Free Report - 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 REPORT RE PATENT CLAIMS

Case 2:02-cv-02036-MHM

Document 331

Filed 07/10/2006

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Erchonia Medical Inc., and Kevin Tucek (collectively referred to as "Erchonia") submit this report pursuant to the Court's Minute Entry Order dated June 30, 2006.

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I.
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Identification of Claims Infringed In response to the Court's inquiry, Erchonia identifies that it is currently claiming

that defendants have infringed the following claims of U.S. Patent No. 6,013,096: Claims
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1-3 and 5-9.
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DECONCINI MCDONALD YETWIN & LACY, P.C.

Erchonia notes that it had originally identified that claims 1-3, 5-9, 10-12 and
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14 -16 as being infringed. These claims were identified at the Defendant's request in a
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letter dated March 3, 2005. Subsequently, after certain proceedings in this matter were
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held, Erchonia narrowed its contentions to exclude patent claims 10-12 and 14-16 in a letter to defense counsel dated March 13, 2006. II. Additional Information Regarding Literal Infringement and Infringement

Under the Doctrine of Equivalents. Erchonia contends that the infringing products imported, used, demonstrated and sold by the Defendants in this case (Robert E. Moroney, LLC (REM), Robert E. Moroney, A Major Difference, LLC (AMD) and Miki Smith) consist of at least two different variations of the infringing products. Erchonia has obtained a sample of one version of the Quantum IV laser which was manufactured by Flitton Engineering in the United Kingdom and sold by REM. This unit, which is referred to as the "manufactured unit", was

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manufactured in at least three different versions, with each version, at least, having differences in the computer board used in it. Erchonia is also aware that Flitton

Engineering manufactured what were referred to as "prototype units" probably prior to the manufacturing of the manufactured units. At least some of the prototype units contained a line generated laser diode manufactured by Diode Laser Concepts. Erchonia contends that these prototype units were completed, imported by Defendants and used in the United States. 2
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For purposes of clarification, Erchonia admits that at least some of the manufactured units contained laser diodes which are different from the line generated laser diodes used in the prototype units, but which Erchonia contends are equivalent to the line

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generated laser diodes for purposes of infringement of the `096 Patent.
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A.
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Claim 1. 1. A hand-held laser light generator device for use in medical therapy, said device comprising: a) a wand in the form of a substantially elongated hollow tube defining an interior cavity and capable of being retained in a hand of a user and freely moved relative to the surface of the skin of a patient to receive the medical therapy; (b) means mounted in said interior cavity of said wand for generating a beam of laser light in the red color spectrum; (c) an optical arrangement mounted in said interior cavity of said wand for receiving the red color spectrum generated beam of laser light from said generating means and for transforming the generated beam of laser light into a substantially planar beam of laser light disposed externally of said wand for producing a line of laser light in the red color spectrum at a desired location on the surface of a patient's skin and with said line of laser light being visible to the user as said wand is held and freely moved by the user in a spaced relationship from and out of contact with the patient; (d) a housing defining an interior chamber and having an exterior; (e) means disposed in said interior chamber of said housing for supplying electrical power to said laser beam generating means; (f) means for electrically interconnecting said laser beam generating means and said electrical power supply means such that said wand is movable relative to said housing; and (g) means on said housing for controlling a period of time said beam of laser light is generated.

DECONCINI MCDONALD YETWIN & LACY, P.C.

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With regard to this claim, Erchonia contends that both the manufactured units and the prototypes units infringe element (a) above either literally or under the doctrine of equivalents. Erchonia contends that both the manufactured units and prototype units infringe element (b) above literally or under the doctrine of equivalents. Erchonia

contends that the manufactured units infringe element (c) above under the doctrine of

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equivalents, and that the prototype units infringe element (c) above literally. Erchonia contends that both the manufactured units and the prototype units infringe element (d) above literally. Erchonia contends that both the manufactured units and prototype units infringe element (e) above literally. Erchonia contends that the manufactured units and the prototype units infringe element (f) above literally or under the doctrine of equivalents. Erchonia contends that the manufactured units and the prototype units infringe element (g) above under the doctrine of equivalents. B. Claim 2. The device of Claim 1 wherein said generating means is a semiconductor diode laser using less than one watt of power. Erchonia contends the elements of this claim are infringed literally. C. Claim 3. The device of claim 1 wherein the generated beam of light has a wavelength of about 635 nm. Erchonia contends the elements of this claim are infringed literally. D. Claim 5. The device of claim 1 wherein said electrical power supplying means is a battery. Erchonia contends the elements of this claim are infringed literally. E. Claim 6. The device of claim 1 wherein said controlling means includes: An electrical timing circuit disposed in said interior chamber of and being mounted to said housing; A start switch activatable between on and off positions; and A selector knob having multiple period of time length setting positions, said start switch and selector knob being mounted to said

DECONCINI MCDONALD YETWIN & LACY, P.C.

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North 16th Street, Suite 330 Phoenix, Arizona 85020
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housing and accessible at said exterior thereof and being in operable communication with said electrical timing circuit for controlling initiation of generation of said beam of laser and length of period of time said beam of laser light is generated.

Erchonia contends this claim is infringed under the doctrine of equivalents. F. Claim 7. The device of claim 6 wherein said controlling means further includes: a lock mechanism mounted to said housing; and a key for actuating said lock mechanism between a first position in which said lock mechanism said start switch to be activiated to said on position and a second position in which said lock mechanism prevents said start switch form being activated to said on position. Erchonia contends that lock mechanism element described in the first element of this claim is infringed literally. Erchonia contends that the second element of this claim is infringed under the doctrine of equivalents. G. Claim 8. The device of claim 1 wherein said housing further has a cradle mounted to and projecting outwardly from said exterior of said housing for releasably securing said wand thereto, said cradle defining an annular slot open at opposite ends, such that said tubular wand can be removably and slideably placed through said slot in a relatively tight-fitting relationship with said cradle and thereby retained by said cradle in a storage position spaced apart from and alongside said housing. Erchonia contends that this claim is literally infringed. H. Claim 9. The device of claim 1 wherein said housing further has a clip mounted to said exterior of said housing for releasably securing said housing to an article of clothing worn by the user.

DECONCINI MCDONALD YETWIN & LACY, P.C.

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North 16th Street, Suite 330 Phoenix, Arizona 85020
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Erchonia contends that this claim is literally infringed. DATED this 10th day of July, 2006. DeCONCINI MCDONALD YETWIN & LACY

DECONCINI MCDONALD YETWIN & LACY, P.C.

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North 16th Street, Suite 330 Phoenix, Arizona 85020

By s/ Ira M. Schwartz 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 July 10, 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 Ave., 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 Ave., 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 Ave. 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. s/Ira M. Schwartz__________

DECONCINI MCDONALD YETWIN & LACY, P.C.

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North 16th Street, Suite 330 Phoenix, Arizona 85020
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