United States: String Of Litigation Victories For IBA Culminates In Favorable Settlement
Last Updated: August 24 2007

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 a subject of the summary judgment or appellate proceedings) and the two strictly limited non-patent claims.

With a trial date of August 21, 2007, rapidly approaching, the McDermott team defeated a last-minute attempt by the plaintiffs to obtain broad, new discovery. McDermott lawyers put further pressure on the plaintiffs by moving to dismiss the remaining patent claims and the remaining state unfair competition claim. Before the court had occasion to rule on those potentially dispositive motions, the parties agreed to settle.

"Reaching a settlement represents an exceptional victory for Ion Bean Applications," commented Mark Wine, McDermott partner representing IBA. "The McDermott team representing IBA was committed and determined through five years of litigation, which resulted in this achievement for IBA, and I am proud to have been a part of such a focused group."

Lead members of the McDermott team representing IBA included Mark Wine, Paul Devinsky and Brian Ferguson. The other members of the McDermott team who assisted on the case through its long history include Marc Brown, Charles Rosenberg, Eric Hagen, Michael Oleinik, Krista Vink Venegas, Jeff Goldberg, Ben Hofilena, Tiffany Scurry and Andre de la Cruz.

IBA, a Belgian company, delivers solutions of exceptional precision in the fields of cancer diagnosis and therapy. The company also provides sterilization and ionization solutions to improve the hygiene and safety of everyday life. IBA is listed on the pan-European stock exchange EURONEXT, is integrated into the NextEconomy market segment, and belongs to the BelMid index. For more information visit http://www.iba-worldwide.com.

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