DCT

1:13-cv-11567

Zond Inc v. Gillette Co The

I. Executive Summary and Procedural Information

Parties & Counsel:
- Plaintiff: Zond, Inc. (Delaware)
- Defendant: The Gillette Company (Delaware) and The Procter & Gamble Company (Ohio)
- Plaintiff’s Counsel: Birnbaum & Godkin, LLP
Case Identification: 1:13-cv-11567, D. Mass., 07/01/2013
Venue Allegations: Plaintiff alleges venue is proper in the District of Massachusetts because Defendant Gillette has a principal place of business in Boston and has allegedly committed acts of infringement in the district.
Core Dispute: Plaintiff alleges that Defendant’s razor blade products, including the Fusion ProGlide line, are manufactured using processes that infringe ten of Plaintiff's patents related to high-power pulsed plasma generation and magnetron sputtering technology.
Technical Context: The technology at issue involves methods for creating strongly-ionized plasmas for industrial applications, such as sharpening and applying high-performance coatings to materials like razor blades.
Key Procedural History: The complaint alleges that the parties engaged in business discussions regarding Plaintiff’s patented technology between 2009 and 2010. It further alleges that Defendant cited over 30 of Plaintiff's patents and patent applications during the prosecution of its own patents. Subsequent to the filing of this complaint, Inter Partes Review (IPR) proceedings were instituted against all ten patents-in-suit, and all claims of all ten patents were ultimately cancelled by the U.S. Patent and Trademark Office.

Case Timeline

Date	Event
2002-09-30	Earliest Priority Date ('759 Patent)
2002-10-29	Earliest Priority Date ('775 Patent)
2002-11-04	Earliest Priority Date ('142, '716 Patents)
2002-11-14	Earliest Priority Date ('773, '421 Patents)
2003-03-21	Earliest Priority Date ('779 Patent)
2003-04-22	Earliest Priority Date ('652 Patent)
2004-02-22	Earliest Priority Date ('184, '155 Patents)
2004-10-19	Issue Date ('779, '652 Patents)
2005-02-08	Issue Date ('142 Patent)
2005-05-24	Issue Date ('775, '773 Patents)
2006-12-12	Issue Date ('759 Patent)
2009-11-01	Zond-Gillette business discussions allegedly begin
2009-10-20	Issue Date ('716 Patent)
2010-01-01	Accused Fusion ProGlide razor allegedly launched
2010-08-01	Zond-Gillette business discussions allegedly end
2010-10-05	Issue Date ('184 Patent)
2010-10-12	Issue Date ('421 Patent)
2012-02-28	Issue Date ('155 Patent)
2013-07-01	Complaint Filing Date

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 6,896,775 - "High-Power Pulsed Magnetically Enhanced Plasma Processing"

The Invention Explained

Problem Addressed: The patent's background describes that while increasing power in plasma sputtering can improve uniformity and density, it significantly raises the probability of creating an "undesirable electrical discharge (an electrical arc)," which can contaminate the process ('775 Patent, col. 3:33-40). Existing pulsed power supplies can mitigate but not eliminate this issue at very high power levels ('775 Patent, col. 3:40-54).
The Patented Solution: The invention proposes a two-step method to generate a high-density plasma without arcing. First, an ionization source creates an initial, "weakly-ionized plasma" from a feed gas proximate to the cathode. Second, a "high-power electrical pulse" is applied across this pre-existing plasma, which elevates it to a "strongly-ionized" state ('775 Patent, Abstract). This pre-ionization provides a conductive medium that prevents the breakdown and arcing that would occur if a high-power pulse were applied directly to a neutral gas ('775 Patent, col. 7:1-9).
Technical Importance: This approach allows for the stable generation of high-density plasmas required for advanced industrial processes, such as sputter etching, without the contamination and instability caused by electrical arcing ('775 Patent, col. 5:31-44).

Key Claims at a Glance

The complaint asserts "one or more claims" of the '775 Patent (Compl. ¶54). Independent claim 1 is representative:
- An ionization source that generates a weakly-ionized plasma from a feed gas proximate to an anode and a cathode.
- A magnet that generates a magnetic field for substantially trapping electrons in the weakly-ionized plasma proximate to the cathode.
- A power supply that applies an electrical pulse across the weakly-ionized plasma.
- The electrical pulse has a magnitude and rise time sufficient to increase the plasma's density to a strongly-ionized state.
- A voltage supply applies a bias voltage to a substrate, causing ions to impact the substrate surface and perform etching.

U.S. Patent No. 6,853,142 - "Methods and Apparatus for Generating High-Density Plasma"

The Invention Explained

Problem Addressed: The patent addresses the technical challenge of generating dense and uniform plasmas for industrial applications. It notes that simply increasing power to conventional plasma systems to achieve higher density often leads to electrical breakdown conditions and undesirable arcing, which corrupts the manufacturing process ('142 Patent, col. 3:4-19).
The Patented Solution: The invention describes a method where a plasma is generated in a stepwise process. First, an ionization source creates a "weakly-ionized plasma" which serves as a conductive medium ('142 Patent, col. 7:5-9). A separate power supply then delivers a "high-power electrical pulse" to this pre-existing plasma, transforming it into a "strongly-ionized plasma" ('142 Patent, Abstract; col. 8:1-12). By pre-ionizing the gas, the system can accept very high power pulses without the electrical breakdown that causes arcing ('142 Patent, col. 9:1-8).
Technical Importance: This method enables the creation of stable, high-density plasmas, which are crucial for high-performance industrial applications such as high-deposition rate sputtering, by overcoming the power limitations imposed by arcing in conventional systems ('142 Patent, col. 9:36-41).

Key Claims at a Glance

The complaint asserts "one or more claims" of the '142 Patent (Compl. ¶60). Independent claim 1 is representative:
- An ionization source that generates a weakly-ionized plasma from a feed gas in a chamber.
- A power supply that supplies power to the weakly-ionized plasma through an electrical pulse.
- The pulse has a magnitude and rise time sufficient to increase the density of the weakly-ionized plasma to generate a strongly-ionized plasma.
- The process occurs without developing an electrical breakdown condition in the chamber.

U.S. Patent No. 7,147,759 - "High-Power Pulsed Magnetron Sputtering"

Technology Synopsis: This patent describes a method for magnetron sputtering where a weakly-ionized plasma is first generated near a sputtering target. A high-power electrical pulse is then applied to create a strongly-ionized plasma, which generates a sputtering flux from the target ('759 Patent, Abstract). This two-step process is intended to enable high-power operation without the arcing that limits conventional systems.
Asserted Claims: "one or more claims" (Compl. ¶48).
Accused Features: The complaint alleges that the manufacturing processes for Defendant's razor blades utilize the claimed high-power pulsed magnetron sputtering methods (Compl. ¶¶21, 48).

U.S. Patent No. 7,604,716 - "Methods and Apparatus for Generating High-Density Plasma"

Technology Synopsis: This patent relates to generating a high-density plasma by first creating a weakly-ionized plasma between an anode and a cathode. A power supply then produces an electric field that excites atoms within this initial plasma and generates secondary electrons from the cathode, which in turn ionize the excited atoms to create the final strongly-ionized plasma ('716 Patent, Abstract).
Asserted Claims: "one or more claims" (Compl. ¶66).
Accused Features: The complaint alleges Defendant's razor blade manufacturing employs the claimed methods for generating high-density plasma (Compl. ¶¶21, 66).

U.S. Patent No. 6,896,773 - "High Deposition Rate Sputtering"

Technology Synopsis: This patent describes a method for achieving high deposition rates in sputtering. It involves creating a strongly-ionized plasma from a weakly-ionized plasma, where the resulting ions have sufficient thermal energy to cause the sputtering yield of the target to become non-linearly related to its temperature ('773 Patent, Abstract). This is intended to create an "explosive" evaporation at the target surface, dramatically increasing deposition rate.
Asserted Claims: "one or more claims" (Compl. ¶72).
Accused Features: The complaint alleges Defendant's manufacturing processes use the claimed high-deposition rate sputtering techniques to coat its razor blades (Compl. ¶¶21, 72).

U.S. Patent No. 7,811,421 - "High Deposition Rate Sputtering"

Technology Synopsis: This patent is directed to methods for high-deposition sputtering. The technology involves generating a strongly-ionized plasma from a weakly-ionized one, with the resulting plasma having ions energetic enough to cause the sputtering yield to be non-linearly related to the sputtering target's temperature, thereby increasing the deposition rate ('421 Patent, Abstract).
Asserted Claims: "one or more claims" (Compl. ¶78).
Accused Features: The complaint alleges Defendant's razor blade coating processes utilize the claimed methods for achieving high deposition rates (Compl. ¶¶21, 78).

U.S. Patent No. 6,805,779 - "Plasma Generation Using Multi-Step Ionization"

Technology Synopsis: This patent describes generating a plasma through a multi-step ionization process. An excited atom source first generates excited atoms (e.g., metastable atoms) from a feed gas. An energy source then raises the energy of these excited atoms to ionize them, creating the plasma ('779 Patent, Abstract). This method is intended to be more efficient than direct ionization from a ground state.
Asserted Claims: "one or more claims" (Compl. ¶84).
Accused Features: The complaint alleges Defendant's manufacturing processes use multi-step plasma ionization as part of its blade sharpening and coating technology (Compl. ¶¶19, 84).

U.S. Patent No. 7,808,184 - "Methods and Apparatus for Generating Strongly-Ionized Plasmas with Ionizational Instabilities"

Technology Synopsis: This patent describes generating strongly-ionized plasmas by creating "ionizational instabilities." A pulsed power supply generates a multi-stage voltage pulse, including a low-power stage to create a weakly-ionized plasma and a transient stage with a higher voltage to shift the electron energy distribution, creating instabilities that lead to a rapid increase in electron density and the formation of a strongly-ionized plasma ('184 Patent, Abstract).
Asserted Claims: "one or more claims" (Compl. ¶90).
Accused Features: The complaint alleges that the plasma generation techniques used in Defendant's manufacturing processes employ the claimed methods involving ionizational instabilities (Compl. ¶¶19, 90).

U.S. Patent No. 6,806,652 - "High-Density Plasma Source Using Excited Atoms"

Technology Synopsis: This patent describes a plasma source that first uses an excited atom source to generate an initial plasma and excited atoms from a feed gas. A separate power supply then generates an electric field that "super-ionizes" this initial plasma to create a high-density plasma ('652 Patent, Abstract).
Asserted Claims: "one or more claims" (Compl. ¶96).
Accused Features: The complaint alleges Defendant's manufacturing processes utilize plasma sources that generate high-density plasma from excited atoms as claimed (Compl. ¶¶19, 96).

U.S. Patent No. 8,125,155 - "Methods and Apparatus for Generating Strongly-Ionized Plasmas with Ionizational Instabilities"

Technology Synopsis: This patent, related to the '184 patent, describes methods for creating strongly-ionized plasmas by inducing ionizational instabilities. It involves a multi-stage voltage pulse with a low-power stage to create a weakly-ionized plasma, followed by a transient, higher-voltage stage that shifts the electron energy distribution and causes a rapid increase in electron density ('155 Patent, Abstract).
Asserted Claims: "one or more claims" (Compl. ¶102).
Accused Features: The complaint alleges that the plasma generation methods used in Defendant's manufacturing processes rely on creating ionizational instabilities as claimed (Compl. ¶¶19, 102).

III. The Accused Instrumentality

Product Identification

The accused products are Defendant's razor blade products, including but not limited to "Fusion ProGlide, Venus, Fusion, Fusion Power and Fusion ProGlide Power" (Compl. ¶48).

Functionality and Market Context

The complaint alleges that the accused products are manufactured using Plaintiff's patented plasma technology to achieve key competitive features (Compl. ¶18). Specifically, the technology is allegedly used in a magnetron sputtering process to sharpen, coat, and protect the steel blades (Compl. ¶21). This process purportedly provides advantages over competing technology, including better adhesion of coatings and the deposition of higher quality, harder coatings without the damaging effects of electrical arcing common in high-power plasma systems (Compl. ¶21). The complaint also asserts that tests have confirmed the presence of certain chemical elements in the Fusion ProGlide razor blade that could only have been incorporated using Zond's patented technology (Compl. ¶22).

IV. Analysis of Infringement Allegations

The complaint does not provide a claim chart or specific factual allegations mapping the features of Defendant's manufacturing processes to the elements of any asserted patent claim. The infringement allegations are pleaded generally on "information and belief" (e.g., Compl. ¶¶48, 54, 60). Therefore, a claim chart summary cannot be constructed from the complaint's allegations.

Identified Points of Contention:
- Evidentiary Question: The central dispute will be factual: what specific manufacturing process does Gillette use to sharpen and coat its accused razor blades? The complaint’s allegations depend on "information and belief" and the outcome of unspecified "tests" (Compl. ¶22). A primary question for the court will be whether discovery reveals evidence that Gillette's process uses the two-step plasma generation method (pre-ionization followed by a high-power pulse) that is a core concept in the asserted patents.
- Scope Questions: Should evidence of such a process emerge, the analysis will turn to claim scope. A likely point of contention will be whether the terms "weakly-ionized plasma" and "strongly-ionized plasma," which are central to the asserted claims, read on the specific plasma conditions and densities utilized in Defendant’s manufacturing environment. Another question will be whether the power supplies used by Defendant generate an "electrical pulse" that has the "magnitude and a rise-time sufficient" to cause the claimed plasma transformation, which is a functional limitation that will require technical and expert evidence to resolve.

V. Key Claim Terms for Construction

The Term: "weakly-ionized plasma"
Context and Importance: This term defines the required initial state of the gas before the main high-power pulse is applied. Its construction is critical because if the defendant's initial plasma state does not meet the definition of "weakly-ionized," there can be no infringement. Practitioners may focus on this term because the patents contrast it with the resulting "strongly-ionized plasma," making the boundary between them a central issue.
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The patents often describe the term qualitatively as a plasma with a "relatively low-level of ionization" ('142 Patent, col. 9:9-10) or a "pre-ionized plasma" ('775 Patent, col. 7:59-60), which may support a broader, non-numerical definition.
- Evidence for a Narrower Interpretation: The specifications provide exemplary numerical ranges. U.S. Patent No. 6,853,142 describes it as a plasma having a "peak plasma density that is in the range of about 10⁷ to 10¹² cm⁻³" ('142 Patent, col. 8:59-62). A party could argue that this provides a specific, limiting definition.
The Term: "strongly-ionized plasma"
Context and Importance: This term defines the required end-product of the claimed process. The infringement analysis depends on whether the defendant's process actually creates a plasma meeting this definition.
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The patents frequently use the qualitative synonym "high-density plasma" ('142 Patent, col. 9:36), which could argue for a comparative rather than an absolute definition.
- Evidence for a Narrower Interpretation: The specification of U.S. Patent No. 6,853,142 gives a numerical threshold, defining it as a plasma where "the peak plasma density of the high-density plasma is greater than about 10¹² cm⁻³" ('142 Patent, col. 10:62-63). This language may be used to argue for a specific numerical floor for infringement.

VI. Other Allegations

Willful Infringement: The complaint alleges that Defendant's infringement has been willful since at least 2007 (Compl. ¶¶25, 50, 56). The allegations are based on purported pre-suit knowledge of the patents, supported by several factual assertions: (1) Defendant's alleged citation of over 30 of Plaintiff's patents and patent applications during the prosecution of its own U.S. Patent No. 7,966,909 (Compl. ¶23); (2) direct business negotiations between the parties from November 2009 to August 2010 concerning the patented technology (Compl. ¶¶26-38); and (3) an allegation that Gillette analyzed each new Zond patent upon issuance and made a deliberate decision to continue infringing (Compl. ¶45). The complaint includes a visual excerpt from Defendant's patent, listing numerous Zond patents as cited references to support the allegation of knowledge (Compl. p. 7).

VII. Analyst’s Conclusion: Key Questions for the Case

A dispositive threshold question will be one of legal viability: given that all claims of all ten asserted patents were cancelled in Inter Partes Review proceedings subsequent to the filing of the complaint, what legal basis, if any, remains for the infringement action to proceed?
A central evidentiary question will be one of process identification: what specific steps, plasma conditions, and power application profiles comprise Gillette’s actual manufacturing process for its accused razor blades, and does this process align with the two-step pre-ionization and super-ionization method required by the asserted patents?
Should the case proceed and evidence of a similar process be found, a key technical question will be one of definitional scope: can the terms "weakly-ionized plasma" and "strongly-ionized plasma," which are defined with exemplary numerical ranges in the specifications, be construed to cover the specific plasma densities and characteristics present in Defendant's industrial manufacturing environment?