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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 __________________________

LAWRENCE M. FALLAT, DPM,

Plaintiff,

v

CRYOMED, LLC, a Delaware Limited 

Liability Company,

Defendant.

Case No. 08-14875

HON. LAWRENCE P. ZATKOFF

DEFENDANT'S BRIEF IN OPPOSITION 

TO PLAINTIFF'S MOTION FOR 

PRELIMINARY INJUNCTION

David L. Steinberg (P32247)

THAV, GROSS, STEINWAY & BENNETT, P.C.

Co-Counsel for Plaintiff

30150 Telegraph Road, Suite 444

Bingham Farms, MI 48025

(248) 645-1700

dsteinberg@thavgross.com

Thomas E. Anderson (P32564)

Mark D. Schneider (P55253)

GIFFORD, KRASS, SPRINKLE, ANDERSON &

CITKOWSKI, P.C.

Co-Counsel for Plaintiff

2701 Troy Center Drive, Suite 330

Troy, MI 48084

(248) 647-6000

tanderson@patlaw.com

mschneider@patlaw.com

Steve J. Sielatycki (P66751)

LAW OFFICE OF STEVE SIELATYCKI

Counsel for Defendant

516 Whites Road, Suite 4

Kalamazoo, MI 49008

(269) 978-2525

sielatycki@gmail.com

DEFENDANT'S BRIEF IN OPPOSITION TO PLAINTIFF'S

MOTION FOR PRELIMINARY INJUNCTION

Defendant Cryomed, LLC (“Defendant” or “Cryomed”), by and through its attorney, 

Steve J. Sielatycki, states for its Brief in Opposition to Plaintiff's Motion for Preliminary 

Injunction as follows:

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INTRODUCTION

Defendant is a manufacturer of cryosurgical devices used by hospitals to treat neuromas 

in addition to a myriad of other medical techniques. Such cryosurgical devices and techniques 

have been used in the medical field for over 20 years. Apparently, Plaintiff believes it has 

acquired a patent covering these obvious techniques that date back to well before Plaintiff's 

alleged "invention" of the techniques. Yet this patent is certainly invalid.

Plaintiff now asks this Court to grant a preliminary injunction despite the fact that, as the 

Court has already ruled, "adequate remedies exist at law." Order Denying Plaintiff's Motion for 

Temporary Restraining Order, at 4. Despite this, Plaintiff asks this Court for a drastic remedy, 

specifically, the cessation of production and distribution of medical treatment devices that are 

used by hospitals and doctors throughout the country to treat patients using a myriad of medical 

techniques that are wholly unrelated to Plaintiff's alleged patent.

In light of these facts, and for the reasons articulated below, Defendant respectfully 

requests that this Court deny Plaintiff's Motion for Preliminary Injunction.

STANDARD OF REVIEW

Whether preliminary injunctive relief should be granted is determined by consideration of 

the following four factors: "(1) the likelihood of the plaintiff's success on the merits; (2) whether the 

injunction will save the plaintiff from irreparable injury; (3) whether the injunction would harm 

others; and (4) whether the public interest would be served." Int'l Longshoremen's Assoc. AFLCIO, Local Union No. 1937 v. Norfolk Southern Corp., 927 F.2d 900, 903 (6th Cir. 1991). 

ARGUMENT

Plaintiff is not entitled to a preliminary injunction against Defendant. In this case, analysis 

of each of the relevant factors supports the denial of Plaintiff's Motion for Preliminary Injunction.

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I. DEFENDANT, NOT PLAINTIFF, HAS A STRONG LIKELIHOOD OF SUCCESS 

ON THE MERITS

Cryosurgical devices have been used for over 20 years by interventional pain specialists to 

treat painful neuromas, and these techniques have been widely published. In the face of these 

historical facts, it is difficult to see how Plaintiff's patent could possibly survive even cursory 

scrutiny. For a patent to be valid, it must detail an "invention [that was not] known or used by 

others [...] before the invention thereof by the applicant." 35 U.S.C. § 102(a). Moreover, a patent 

will not stand where the technique "would have been obvious at the time the invention was made to 

a person having ordinary skill in the art to which said subject matter pertains." 35 U.S.C. § 103(a). 

In this case, cryosurgical devices have been used by doctors throughout this country and the 

world for over 20 years. Not only would this technique have been obvious to an interventional pain 

specialist at the time of the invention, but the technique of using cryosurgical devices to treat painful 

neuromas was, in fact, practiced by interventional pain specialists at that time. This clear history of 

treatment of neuromas by the use of cryosurgical devices is fatal to Plaintiff's patent claims.

Moreover, even if the Court were to find that the patent or a portion of the patent is valid, 

Defendant's devices do not require the use of the patented technique. In fact, many techniques are 

implemented by doctors when using cryosurgical devices. To succeed on its contributory 

infringement and inducing infringement claims, Plaintiff would need to somehow prove the false

assertion that Defendant's device is only usable by implementation of Plaintiff's technique. The 

more than a dozen other techniques implemented by doctors using the devices will prove fatal to 

any such assertion by Plaintiff.

As such, Defendant is likely to succeed on the merits of this case.

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II. PLAINTIFF WILL NOT SUFFER IRREPARABLE INJURY IF INJUNCTIVE 

RELIEF IS NOT GRANTED

Moreover, even if Plaintiff succeeds in convincing the Court that it has suffered injury for 

which redress is required, such injury would not be irreparable. It is black-letter law that "[i]f the 

injury complained of may be compensated by an award of monetary damages, then an adequate 

remedy at law exists and no irreparable harm may be found as a matter of law." Cellnet 

Communications, Inc. v. New Par, 291 F. Supp. 2d 565, 570 (E.D. Mich. 2003).

In this case, Plaintiff complains that it is entitled to royalties or license fees from its 

patent. In the unlikely event that Plaintiff was to prevail on the merits, an award of money 

damages could be fashioned by the Court to precisely coincide with the royalties and license fees 

being demanded by Plaintiff. Moreover, in its Order Denying Plaintiff's Motion for Temporary 

Restraining Order entered on December 23, 2008, this Court held that "adequate remedies exist 

at law." Id., at 4. 

As such, Plaintiff's have simply failed to demonstrate that any irreparable injury will 

result if a preliminary injunction is not issued. Quite to the contrary, Defendant would be forced 

to cease the production and sale of its devices at great and incalculable and irreparable cost to 

Defendant. Given the adequate remedies at law, Defendant respectfully requests that this Court 

deny Plaintiff's Motion for Preliminary Injunction.

III. A PRELIMINARY INJUNCTION WOULD HARM THIRD PARTIES

As articulated above, Defendant's devices are used for over a dozen techniques by doctors 

in their treatment of patients. It is not only impractical, but needlessly harmful to these doctors 

and their patients to deprive them of a medical device to effectuate proper treatment. The harm 

to these doctors and patients, none of which are parties to this litigation, is incalculable and 

irreparable, further counseling against the issuance of a preliminary injunction.

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IV. THE PUBLIC INTEREST WOULD BE HARMED BY ISSUANCE OF A 

PRELIMINARY INJUNCTION

Likewise, as articulated in Section III above, the public interest in effective medical care for 

patients counsels against a preliminary injunction in this case. Adequate remedies at law exist, and 

medical hospitals, the primary customers of Defendant, would be deprived of a useful treatment 

device with over a dozen uses. In light of these facts, the public interest is clearly in favor of 

continued availability of Defendant's medical treatment devices.

V. CONCLUSION

For the foregoing reasons, Defendant respectfully requests that this Court deny Plaintiff's

Motion for Preliminary Injunction.

Respectfully submitted,

LAW OFFICE OF STEVE SIELATYCKI

Dated: April 10, 2009 By: _s/Steve Sielatycki__________________

Steve J. Sielatycki (P66751)

Attorney for Defendant

BUSINESS ADDRESS:

516 Whites Road, Suite 4

Kalamazoo, MI 49008

(269) 978-2525

sielatycki@gmail.com

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 __________________________

LAWRENCE M. FALLAT, DPM,

Plaintiff,

v

CRYOMED, LLC, a Delaware Limited 

Liability Company,

Defendant.

Case No. 08-14875

HON. LAWRENCE P. ZATKOFF

CERTIFICATE OF SERVICE

David L. Steinberg (P32247)

THAV, GROSS, STEINWAY & BENNETT, P.C.

Co-Counsel for Plaintiff

30150 Telegraph Road, Suite 444

Bingham Farms, MI 48025

(248) 645-1700

dsteinberg@thavgross.com

Thomas E. Anderson (P32564)

Mark D. Schneider (P55253)

GIFFORD, KRASS, SPRINKLE, ANDERSON &

CITKOWSKI, P.C.

Co-Counsel for Plaintiff

2701 Troy Center Drive, Suite 330

Troy, MI 48084

(248) 647-6000

tanderson@patlaw.com

mschneider@patlaw.com

Steve J. Sielatycki (P66751)

LAW OFFICE OF STEVE SIELATYCKI

Counsel for Defendant

516 Whites Road, Suite 4

Kalamazoo, MI 49008

(269) 978-2525

sielatycki@gmail.com

CERTIFICATE OF SERVICE

The undersigned, an attorney, hereby certifies that he filed Defendant’s Response to

Plaintiff's Motion for Preliminary Injunction and Brief in Opposition to Plaintiff's Motion for 

Preliminary Injunction with the Clerk of the Court using the ECF system on April 10, 2009, 

which will send notification of such filing to the following:

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David L. Steinberg (P32247)

THAV, GROSS, STEINWAY & BENNETT, P.C.

Co-Counsel for Plaintiff

30150 Telegraph Road, Suite 444

Bingham Farms, MI 48025

(248) 645-1700

dsteinberg@thavgross.com

Thomas E. Anderson (P32564)

Mark D. Schneider (P55253)

GIFFORD, KRASS, SPRINKLE, ANDERSON & CITKOWSKI, P.C.

Co-Counsel for Plaintiff

2701 Troy Center Drive, Suite 330

Troy, MI 48084

(248) 647-6000

tanderson@patlaw.com

mschneider@patlaw.com

Respectfully submitted,

LAW OFFICE OF STEVE SIELATYCKI

Dated: April 10, 2009 By: _s/Steve Sielatycki__________________

Steve J. Sielatycki (P66751)

Attorney for Defendant

BUSINESS ADDRESS:

516 Whites Road, Suite 4

Kalamazoo, MI 49008

(269) 978-2525

sielatycki@gmail.com

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