String Of Litigation Victories For IBA Culminates In Favorable Settlement

LOS ANGELES (August 23, 2007) McDermott Will & Emery achieved an outstanding result earlier this week for client Ion Beam Applications, S.A. (IBA), marking an end to a high stakes patent and unfair competition litigation that spanned five years. Optivus Technology, Inc. sued IBA in August 2002, alleging that IBA's proton beam therapy systems infringed five patents and that IBA had violated federal and state unfair competition laws and intentionally interfered with Optivus' prospective business. Loma Linda University Medical Center joined Optivus as a plaintiff in December 2002. The lawsuit sought to enjoin IBA from marketing, selling and manufacturing its proton beam therapy systems and further alleged damages exceeding $300 million.

On the eve of trial, Optivus and Loma Linda dismissed their lawsuit against IBA with prejudice (forever releasing IBA from any liability under the asserted claims), and covenanted not to sue or threaten to sue IBA on these claims in the future. IBA agreed to pay the plaintiffs $1.25 million, less than one-half of one percent of the originally pled damages and less than IBA's anticipated legal budget for the trial phase of the case, which was likely to be followed by an appeal.

The McDermott team first struck a serious blow to the plaintiffs' case in 2005 when Judge S. James Otero of the U.S. District Court for the Central District of California granted summary judgment in IBA's favor on two key patents, finding those patents not infringed and invalid. Judge Otero also granted IBA summary judgment on all of the Optivus' non-patent claims, dismissing those claims.

Optivus and Loma Linda appealed. In a published decision, Optivus Technology, Inc. v. Ion Beam Applications, the U.S. Court of Appeals for the Federal Circuit upheld the trial court's patent invalidity and non-infringement rulings. The Federal Circuit also affirmed the dismissal of the non-patent claims with the exception of two narrow factual issues relating to unfair competition allegations stemming from the procurement process that led to the selection of IBA to build the proton therapy facility at the University of Florida. On remand, the plaintiffs were left with three narrow "feature" patents (which had not been...