Honorable Roy B. Dalton, Jr. gives lawyers an idiom suggestion: “be sure the taking of the hill is worth the casualties,” in Healthe, Inc. v. High Energy Ozone LLC d/b/a Far-UV. Sterilray and S. Ed Neister, Case No. 6:20-cv-02233 (M.D. Fla.)
Judge Dalton stated, “he doesn’t want any more filings supporting or opposing HEO3’s motion to dismiss Health’s lawsuit, “cautioning counsel that the tenor of the filings in the early days of this litigation is concerning.” This suggests the Judge is in no mood for games.
This is a landmark case of patent troll pandemic profiteering with inequitable conduct at its core when the patent misrepresents or omits material information with the specific intent to deceive the United States Patent and Trademark Office.
Showing krypton-chloride (KrCl) excimer lamps were already well-known, including specifically for disinfection and sterilization. For example, prior art U.S. Patent No. 5,843,374 (“Sizer”) titled “Method and Apparatus for Sterilizing Packaging”. Healthe cites this patent from the mid-1990’s https://lnkd.in/gffsPEFa
It only takes a few minutes to search the internet to find these style excimer-lamps date back to the 80s. High Energy Ozone seems to be blatantly perpetuating inequitable conduct by omitting material facts about the preexistence of Russian-made KrCl excimer lamps! For example, here https://lnkd.in/g5SB8U5 are actual images of working 222nm KrCl excimer lamps many years before HEO3 claimed to have invented them.
We hope the obvious helps this case to a jury trial because time has passed for IP protection as we are approaching 40-year-old excimer lamp technology. It is time for people to embrace the mass deployment of far-UV solid-state for IoT network communications infrastructure. KrCl excimer lamps should be allowed to be manufactured and sold by anyone to protect people’s lives in occupied spaces without fear of prosecution and fees.
Judge Dalton Tells Sterilray & Healthe’s Lawyers the Tenor of Their Legal Filings Makes Him Uncomfortable
In a brief paperless order entered yesterday, the Honorable Roy B. Dalton, Jr., told the lawyers in Healthe, Inc. v. High Energy Ozone LLC d/b/a Far-UV Sterilray and S. Ed Neister, Case No. 6:20-cv-02233 (M.D. Fla.): (x) he doesn’t want any more filings supporting or opposing HEO3’s motion to dismiss Healthe’s lawsuit, (y) “caution[ing] counsel that the tenor of the filings in the early days of this litigation is concerning,” and (z) “remind[ing them] to be sure the taking of the hill is worth the casualties.”
Barnes & Thornburg LLP represents Healthe, Inc., with the assistance of local counsel at Akerman LLP. A copy of Healthe’s filing opposing the motion to dismiss is available to UV Reporter subscribers via PacerMonitor.com at no charge.
As previously shared with UV Reporter subscribers, the parties’ disputes center on the technology described in U.S. Patent Nos. 9,700,642, 8,975,605, 8,481,985, and 8,753,575 and another pending patent published as US2017/0304472. Healthe says it hasn’t and doesn’t infringe on HEO3’s patents and HEO3’s infringement allegations are based on impermissibly expanding the claim scope in an attempt to encompass Helathe’s accused products. Healthe believes HEO3’s infringement contentions reflect the fact that HEO3 is defining words contrary to their plain and ordinary meaning, and that, under the plain and ordinary meaning of the terms, the asserted claims are not infringed by Healthe and are invalid. “Adoption of Healthe’s proposed constructions, which are based on the intrinsic evidence and, for one claim term, expert testimony, will make it clear that Healthe is entitled to summary judgment that it does not infringe the asserted claims and that the asserted claims are invalid,” the lawyers told Judge Dalton earlier this month. A copy of Healthe, Inc.’s Opening Claim Construction Brief is available from PacerMonitor.com at no charge. A Declaration by Adam Kaufmann, Esq., identifies 17 exhibits in support, copies of which are freely available to UV Reporter subscribers.
Healthe expects to offer testimony from Dr. Karl G. Linden supporting that the phrase “the surface to be disinfected” in Claim 1 of the ’605 Patent means indefinite and renders Claim 1 of the ’605 Patent indefinite. Dr. Linden is a professor of environmental engineering at the University of Colorado Boulder, teaching a “UV Processes in Environmental Systems” class and other classes about water sanitation, hygiene, reuse, and reclamation.
HEO3’s legal teams at King & Spalding LLP and Fox Rothschild LLP explain their clients believe Healthe infringes based upon the meanings of the words and phrases rooted in the intrinsic record and reflect the plain and ordinary meaning. As a result, HEO3’s position is that if the Court adopts its proposed constructions, summary judgment of infringement will be appropriate. HEO3 expects to offer testimony from Dr. Mark Hernandez supporting that the meaning of the phrase “the surface to be disinfected” in Claim 1 of the ’605 Patent is not indefinite or, in the alternative, means “the surface of the substance to be disinfected.” Dr. Hernandez is also an environmental engineering professor at the University of Colorado Boulder.
The parties have scheduled a non-adversarial technology tutorial conference before the Honorable Roy B. Dalton, Jr. (and, likely, Magistrate Embry J. Kidd and the jurists’ law clerks) in Orlando, Fla., on Thurs., Oct. 7, 2021.
See https://uvreporter.com/?s=sterilray for previous news shared with UV Reporter subscribers about litigation by and against Sterilray.