Healthe, Inc., tells the Honorable Roy B. Dalton, Jr., High Energy Ozone LLC d/b/a/ Far-UV Sterilray and S. Edward Neister misread their UV technology patents, attempting to erroneously broaden the meaning of the term “single line wavelengths” by eliminating requirements that are explicitly described as “critical” to the alleged inventions. For the “the surface to be disinfected,” Healthe says, HEO3 seeks to blatantly rewrite this phrase because, as written, it renders the claim fatally ambiguous and therefore invalid as indefinite. In each of the three remaining disputed terms, HEO3 disingenuously seeks a construction of “plain and ordinary meaning,” despite taking positions in the litigation, including in its infringement contentions, that clearly contradict the plain meanings of these terms, Healthe contends.
Adam Kaufmann and Craig Leavell at BARNES & THORNBURG LLP in Chicago represent Healthe, Inc., with the assistance of local counsel at AKERMAN LLP in Orlando, Fla., where the lawsuit is pending. Mr. Kaufmann joined Mr. Leavell’s IP practice group at B&T in late-June; Mr. Kaufmann was previously a Kirkland & Ellis partner. HEO3 is represented by legal teams at KING & SPAULDING LLP and FOX ROTHSCHILD LLP.
A copy of Healthe, Inc.’s Opening Claim Construction Brief is available from PacerMonitor.com at no charge. A Declaration by Mr. Kaufmann identifies 17 exhibits in support, copies of which are freely available to UV Reporter subscribers.
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’s legal teams at Kirkland & Ellis LLP and Akerman LLP say Healthe 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.
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 University of Colorado Boulder, teaching a “UV Processes in Environmental Systems” class and other classes about water sanitation, hygiene, reuse and reclamation.
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 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.