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With the lawsuit over, dueling press releases followed. In May, publicly
owned NKT Photonics A/S of Birkerød and privately held Fianium Ltd. of Southampton
announced settlement of the lawsuit between them. Both claimed to have won.
Resolving this seeming contradiction required careful reading
of the releases and the court order. The take-away is that both companies will continue
to supply the fiber-based supercontinuum sources widely used by life sciences researchers
for imaging and other applications.
“From a pure customer point of view, a settlement does not
change anything,” said NKT Photonics CEO Jakob D. Skov, adding that the real
value to his company lies in the court’s ordering a stop to patent infringements.
With regard to the money involved, that, too, is a win for NKT Photonics, he said.
The dispute, which went public with the filing of the lawsuit
in February 2009, concerned the manufacturing process involved in producing photonic
crystal, or microstructured, fibers. Specialized industrial-class versions of these
fibers lie at the heart of certain types of fiber lasers and supercontinuum sources.
NKT Photonics holds patents relating to pressure control during
the production of these fibers and the postprocessing that occurs after the pressure
step. In the lawsuit, the company claimed that Fianium was infringing on these patents
and asked that it be stopped from doing so. Fianium disputed this, and the two sides
went to court.
The April 29, 2010, order from the UK’s High Court of Justice
Chancery Division Patents Court in London, which ended the lawsuit, had something
for everyone. Some of Fianium’s manufacturing processes, the details of which
were kept confidential, did infringe on NKT Photonics’ patents, the court
found. But others did not. Fianium was ordered to stop its infringement, but was
free to use a manufacturing process it had developed that did not infringe.
As for costs, those, too, were split, with Fianium paying NKT
Photonics an undisclosed sum and costs dating from the start of the lawsuit up to
February 2010. However, NKT had to pay the cost of the proceedings thereafter. The
switch in who pays has to do with an offer Fianium made, which had a February 2010
Fianium originally bought fiber from Crystal Fibre A/S, and the
lawsuit continued after the merger that created NKT Photonics in 2009. According
to John Clowes, Fianium’s vice president of business development, the company
developed its own manufacturing process because it couldn’t get fiber with
the right specifications elsewhere.
He said that the company is glad to have the lawsuit behind it,
and that Fianium attempts to make its products clean with regard to intellectual
property before releasing them. He added that the lawsuit may have caused some products’
debuts to slip, but that the company expects to release some new supercontinuum
offerings in the near future.
As for the settlement, Fianium characterized it as a win, in part
because the company got what it wanted, Clowes said. “It’s very favorable
for us. We set with an intention in this lawsuit of continuing our business uninterrupted,
and that’s what we’ve achieved.”