equivalents under 35 U.S.C.§112 (6) is a slightly different question than equivalence under the Doctrine of Equivalents, the standards for both are closely similar and infringement by statutory equivalents is also a question of fact for the jury to determine. Odetics Inc. v. Storage Technology Corp., 185 F.3d 1259, 1268 (Fed. Cir. 1999); C.R. Bard, Inc. v. M3 Sys. Inc., 157 F.3d 1340, 1363 (Fed. Cir. 1998) cert denied 119 S. Ct. 1804 (1999); In Re Hayes 5
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Microcomputer Prods. Inc. Patent Litig., 982 F.2d 1527, 1541 (Fed. Cir. 1992); Intel Corp. v. United States Int'l Trade Com'n, 946 F.2d 821, 841 (Fed. Cir. 1991); IMS Technology Inc. v. Haas Automation Inc. 206 F.3d 1422, 1431 (Fed. Cir. 2000).

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The Federal Circuit has cautioned on several occasions that an analysis of questions
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of equivalents is typically an intensely factual inquiry. Toro Co., 266 F. 3d at 1370. As
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such, a ruling of summary judgment of non-infringement on a question of doctrine
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equivalents or statutory equivalents under 35 U.S.C. §112 ¶6, should be made cautiously
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DECONCINI MCDONALD YETWIN & LACY, P.C.

and only when it is clear that no reasonable jury could find infringement. Leggett & Platt,
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285 F.3d at 1360.
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IV.
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Analysis and Legal Argument A. An "Optical Arrangement" for receiving a beam of laser light and

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"Transforming" the received beam into a "Substantially Planar Beam" (i) The Prototypes and Some Versions of the Quantum IV Laser

Have a Line Generator Laser Diode. Flitton manufactured Quantum IV Lasers having several versions of laser diodes. 1 Mr. DeAngelis admitted in his deposition that he purchased most of his laser diodes from Diode Laser Concepts. ESOF ¶ 27-28. The earliest invoices from Diode Laser Concepts to Flitton show that in September and the end of October 2001, Flitton purchased line generator laser diodes from Diode Laser Concepts. ESOF ¶ 29. Mr. DeAngelis further testified that he used some of these in prototypes for his Quantum IV Lasers. ESOF ¶ 23. Further, at least one of these units containing a rod lens line generator laser diode was provided to Mr. Neil Bivens and never returned. The deposition testimony further establishes that Mr. Moroney had several discussions with Mr. Bivens about forming a business relationship related to these lasers. ESOF ¶ 23, 24.
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In their Motion, REM notes that Erchonia must prove that the infringing products generate a narrow beam of monochromatic coherent light. However, this is provided as the definition of laser light. Erchonia understands, and abundant deposition testimony makes clear that the Quantum IV Laser uses a laser diode to generate laser light and this is undisputed. As such, Erchonia believes that there is no dispute on this issue.

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In addition, Miki Smith made it clear that the units he had at one point were prototype units. ESOF ¶ 31. It is reasonable to infer from all of the facts established above, that the 2 prototype units obtained by Mr. Moroney and shown by Mr. Smith in

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New Orleans contained these line generator laser diode units.
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Further, a jury could

reasonably conclude that Mr. Moroney at some point obtained a prototype unit from Neil Bivens, which may have been demonstrated in New Orleans or elsewhere. At a minimum,
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there are substantial facts from which a jury could find these units containing the line
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DECONCINI MCDONALD YETWIN & LACY, P.C.

generated lasers were used and demonstrated in the U.S. by REM.
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This fact is further supported by the documents showing the timing of REM's
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acquisition of the prototype units.
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Mr. Smith's testimony indicates that he was in

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possession of the prototypes prior to his departure from Erchonia on July 18, 2002. ESOF ¶ 14. He may have had these units as early as May of 2002. ESOF ¶ 14-15. REM may dispute that they had prototype units instead arguing that they purchased completed manufactured units from Flitton. However, Flitton's first invoice to REM for the purchase of two lasers is dated July 9, 2002. ESOF ¶ 51. The date of this invoice suggests that it does not relate to the prototype units displayed by Miki Smith, but instead relates to a later shipment of manufactured units. A prototype laser containing a line generator laser diode from Diode Laser Concepts includes both a collimating lens and a rod lens. ESOF ¶ 30. Such a

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configuration would fall literally within the definition of an optical arrangement, since it contains two lenses, which transform the beam generated by the laser generating means into a substantially planar beam of light. ESOF ¶ 30. This is precisely what a rod lens does. ESOF ¶ 30. (b) The Manufactured Quantum IV Lasers contain an Optical Arrangement which transforms the laser light into a substantially planar beam. Even the units of the Quantum IV Laser, which include a laser diode module with a collimating lens as its only lens, contain other features that serve as a part of the optical 7
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arrangement. Kevin Tucek performed an analysis of the output beam of a Quantum IV Laser. These are the units which REM asserts include a collimating lens as its only lens. It would be expected that the output of this lens would be elliptical in nature. ESOF ¶ 46.

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Yet the output observed when directed toward a flat surface is a red line segment. This line
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segment does not vary noticeably in its width along the output beam. ESOF ¶ 45. If this
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output were unmodified from the output beam of the laser diode, the width should vary in
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dimension. It does not vary. Further, A Major Difference, Inc., a company owned and
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controlled by Robert Moroney, describes the Quantum laser products as focusing their
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energy in a "very concentrated line." ESOF ¶ 48.
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Specifically, it is probable that this shape is created from the effect of the laser
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diode module TO can or the housing. See ESOF ¶ 50. In this particular case, the module can or housing is used to shape the beam of laser light into a relatively planar beam and is in effect used as an aperture for the laser diode module. The Special Master's Final Report on Claim Construction defined "optical arrangement" as a collection comprising two or more mirrors, lenses, prisms or other optical devices placed in some specified configuration which reflect, refract, dispense, absorb, polarize or otherwise act on light." In this version of the Quantum IV Laser, the can walls serve as an aperture in that they absorb light and otherwise act in a manner to affect the shape of the output beam of light. In this regard, a jury can find that the combination of the collimating lens and the design of the laser module can serve as an optical device or is equivalent to the optical arrangement defined in Patent Claim 1, element (c). Further, as described above, the beam generating device creates a generally elliptical shape, yet the output shape is in the form of a line. This can occur only if the effect of the optical arrangement in the laser diode module transforms the original beam shape from its natural elliptical shape into a substantially planar beam, which appears as a line when shown on a surface.

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Erchonia has reviewed the beams emitted by the Quantum IV Lasers, which it had available to it to test. Kevin Tucek measured the beam size when the unit was turned on. The results of those measurements are 5.83 mm by 1.10 mm at a distance of approximately

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4-6 inches from the surface of a work piece. These measurements indicate that the width
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of the beam is relatively constant along the length of the light emitted. In order to achieve
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this constancy, the beam must be substantially planar when emitted from the laser diode.
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Erchonia notes that REM refers to these beams as being a clipped ellipse. However,
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an ellipse is wider at its center and tapers to its edges. ESOF ¶ 46. The beams emitted
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from the Quantum IV laser fail to have such a taper and in fact are substantially linear in
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cross-section, requiring a substantially planar beam.
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It is generally known that a typical laser diode will generate an elliptical beam from its source, unless modified by some type of optical arrangement. This elliptical beam typically has a 3.5:1 or 4:1 length to width ratio. However, the beam measured by Mr. Tucek had a length to width ratio of 5.1:1, which is different from that generated from the unaltered laser beam generator. ESOF ¶ 47. Therefore, the fact that the measured beam has a different length to width ratio is an indication that the beam has been modified in some manner, i.e. that is has been transformed. It should be noted that the claim term here requires only a "substantially planar" beam. The Special Master was not asked to interpret the term "substantially planar" and this term should be given its usual and customary meaning. In this context "substantially" means only of a generally planar configuration and does not require a perfectly planar beam. Thus the measurements determined by Mr. Tucek indicate a beam that is generally of a linear shape in cross-section. At a minimum, infringement is a question of fact and the question of whether this shape is planar enough is a question of fact for the jury to determine. At a minimum, a jury should be allowed to review the Quantum IV Laser unit in Erchonia's possession, and photographs of a Quantum IV Laser unit, which are submitted 9
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with Erchonia's Statement of Facts to determine whether the Quantum IV Laser has an optical arrangement which receives a beam of laser light and transforms this into a substantially planar beam.

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B.
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Interior Chamber

Claim element 1(b) refers to means mounted in the interior cavity of the wand for generating a beam of laser light. Claim element 1(a) describes the wand as a substantially
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elongated hollow tube with an interior cavity.
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DECONCINI MCDONALD YETWIN & LACY, P.C.

REM attempts to overcome this element by describing the Quantum IV Laser as
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containing a wand as one element with a solid head portion as a second separate element.
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A review of the description of the Quantum IV Laser indicates that what REM refers to as
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the wand head portion is a permanently attached portion to the wand. In essence what REM has done is merely to take Erchonia's one piece wand and manufacture their product with a two piece wand. See ESOF ¶ 40. Case law is clear that a two piece unit may be found equivalent to a one piece unit. Toro Co. v. White Consolidated Indus. Inc., 266 F. 3d 1367, 1370. REM further argues that its wand head piece is a solid unit precluding the finding that it falls within the claim language. However, this is simply not true. First, the head unit has four sections hollowed out to allow the laser diode modules to be mounted inside the hollowed out sections. See ESOF ¶ 39-40, including Tucek Photos. This portion corresponds to the way in which the laser diodes described in the patent are mounted in the hollow cavity of the wand. Further, even if this mounting method is considered slightly different from precise mounting described in the patent, these differences are so insignificant and insubstantial as to be deemed equivalent under 35 U.S.C.§112 ¶6. Certainly, the addition of the wand head piece with the laser diode modules mounted therein, which is positioned to form a portion of the wand, performs precisely the same function, in the same manner and achieves the same result as the precise mounting method described in the `096 Patent. See Odetics Inc. v. Storage Technology Corp., 185 F.3d 10
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1259, 1268; IMS Technology Inc. v. Haas Automation Inc., 206 F.3d 1422, 1431; See also Graver Tank & Mfg. Co. v. Linde Air Products Co. 399 U.S. 605 (1950). REM's reliance on Biagro Western Sales Inc. in not applicable to this analysis.

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Biagro Western Sales Inc. v. Grow More Inc., 423 F.3d 1296, (Fed. Cir. 2005). The
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Biagro Western case was based on an analysis of the limitation of the doctrine of
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equivalents, under the doctrines set forth in Festo. Festo Corp. v. Shoketsu Kinzoku
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Kogyo Kabushiki Co., 535 U.S. 722, 122 S.Ct. 1831, 152 L.Ed.2d 944 (2002). First, it
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should be recalled that Erchonia contends that the Quantum IV Laser mounting
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configuration fall literally within the definition of this claim element as the laser diodes are
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mounted within the wand head portion, which forms an integral part of the wand. Further,
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the laser diodes are mounted within hollow spaces in the head portion, which hollow spaces are designed to receive such laser diode modules. However, even if the Court finds that this configuration is not literally present in the Quantum IV Laser, this configuration falls within the scope of the statutory equivalents of this claim element. Since the Biagro Western case deals with equivalents under the Doctrine of Equivalents and not statutory equivalents, this case does not address the situation in question. Finally, the Biagro Western case is bound to the prescriptions set out in the Festo case. Festo made clear that not all equivalents were surrendered, but only those equivalents that were given up in the prosecution history of the patent. Festo Corp., 535 U.S. at 738. ("Nor is there any call to foreclose claims of equivalence for aspects of the invention that have only a peripheral relation to the reason the amendment was submitted"). Festo provides that the Court should look to the territory surrendered during the prosecution history to determine what equivalents were forgone. Id. In this case, the amendment in question related to the shape of the wand described in claim element 1(a), where the claim was amended to further describe the shape of the wand. However, the issue in this case is not the shape of the wand, but rather the location of the laser beam generating device inside the wand. REM does not argue that its wand is not substantially 11
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elongated. As that is the change that was made during the prosecution history, that is the only application of Festo that would be appropriate with regard to this claim element. C. Means for Controlling a Period of Time

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Element (g) of patent claim 1, recites, "means on said housing for controlling a
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period of time said beam of laser light is generated." The Special Master's Final Report
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analyzed this claim term and instructed that this should be interpreted as requiring an
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electrical timing circuit, a start switch activable between on and off positions and a selector
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DECONCINI MCDONALD YETWIN & LACY, P.C.

knob having multiple time period length settings."
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It is clear that from a brief review of the Quantum IV Laser, and from operation of
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this machine, that it has a system for controlling the period of time the laser light beam is
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generated. ESOF ¶ 42-43. Mr. DeAngelis testified as to how the user can input a time period for the laser light to be operated. ESOF ¶ 43. Further, the key pad unit on the top of the control box has both a start and a stop button. ESOF ¶ 42. The question remains whether the system used by Quantum IV Laser is equivalent to the structure required by the patent. Statutory equivalence under 35 U.S.C. §112 ¶6 can be established by showing that the infringing product performs the identical function in substantially the same way to achieve substantially the same result. See Odetics Inc., 185 F.3d at 1268; IMS Technology Inc., 206 F.3d at 1431. A review of the Quantum IV Laser and the description of how it is used indicates that the Quantum IV Laser allows the user to input a period of time the laser light is generated. ESOF ¶42-43. This is precisely the same function performed by Erchonia's product and claimed in the patent. Indeed, the function is clearly identified by the claim language indicating that the purpose of this element is to control the period of time the laser light is generated. Operating the Quantum IV Laser demonstrate that the machine achieves the identical result as that claimed in the patent, i.e. controlling the period of time the machine operates and then turning off the laser light. The only remaining question is whether this function is achieved in the same way. 12
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In analyzing this question, there are two elements to consider. First, the patent claims a single switch with both an on and off position. A simple look at the Quantum IV Laser indicates that it has both a start switch and a stop switch. ESOF ¶ 42. The purpose

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of a switch is to either turn something on or something off. It is well known to even most
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lay people that a single on/off switch is equivalent to separate on and off switches.
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Certainly, a jury using everyday common sense could reasonably interpret these items to
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be equivalent. See Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp. 149 F.3d 1309, 1318
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(Fed. Cir. 1998) (stating that equivalency may be found even if certain elements are
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combined.)
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Similarly, the use of an analog knob to select time setting is similar in everyday use
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to a variety of either analog or digital selector or input mechanisms. As such, a reasonable jury could interpret these as being equivalent. The use of a selector knob to select a time period is substantially equivalent to the use of a keypad to enter a time period. This is analogous to other areas of art where it is well known to substitute an electronic timer for an equivalent analog timing device. These type of substitutions have been well known for many years preceding the date of the application date of the `096 Patent. See e.g. Texas Instruments Inc. v. U.S. Int'l Trade Com'n, 805 F.2d 1558, 1570 (Fed. Cir. 1986); In Re Bond, 910 F.2d 831 (Fed. Cir. 1990). In making this determination, the Courts have looked at the function performed and result obtained in determining if there is any substantial difference between the accused structure and the structure defined in the patent. Odetics Inc.. 185 F.3d at 1271 (Fed. Cir. 1999) (stating that you need only look at what is necessary to perform the claimed function, and need not look at structure unnecessary to perform the function). In reviewing this issue, the Court in IMS Technology Inc. v. Haas Automation, Inc. instructed that equivalency must be viewed from the point of view of the function performed. 206 F. 3d 1422, 1436. The Court went on to say, "In some cases, an analysis of insubstantial differences in the context of the invention results in a finding of equivalence under §112 ¶6 13
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even though the two structures would not be considered equivalent in other contexts, e.g. if performing functions other than the claimed function. Id. (holding that there were

substantial factual issues concerning whether a floppy disc drive was equivalent to a tape
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cassette transport and rejecting a summary judgment claim on that issue). See also Al-Site
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Corp. v. VSI Int'l Inc., 174 F.3d 1308, 1317 (Fed. Cir. 1999) (upholding a jury finding of
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substantial equivalence between glue and a rivet used on a hang tag).
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Based on the information provided and a review of the identity of the function, the
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similarity of result and, at a minimum, questions as to whether they perform in a similar
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way, this issue must be presented to a jury for decision.
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VI.
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Conclusion As demonstrated above, there are substantial facts which support a finding of

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infringement of the patent. While as to certain matters, there may be factual questions related to certain questions, such factual issues are properly the province of the jury, and as such preclude a finding of summary judgment. Because genuine issues of material fact exist, the Court should deny REM's Motion for Summary Judgment.

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DATED this 4th day of August, 2006. DeCONCINI MCDONALD YETWIN & LACY

By Ira M. Schwartz Michael A. Cordier 7310 N. 16th St., Suite 330 Phoenix, Arizona 85020 (602) 282-0500 Attorneys for Erchonia Medical Inc. and Kevin Tucek

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Certificate of Service I certify that on August 4, 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 those attorneys registered with CM/ECF: Michael Warzynski, Esq. JARDINE BAKER HICKMAN & HOUSTON PLLC 3300 N. Central Avenue, Suite 2600 Phoenix, AZ 85012 Co-Counsel for Erchonia Medical Inc. Benjamin B. Lieb, Esq. Robert Brunelli, Esq. SHERIDAN ROSS PC 1560 Broadway, Suite 1200 Denver, CO 80202 Attorneys for Robert E. Moroney, LLC, Robert E. Moroney, and A Major Difference Inc. David Bray, Esq. MARISCAL WEEKS MCINTYRE & FRIEDLANDER PA 2901 N. Central Avenue, Suite 200 Phoenix, AZ 85012 Attorneys for Robert E. Moroney, LLC, Robert E. Moroney, and A Major Difference Inc. Gregory L. Miles, Esq. Lori A. Curtis, Esq. DAVIS MILES PLLC 1550 E. McKellips Road, Suite 101 Mesa, AZ 85203 Attorneys for John and Claudette Brimhall Dominic L. Verstagen, Esq. KUNZ PLITT HYLAND DEMLONG & KLEIFIELD 3838 N. Central Avenue, Suite 1500 Phoenix, AZ 85012 Attorneys for John and Claudette Brimhall Scott A. Salmon, Esq. THE CAVANAGH LAW FIRM 1850 N. Central Avenue, Suite 2400 Phoenix, AZ 85004 Attorneys for George Gonzalez and Lorena Guzman Gordon S. Bueler, Esq. BUELER JONES, LLP 1300 N. McClintock Drive, Suite B-4 Chandler, AZ 85226 Attorneys for Miki Smith and KMS Marketing, Inc. /////

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020
7310

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And a copy mailed to: Gale R. Peterson, Esq. Cox Smith Matthews 112 East Pecan Street, Suite 1800 San Antonio, TX 78206 Special Master s/Ira M. Schwartz

DECONCINI MCDONALD YETWIN & LACY, P.C.

9 10 11
North 16th Street, Suite 330 Phoenix, Arizona 85020
7310

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