[Federal Register Volume 67, Number 48 (Tuesday, March 12, 2002)]
[Notices]
[Pages 11123-11141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4699]


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DEPARTMENT OF JUSTICE

Antitrust Division

[Civil No. 01-01237 GK]


Public Comments and Response on Proposed Final Judgment in United 
States v. 3D Systems Corp., et al.

    Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 
16(b)-(h), the United States of America hereby publishes below the five 
comments received on the proposed Final Judgment in United States v. 3D 
Systems Corporation, et al., Civil Action No. 01-01237 GK, filed in the 
United States District Court for the District of Columbia, together 
with the United States' response to the comments.
    Copies of the comments and response are available for inspection in 
Room 215 of the U.S. Department of Justice, Antitrust Division, 325 7th 
Street, NW., Washington, DC 20530, Telephone: (202) 514-2481, and at 
the office of the Clerk of the United States District Court for the 
District of Columbia, E. Barrett Prettyman United States Courthouse, 
Room 1225, 333 Constitution Avenue, NW., Washington, DC 20001. Copies 
of any of these materials may be obtained upon request and payment of a 
copying fee.

Constance K. Robinson,
Director of Operations.

United States District Court for the District of Columbia

[Civil No.: 1:01CV01237 (GK)]

United States of America, Plaintiff, v. 3D Systems Corporation and 
DTM Corporation, Defendants; Plaintiff's Response to Public 
Comments

    The United States, pursuant to the Antitrust Procedures and 
Penalties Act (``APPA''), 15 U.S.C. 16(b)-(h), hereby responds to 
the five public comments received regarding the proposed Final 
Judgment in this case.

I. Background

    On June 6, 2001, the United States filed a Complaint alleging 
that the proposed acquisition of DTM Corporation (``DTM'') by 3D 
Systems Corporation (``3D'') would substantially lessen competition 
in violation of Section 7 of the Clayton Act, 15 U.S.C. 18.
    The Complaint alleges that 3D and DTM are two of only three 
firms that produce industrial rapid prototyping (``RP'') systems in 
the United States. Stereolithography (``SL'') technology, utilized 
by 3D, forms a three-dimensional object through radiation from a 
liquid, photocurable material. DTM's RP systems use laser sintering 
(``LS'') technology to heat and form a sinterable powder into a 
three-dimensional form. Both 3D and DTM hold extensive patent 
portfolios related to RP systems production. These patents have 
prevented firms that sell RP systems abroad from competing in the 
United States. The Complaint alleges that the transaction will 
substantially lessen competition in the development, production and 
sale of industrial RP systems in the United States, thereby harming 
consumers. Accordingly, the Complaint asks the Court to issue (1) a 
judgment that the proposed acquisition of DTM by 3D would violate 
section 7 of the Clayton Act, 15 U.S.C. 18; and (2) a permanent 
injunction that would prevent defendants from carrying out the 
acquisition or otherwise combining their operations.
    After this suit was filed, the United States and defendants 
reached a proposed settlement that allowed 3D to complete its 
acquisition of DTM, while preserving competition in the market for 
industrial RP systems by requiring defendants to license their RP-
related patent portfolios. A Stipulation and proposed Final Judgment 
embodying the settlement were filed with the Court on August 17, 
2001.
    The proposed Final Judgment, also referred to as the ``consent 
decree,'' orders 3D and DTM to grant a license to develop, 
manufacture and sell, and to supply any support or maintenance 
services for, products under the defendants' RP patent portfolios 
within a limited field of use matching either 3D's or DTM's 
technology. The licensee, referred to as the Acquirer, must be 
approved by the United States, and must be a firm that currently 
manufactures industrial RP systems, utilizing either the LS or SL 
technology. The defendants must complete the divestiture five (5) 
days after notice of entry of the Final Judgment by the Court. The 
United States may extend the time period for divestiture for up to 
sixty (60) days. If the defendants do not complete the divestiture 
within the prescribed period, the proposed Final Judgment provides 
that the Court will appoint a trustee to accomplish the divestiture.
    The United States and the defendants have stipulated that the 
proposed Final Judgment may be entered after compliance with the 
APPA. Entry of the proposed Final Judgment would terminate this 
action, except that the Court would retain jurisdiction to construe, 
modify, or enforce the provision of the proposed Final Judgment and 
to punish violations thereof. In compliance with the APPA, the 
United States filed a Competitive Impact Statement (``CIS'') on 
September 4, 2001. The proposed Final Judgment and the CIS were 
published in the Federal Register on September 26, 2001, and the 
Washington Post during the period September 17-23, 2001. In light of 
the recent disruptions to mail delivery, the United States published 
a supplemental notice in the Federal Register on December 21, 2001 
and in the Washington Post from December 20-26, 2001, extending the 
comment period by fifteen days. The comment period has now expired, 
with the United States having received public comments from 
Aaroflex, Inc., Accelerated Technologies, Inc., Advanced 
Manufacturing & Engineering Services, Advanced Prototyping, Inc. and 
EOS GmbH Optical Systems, which are annexed hereto as Exhibits 1 
through 5.

II. Response to the Public Comments

A. Legal Standard Governing the Court's Public Interest 
Determination

    The Tunney Act directs the Court to determine whether entry of 
the proposed Final Judgment ``is in the public interest.'' 15 U.S.C. 
16(e). In making that determination, the ``court's function is not 
to determine whether the resulting array of rights and liabilities 
is one that will best serve society, but only to confirm that the 
resulting settlement is within the reaches of the public interest.'' 
United States v. Western Elec. Co., 993 F.2d 1572, 1576 (D.C. Cir.), 
cert. denied, 510 U.S. 984 (1993)(``Western Electric'').
    The Court's role under the APPA is limited to reviewing the 
remedy in relationship to

[[Page 11124]]

the violations that the United States alleges in its Complaint, and 
does not authorize the Court to ``construct [its] own hypothetical 
case and then evaluate the decree against that case.'' U.S. v. 
Microsoft Corp., 56 F.3d 1448, 1459 (D.C. Cir. 1995). Because the 
``court's authority to review the decree depends entirely on the 
government's exercising its prosecutorial discretion by bringing a 
case in the first place,'' it follows that the Court ``is only 
authorized to review the consent decree itself,'' and not to 
``effectively redraft the complaint'' to inquire into other mattes 
that the United States might have but did not pursue. Id.
    The Tunney Act does not empower the Court to reject the remedies 
in the proposed Final Judgment based on the belief that ``other 
remedies were preferable,'' Microsoft, 56 F.3d at 1460, nor does it 
give the Court authority to impose different terms on the parties. 
See. e.g., United States v. American Tel. & Tel. Co., 552 F.Supp. 
131, 153 n. 95 (D.D.C. 1982), aff'd sub nom. Maryland v. United 
States, 460 U.S. 1001 (1983) (mem.); accord H.R. Rep. No. 93-1463, 
at 8 (1974).

B. Discussion of Comments

    The most extensive of the five comments plaintiff received is 
from EOS GmbH Electro Optical Systems (``EOS''), ``a competitor of 
3D and DTM in countries other than the United States.'' EOS comment, 
p. 1. The EOS comment incorporates most, if not all, of the points 
made in the four other comments. Plaintiff will therefore address 
the arguments advanced by EOS in order, with references to the other 
four comments where appropriate.

(i) Interim Period of Monopoly

    EOS first contends that the proposed Final Judgment permits a 
significant period of monopoly for the merged entity by allowing the 
merger to close prior to the divestiture. However, plaintiff's 
investigation into industrial RP equipment customers' buying 
practices disclosed that such customers typically consider a 
purchase over a protracted period of time, often waiting a year or 
more while obtaining quotes and making comparisons. Given these 
buying habits, a potential purchaser of industrial RP equipment 
would be able to use the imminent new entry of the Acquirer pursuant 
to the proposed Final Judgment to bargain for a better price from 3D 
on its industrial RP equipment. In fact, it appears that this kind 
of bargaining is occurring. Contrary to EOS' assertion that 3D is 
currently exercising monopoly power, EOS' Attachment E demonstrates 
that, during the pendency of the proposed Final Judgment, 3D has 
found it necessary to offer significant discounts to its customers. 
This discounting practice is discussed at page 9 of the EOS comment 
and also at page 2 of the comment submitted by Advanced 
Manufacturing, and is inconsistent with EOS' assertion at page 2 of 
its comment that 3D currently enjoys ``unfettered monopoly power.''
    In accepting the consent decree, plaintiff balanced the 
likelihood of harm to consumers against the interests of the 
defendants in closing their transaction, and concluded that the time 
period specified in the decree for negotiating a divestiture and 
evaluating a proposed Acquirer was reasonable, given the 
characteristics of the market for industrial RP equipment as 
discussed above. Further, there was no need to require that the 
Divestiture Assets be held separate to ensure their viability, 
because the principal asset to be divested here is a license of 
intellectual property.

(ii) Market Saturation

    EOS next argues that the competition lost by reason of the 
merger can only be replaced by licensing the LS technology offered 
by EOS, because U.S. demand for SL systems ``has reached a point of 
saturation.'' EOS comment, p.9. Advanced Manufacturing offers the 
same observation in its comment at page 2. Were that proposition to 
be accepted, EOS would be the only firm that could qualify as an 
Acquirer within the meaning of Paragraph IV.C. of the proposed Final 
Judgment, because it is the only company in the world, other than 
3D, that manufactures LS systems. There are two other companies that 
manufacture and sell RP industrial equipment outside the United 
States, but they both offer SL technology.
    However, none of the comments disputes the facts that SL systems 
offer a competitive restraint on prices of LS systems and that 
customers might switch to SL systems in the face of a price increase 
in LS systems. In fact, EOS specifically notes at page 4 of its 
comment that since 1997 ``3D and EOS have been significant 
competitors for RP systems in Europe and Asia.''
    Moreover, plaintiff's investigation has revealed that the SL 
system is the prevailing type of industrial RP equipment sold in the 
United States. EOS itself estimates that three out of every four 
industrial RP systems in the United States use SL technology (EOS 
comment, p. 9), and sales of SL systems have been increasing. 3D's 
most recent 10-K filing with the Securities & Exchange Commission 
recites that: ``The increase in product sales over the prior year is 
due primarily to increased sales of SLA (SL) and related equipment *  
*  *. The increase in machine sales results from increased sales of 
the higher-end SLA industrial systems, especially the SLA 7000. In 
2000, we sold a total of 57 SLA 7000 systems compared to 29 in 1999. 
We expect sales of large frame machines to increase in 2001.'' 3D 
10-K report dated March 16, 2001, p. 26. In fact, less than two 
months after the quoted 10-K was filed, 3D entered into the largest 
volume-purchase agreement in the company's history with a California 
customer, pursuant to which it contracted to deliver as many as 39 
SLA 7000 systems over a two-year period. See 3D press release dated 
May 9, 2001, annexed as exhibit 6. This information runs counter to 
the assertion that demand for SL systems has reached a saturation 
point.
    As the Complaint alleges, 3D's SL technology and DTM's LS 
technology compete directly against each other. Since they are 
substitute technologies in the market for industrial RP systems, the 
competitive concerns set forth in the Complaint may be addressed by 
licensing either one.

(iii) LS Materials Monopoly

    EOS is joined by Accelerated Technologies, Advanced 
Manufacturing and Advanced Prototyping in asserting that, if the 
selected Acquirer uses SL technology, then 3D will retain its 
monopoly over the sale of LS materials in the United States. LS 
materials are the sinterable powders used by LS machines. Prior to 
the merger of DTM and 3D, DTM was the only U.S. supplier of LS 
materials. 3D succeeded to that sole supplier position through its 
acquisition of DTM. The Complaint in this case sought no relief with 
respect to LS materials, because the merger did not lessen 
competition with respect to LS materials; rather, it left the status 
quo unchanged. As the comments point out, if EOS is selected as the 
Acquirer, then there will be a second supplier of LS materials in 
the United States, and competition will have been created where none 
existed before. However, since 3D and DTM did not compete in the 
provision of LS materials, those materials cannot properly be 
addressed in the context of a remedy designed to resolve the 
competitive harm arising out of the merger of competing RP systems 
firms.

(iv) Aaroflex Patent Claims

    Relying upon Aaroflex's comment, EOS next asserts that its LS 
technology should be favored over SL technology because the latter 
may face patent entry barriers. The ``barriers'' EOS cites are 
claims by Aaroflex that certain 3D patents on SL technology are 
invalid. In February 1997, 3D sued Aaroflex for patent infringement. 
Apparently as a result of this lawsuit, Aaroflex has never 
commercialized its technology. It has, however, asserted in that 
proceeding that certain 3D patents are invalid. The Aaroflex claims 
have not been treated as ``barriers'' by 3D, since it continues to 
commercialize its technology, and the brief discussion of the 
Aaroflex litigation in 3D's 10-K report does not even mention 
Aaroflex's invalidity claims. 3D 10-K report dated March 16, 2001, 
p. 12. Moreover, 3D is prepared to warrant to the Court and the 
Acquirer that it can ``convey all intellectual property included in 
the Divestiture Assets free and clear of any encumbrances *  *  *.'' 
Proposed Final Judgment, Paragraph IV.D.

(v) Teijin Seiki/CMET Letter

    The EOS comment includes as an attachment a copy of a letter EOS 
received from Teijin Seiki/CMET, a Japanese company that is a 
potential Acquirer. EOS construes the letter as an invitation to 
collude, either regarding the bidding process for the Divestiture 
Assets or regarding competition generally, and argues that this 
improper conduct should disqualify Teijin Seiki/CMET as a potential 
Acquirer. This is not a comment on whether entry of the proposed 
Final Judgment is in the public interest. Rather, it is a comment on 
whether plaintiff should approve Teijin Seiki/CMET as an appropriate 
buyer. Plaintiff agrees that, in the event Teijin Seiki/CMET is 
presented to it as the proposed Acquirer, plaintiff should weigh the 
letter and its meaning in exercising its discretionary authority to 
approve the Acquirer under Paragraph IV.N. of the proposed Final 
Judgment.

(vi) Pending Litigation Between EOS and 3D

    In December 2000, EOS filed suit against DTM, seeking damages 
for infringement of certain 3D patents which 3D had licensed to EOS 
in 1997. The license agreement between

[[Page 11125]]

EOS and 3D contains what EOS characterizes as a ``Non-Suit 
Provision,'' which bars EOS from asserting infringement claims 
against 3D based upon the patents 3D licensed to EOS ``at any time, 
for any reason, during the term of the License Agreement.'' See 
Attachment A to EOS comment. Following consummation of the merger 
between 3D and DTM, 3D filed a motion invoking the Non-Suit 
Provision to prevent EOS from collecting damages for infringement 
after the date of the merger, because the allegedly infringing 
products are now being sold by 3D instead of DTM.
    Citing United States v. Microsoft Corporation, 56 F.3d 1448 
(D.C. Cir. 1995), EOS contends that the Court should take 3D's 
motion into account in making its public interest determination 
under 15 U.S.C. 16(e)(2) because ``[a]mong the factors that the 
Court is to consider in conducting its public interest inquiry is 
whether entry of the proposed Final Judgment `will result in any 
positive injury to third parties.' '' EOS comment at p. 11, quoting 
Microsoft Corporation, 56 F.3d at 1461, n.9. However, whatever 
``positive injury'' EOS may suffer results not from the proposed 
Final Judgment but from the broad language of the Non-Suit 
Provision. The meaning and effect of the contractual relationships 
between 3D and EOS are properly left to the court before which those 
issues are now pending.

(vii) Austin Plant and Service Personnel

    EOS mistakenly asserts, at page 13 of its comment, that the 
Divestiture Assets include ``an option for the Acquirer to purchase 
DTM's plant located in Austin, Texas,'' drawing from this an 
inference that the Department misunderstands fundamental concepts of 
the RP industry. In fact, the proposed Final Judgment merely recites 
that the plant can be included among the assets to be conveyed, 
meaning that the Acquirer may, at its option, assume whatever 
interest DTM had in the plant: owned property may be conveyed by 
purchase, and leased property may be conveyed by a lease assumption. 
EOS misconstrues the CIS reference to an ``option to purchase the 
[DTM] plant'' to mean the full assumption of ownership, when in 
reality it means the Acquirer has the option to ``purchase'' 3D's 
interest in the plant, whatever form that interest might take.
    EOS also suggests that the consent decree should have done more 
to facilitate the hiring of service personnel from 3D by the 
Acquirer. The provisions contained in Paragraph IV.I. of the 
proposed Final Judgment adequately protect the Acquirer's ability to 
recruit 3D service personnel. That paragraph requires defendants to 
waive any non-compete clauses in agreements with present or former 
employees, and prohibits defendants from interfering with any 
negotiations by the Acquirer to employ any of defendants' present or 
former employees for a period of two years. Further, each firm that 
manufactures RP systems outside of the United States currently 
employs its own service personnel, and has developed its own 
programs and methods for training them on its own machines. It is 
not, therefore, a foregone conclusion that the Acquirer would rely 
upon recruitment of 3D personnel, trained on 3D machines, to build 
up its U.S. service network.

(viii) Second Comment Period

    EOS suggests that there be a second comment period in this case, 
following the proffer of a proposed Acquirer by 3D but preceding 
plaintiff's approval of an Acquirer. EOS comment, p. 15. Plaintiff 
objects to the proposed second round of comments for three principal 
reasons.
    First, such a procedure would be inconsistent with procedures 
that courts have routinely applied in reviewing proposed Final 
Judgments. Since the Tunney Act was enacted in 1974, the United 
States has negotiated hundreds of consent decrees in merger cases. 
In each instance, the public had an opportunity to comment upon the 
terms of the proposed Final Judgment. Often the court has proceeded 
to review and then enter the proposed Final Judgment before the 
acquirer of the divestiture assets has been selected, relying upon 
the United States to monitor the divestiture process. Plaintiff has 
been unable to identify a single instance in which a court deferred 
entry of a proposed Final Judgment that was otherwise in the public 
interest in order to receive a second round of comments regarding 
the divestiture selection process. EOS has provided the Court with 
no reason to deviate from the procedures that are routinely followed 
in other cases subject to the Tunney Act.
    Second, such a procedure is unnecessary given the incentives and 
ability plaintiff has to assure that divestitures are accomplished 
in a manner that protects competition. After concluding that the 
proposed transaction between 3D and DTM would be anticompetitive, 
plaintiff agreed to the proposed Final Judgment as a way to preserve 
the competition that existed prior to 3D's acquisition of DTM. 
Accordingly, the proposed Final Judgment is designed to ensure that 
the Acquirer of the license will compete effectively against 3D and 
others in the industry, and that plaintiff conducts a thorough 
investigation before approving any particular Acquirer.
    The proposed Final Judgment contains provisions that (1) give 
the United States sole approval of the Acquirer of the license, 
Paragraph IV. A., (2) set forth the standards that the United States 
applies in evaluating proposed purchasers, paragraph IV. N., and (3) 
require defendants to provide information to plaintiff about the 
process undertaken to select an Acquirer, as well as requiring 
information from defendants and the prospective purchaser for 
evaluation of the purchaser in Section VI. After obtaining notice 
that defendants have entered into a proposed transaction with a 
prospective purchaser, plaintiff will investigate the transaction 
and prospective purchaser, reviewing the selection process and 
analyzing the managerial and financial ability of the purchaser. The 
proposed Final Judgment gives plaintiff considerable access to 
details, often highly confidential, about prospective purchasers. 
Without such access, comments on specific proposed purchasers will 
lack the information necessary to aid an informed decision. In sum, 
the proposed Final Judgment's provisions empower the United States 
to review and approve the proposed Acquirer of the license, and with 
these provisions, the United States is able to ensure that the 
Acquirer is capable of competing effectively in the relevant market.
    Third, a second round of comments would itself create problems 
that might make divestitures in antitrust cases more difficult to 
accomplish promptly. It would potentially delay the achievement of 
effective remedies to anticompetitive mergers by delaying entry of 
the proposed Final judgment, and extending the divestiture deadlines 
contained therein. Any needless delay in the consummation of 
divestitures would deny the public the benefits of the competition 
contemplated by the proposed Final Judgment. A second round of 
public comments would also risk involving the Court in an inquiry 
that is not envisioned by the Tunney Act. Courts have repeatedly 
held that it is not within the ``public interest'' standard of the 
Tunney Act to determine the ``best'' remedy. See Western Electric, 
993 F.2d at 1576.
    Finally, in this case, a second comment period is plainly 
unnecessary. There are only three firms in the world that qualify as 
potential Acquirers, and the comments plaintiff has received 
demonstrate that industry participants are familiar with the firms 
and their technologies. Any issues pertaining to a particular 
potential Acquirer could and should have been addressed in the 
comment period provided by law, as EOS itself did in its discussion 
of the Teijin Seiki/CMET letter.
    For all of the foregoing reasons, the Court should reject EOS' 
proposal for a second round of public comments.

C. Recommendations Made in the Comments

    Significantly, none of the five comments recommends rejection of 
the proposed Final Judgment. In their respective comments, Aaroflex, 
Accelerated Technologies, Advanced Manufacturing and Advanced 
Prototyping all recommend that the LS technology be licensed instead 
of the SL technology, and offer observations about perceived 
advantages of the LS technology and perceived disadvantages of the 
SL technology. Plaintiff will consider and weigh all such 
observations when exercising its discretionary authority to approve 
the Acquirer of the Divestiture Assets.
    Advanced Prototyping also recommends that the consent decree be 
``amended in some fashion'' to address the possibility that the 
Acquirer may not compete aggressively or maybe unsuccessful. 
Advanced Prototyping comment, p.3. However, the decree already 
directly addresses these concerns by providing that the Acquirer 
must be a ``firm that currently manufacturers RP industrial 
equipment'' which, in plaintiff's sole discretion, ``has the intent 
and capability (including the necessary managerial, operational, 
technical and financial capability) of competing effectively * * 
*.'' Proposed Final Judgment, Paragraphs IV. C&N. Moreover, in the 
unlikely event that the entrant fails, the license is transferable.
    EOS ``recommends that DOJ or the Court modify the proposed Final 
Judgment so that a new competitor will be permitted to sell laser 
sintering (LS) RP systems and material

[[Page 11126]]

in the United States, without regard to whether 3D licenses its 
stereolithography [SL] technology.'' EOS comment, p. 16. The 
principal difficulty with the EOS recommendation is that it is 
inconsistent with the theory of liability pleaded in the Complaint 
and the evidence that supports that liability. The Complaint alleges 
that ``[t]here are only three companies that develop, manufacture, 
and sell industrial RP systems in the United States'' (para.20), and 
that 3D, with its SL technology, and DTM, with its LS technology, 
``compete directly against each other in the development, 
manufacture and sale of industrial RP systems and materials.'' 
(para.21). Because the merger reduces the number of U.S. competitors 
from three to two, the consent decree addresses that competitive 
concern by listing patent entry barriers so that another competitor 
using either the SL or LS technology can enter the U.S. market, 
thereby restoring the number of competitors to three.
    To the extent EOS assets that a divestiture of LS technology is 
needed to preserve competition for industrial RP systems, it 
overlooks the weight of the evidence that SL and LS compete directly 
against each other. Consistent with the Complaint, and indeed with 
the history of competition between 3D (an SL firm) and DTM (an LS 
firm), the license of either SL or LS technology will preserve 
competition in the industrial RP systems market. Accordingly, 
plaintiff submits the EOS' recommendation to modify the proposed 
Final Judgment to require the licensing of LS technology must be 
rejected because the Complaint in this case offers no basis for its 
implementation.

III. Conclusion

    None of the comments received by plaintiff in this case takes 
the position that the proposed Final Judgment is not in the public 
interest within the meaning of 15 U.S.C. 16(e), and that it should 
accordingly be rejected by the Court. Instead, the comments offer 
suggestions for modification of the proposed Final Judgment or 
observations about which company might make the most suitable 
Acquirer in order to remedy the harm alleged in the Complaint.
    After careful consideration of the comments, the United States 
has affirmed its conclusion that entry of the consent decree will 
provide an effective and appropriate remedy for the antitrust 
violation alleged in the Complaint, and is in the public interest. 
The proposed modifications that seek a different remedy are 
inconsistent with the theory of the Complaint in this case, and must 
therefore be rejected. The observations regarding factors that 
should be considered in determining whether a proposed Acquirer has 
the intent and capability of competing effectively in the business 
of selling and servicing RP Industrial Equipment can and will be 
taken into account when the United States fulfills its 
responsibilities to approve a buyer under Paragraph IV.N. of the 
proposed Final Judgment.
    Accordingly, the United States will move the Court to enter the 
proposed Final Judgment after the public comments and this Response 
have been published in the Federal Register as 15 U.S.C. 16(d) 
requires.

    Dated: February 15, 2002, Washington, DC

Dando B. Cellini,
Stephen A. Harris,
U.S. Department of Justice, Antitrust Division, Litigation II 
Section, 1401 H Street, NW., Suite 4000, Washington, DC 20530, (202) 
307-0829.

Certificate of Service

    I hereby certify that I caused a copy of the foregoing Response 
to Public Comments to be served by mail and facsimile transmission, 
this 15 day of February, 2002, upon the following counsel of record 
for defendant 3D Systems Corporation:

Charles E. Biggio, Esq., Akin, Gump, Strauss, Hauer & Feld LLP, 590 
Madison Avenue, New York, NY 10022, (212) 872-1010, Fax: (212) 407-
3210.
David Donohoe, Esq. (#3426), Akin, Gump, Strauss, Hauer & Feld LLP, 
1333 New Hampshire Avenue, NW, Washington, DC 20036, (202) 887-4000, 
Fax: (202) 887-4288.
John A. Herfort, Esq., Gibson, Dunn & Crutcher LLP, 200 Park Avenue, 
New York, NY 10166, (212) 351-3832, Fax: (212) 351-3832.

Stephen A. Harris,
U.S. Department of Justice, Antitrust Division, Litigation II 
Section, 1401 H Street, NW., Suite 3000, Washington, DC 20530 (202) 
514-4901.
November 19, 2001.

Via Overnight Mail and Facsimile

J. Robert Kramer II, Chief, Litigation II Section, Antitrust 
Division, U.S. Department of Justice, 1401 H Street, NW., Suite 
3000, Washington, DC 20530.

Re: Comment on Settlement Agreement Reached in United States v. 3D 
Systems Corporation and DTM Corporation

Dear Mr. Kramer:

    As the Chairman and Chief Executive Officer of Aaroflex, Inc., I 
submit the following comments on the settlement terms agreed to by 
the Department of Justice (``DoJ'') to settle its case against the 
merger of 3D Systems, Inc. and DTM Corporation.
    In 1995, DuPont granted North American rights under its 
stereolithography patents to Aaroflex. Aaroflex continued to develop 
the technology and began to offer an advanced sterolithography 
system for sale in the United States. In February of 1997, 3D 
Systems sued Aaroflex alleging that Aaroflex's very advanced 
stereolithography system infringed six of 3D Systems' patents. 
Specifically, 3D Systems asserted that Aaroflex's stereolithography 
products produced under the DuPont patents infringe the following 
patents: U.S. Patent Numbers 4,929,402; 5.174,931; 5,059,359; 
5,137,662; 5,184,307; and 5,571,471. 3D Systems subsequently added 
two other patents, U.S. Patent Numbers 4,999,143 and 5,902,537. 3D 
Systems also removed one of the patents, U.S. Patent Number 
5,571,471. Aaroflex has vigorously defended itself, and maintains 
that its products do not infringe any patents of 3D Systems. In 
fact, Aaroflex maintains that the patents being asserted by 3D 
Systems are invalid. Aaroflex's invalidity claims are presently 
pending in the action 3D Systems, Inc. v. Aarotech Laboratories, 
Inc. et al., United States District Court, Central District of 
California, Case No. 97-0231 AJW.
    In reviewing the settlement agreement among the DoJ, 3D Systems, 
and DTM, I noticed that 3D Systems and DTM have warranted ``that 
they have the authority to convey all intellectual property included 
in the Divestiture Assets free and clear of any encumbrances. . . 
.'' Section IV(D) of the Settlement Agreement (emphasis added). 
Notably, each one of the patents subject to Aaroflex's invalidity 
claims is ``included in the Divestiture Assets'' as defined in the 
settlement agreement and identified in Appendix 1 to that agreement. 
Those patents are clouded by Aaroflex's invalidity claims. As a 
result, 3D Systems/DTM cannot convey them ``free and clear of any 
encumbrances.'' On the contrary, should 3D Systems/DTM license its 
stereolithography patents to, for example, Teijin Seiki, then 
Aaroflex would assert its rights under the DuPont patents against 
Teijin Seiki (or any other licensee of 3D Systems' Stereolithography 
patents) if the licensee attempts to sell stereolithography 
equipment in the United States.
    For your background, Teijin Seiki acquired the Asian rights to 
DuPont's stereolithography patents about two years before Aaroflex 
acquired its North American rights under the DuPont patents. 3D 
Systems filed a patent infringement action against Teijin Seiki in 
Osaka, Japan in 1997--the same year in which 3D Systems brought its 
patent infringement action against Aaroflex. Given that they were 
both licensees under DuPont's stereolithography patents, Aaroflex 
and Teijin Seiki cooperated in asserting their defenses against the 
patent infringement actions of 3D Systems. Teijin Seiki successfully 
asserted an invalidation claim against one of 3D System's patents. 
3D Systems appealed that decision. Teijin Seiki has since acquired a 
company called NTT-Data CMET Inc. I believe that 3D Systems and CMET 
had entered into a cross-licensing agreement previously to settle 
patent litigation. Thus, as a result of its acquisition of CMET, 
Teijin Seiki effectively became a party to that cross licensing 
agreement with 3D. Based upon that cross-licensing agreement, I 
believe that 3D Systems has since settled its Japanese litigation 
with Teijin Seiki. Since its acquisition of CMET, Teijin Seiki will 
no longer cooperate with Aaroflex in defending the action brought by 
3D Systems.
    In order to comply with the DoJ settlement terms, I expect 3D 
Systems to license its U.S. Stereolithography patents to Teijin 
Seiki/CMET. Such a licensing agreement will be a direct byproduct of 
the cross-licensing agreement between 3D Systems and Teijin Seiki/
CMET and I believe it would be entered into with the intention to 
hinder Aaroflex's ability to succeed in its litigation with 3D 
Systems.
    The United States District Court for the District of Columbia 
should modify the proposed Final Judgement to require that 3D 
Systems license (for use) DTM's sintering patents. The entry of the 
settlement terms as they currently exist would: (1) effectively 
encourage infringement of Aaroflex's patent rights under DuPont's 
patents; and (2) ensure

[[Page 11127]]

that any licensee of 3D Systems's stereolithography patents that 
attempts to sell products in the United States will have to defend 
itself against the assertion of Aaroflex's patent rights.
    If you would like to discuss these comments, please contact me.

Yours truly,

Albert Young,
Chairman & Chief Executive Officer, Aaroflex, Inc., 8511 Rixlew 
Lane, Manassas, VA 20109, (703) 573-0690.
J. Robert Kramer II, Chief Litigation II Section, Antitrust 
Division, U.S. Department of Justice, 1401 H Street, NW., Suite 
3000, Washington, DC 20530.

Dear Mr. Kramer,

    I am writing to you in regards to the United States V. 3D 
Systems Corporation proposed final judgment and competitive impact 
statement. (civil action no. 1:01CV01237)
    I am the General Manager of a leading rapid prototyping service 
bureau, Accelerated Technologies, Inc., and have been in this type 
of business since 1989. We utilize both the SLS and SLA technologies 
that 3D Systems now offers. Of most interest to ATI is the 
availability of materials for both processes. Currently, there are 
several vendors besides 3D Systems that sell resin for the SLA 
process but the only materials available for SLS are those sold by 
3D Systems. These SLS materials are sold at a substantially higher 
price that what they could be purchased for from foreign 
competition. 3D Systems has made it clear that they would seek legal 
action against any customer of theirs that buys material from anyone 
other than themselves. We are being forced to pay 40% more for 
materials than our foreign competitors and are therefore unable to 
compete in most foreign markets.
    It is also our belief that the SLS technology has the most 
potential for growth, especially in the area of Rapid Manufacturing. 
The availability of materials with advanced mechanical properties, 
such as Nylon and metal, make SLS the logical choice for this type 
of application. There is currently SLS equipment available that will 
produce direct metal parts for manufacturing that ATI is unable to 
acquire because of 3D's monopoly.
    It is our understanding that 3D Systems is required to license 
either the SLS or SLA process to a competitor to satisfy the 
aforementioned final judgement. If that license were to be for the 
SLA process, we would see little change in current conditions. There 
would still be multiple vendors selling SLA resins at competitive 
prices and 3D would maintain their monopoly of SLS materials. It 
would also be very difficult for any SLA vendor to penetrate the 
strong market share that 3D holds.
    We believe that a license granted for the SLS process would 
encourage more competition and would be of greater benefit to the 
entire industry.
    Please feel free to call me with any questions.

    Dated: November 12, 2001.

Regards,

Mike Durham,
General Manager.

November 21, 2001.
J. Robert Kramer II, Chief, Litigation II Section, Antitrust 
Division, U.S. Department of Justice, 1401 H Street, NW, Suite 3000, 
Washington, DC 20530.

Re: Public Comment on the Settlement of United States v. 3D Systems 
Corporation and DTM Corporation

Dear Mr. Kramer,

    I am the president of Advanced Manufacturing & Engineering 
Services, hereinafter referred to as Advanced. Advanced is a 
corporation located in Nevada, Iowa providing design engineering, 
rapid prototyping and plastic injection molding services to its 
customers. I wish to make the following comments on the proposed 
Final Judgement in the Department of Justice's case against the 
merger of 3D Systems and DTM Corporation.
    In order to promote competition in the United States rapid 
prototyping industry, the proposed Final Judgement must be amended 
to require that 3D license its newly acquired selective laser 
sintering technology. As I understand it, the proposed Final 
Judgement permits 3D to choose which technology (stereolithography 
or selective laser sintering) it will license. This a mistake. Based 
upon the present conditions in the United States RP industry, it is 
a certainty that 3D will license its stereolithography technology, 
and by doing so 3D will be able to maximize its market power.
    First, the rapid prototyping market in the United States for 
stereolithography technology has reached a point of saturation. I 
would estimate that three out of every four industrial rapid 
prototyping system in operation in the United States utilizes 
stereolithography technology. As a result, for the foreseeable 
future, the growth potential for stereolithography systems in the 
United States is very low. As evidence of this state of market 
saturation, one only need to look at the present rebate program 
offered by 3D. 3D is offering a rebate of up to $200,000.00 on its 
largest stereolithography system, a 29% reduction. It is readily 
apparent that 3D is experiencing a significant decrease in sales of 
its stereolithography systems. A newly licensed stereolithography 
firm would have to contend with this state of market saturation as 
well as with 3D's installed based of customers. Given that, its 
prospects for any measurable success would be slim. More likely, the 
newly licensed stereolithography would have little to no pro-
competitive effect on the market for industrial rapid prototyping 
systems in the United States.
    On the other hand, there is a substantial opportunity for growth 
in the United States market for industrial rapid prototyping systems 
employing selective laser sintering (SLS) technology. SLS prototypes 
are more durable and have a larger range of applications due to the 
variety of materials available. SLS is also moving in the direction 
of rapid manufacturing, meaning companies will not only produce 
prototypes, but finished products using this technology. Second, 3D 
is now the only supplier of sintering powder material in the United 
States. By licensing its technology to a stereolithography firm, 3D 
will maintain this monopoly position and continue to harm U.S. 
competition in the rapid prototyping industry. 3D currently charges 
extremely high prices for the powder material used in the SLS 
process. If allowed the powders could be purchased direct from the 
powder manufacturer for as little as $10.00/lb, 3D charges $65.00/
lb. If competition were realized the cost of this material would 
level out to a more reasonable level. There is evidence of this in 
the European market where 3D competes with EOS. The same material 
there sells at $35.00/lb. This price differential in powder material 
does not allow U.S. companies the opportunities to compete on a 
global scale.
    In conclusion, licensing a stereolithography firm will not 
promote competition in the United States rapid prototyping industry. 
Instead, it would only fortify 3D's present monopoly position. The 
proposed Final Judgement should be modified to require that 3D 
license its laser sintering patents to another company currently 
manufacturing and selling commercial SLS equipment. Presently EOS is 
the only other laser sintering firm in the world. Licensing EOS is 
the only way to replace the competition that has been lost by the 
merger of 3D and DTM.
    I am willing to discuss these comments with you if you have any 
questions about the information that I have provided.

Sincerely,

Daryl Michael,
President, Advanced Manufacturing & Engineering Services.

Advanced Prototyping, Inc.

November 21, 2001.
J. Robert Kramer II, Chief, Litigation II Section, Antitrust 
Division, U.S. Department of Justice, 1401 H Street, NW., Suite 
3000, Washington, DC 20530.

Re: Comment on Proposed Final Judgement in United States v. 3D Systems 
Corporation and DTM Corporation

Dear Mr. Kramer:

    I write in response to the invitation for the submission of 
comments on the terms of the proposed final judgement in United 
States v. 3D Systems Corporation and DTM Corporation. I am the 
president of Advanced Prototyping, Inc. (``API''). API operates both 
stereolithography (``SL'') and laser sintering (``LS'') machines, 
which the Department of Justice refers to as rapid prototyping 
(``RP'') industrial equipment. API is an RP service bureau. As the 
DOJ is aware, RP ``service bureaus'' produce prototypes of molds, 
models, prototypes, as well as other three-dimensional objects at 
their customer's request. API utilizes powders (``LS material'') and 
resins (``SL material'') in conjunction with its LS and SL RP 
equipment to produce those objects for its customers. API provides 
RP services to commercial customers in the United States and Canada. 
API has been in business for 5 years and has over 400 customers. 
Service bureaus, like API, account for a significant amount of 3D's 
and DTM's sales of RP equipment as well as the sales of LS material 
and SL material in the United States.

[[Page 11128]]

    Since the announcement of the proposed merger of 3D Systems, 
Inc. (``3D'') and DTM Corporation (``DTM''), API has been concerned 
about the adverse effects that the combination would have on the RP 
industry in the United States because of the elimination of 
competition between the SL and LS RP technologies. API was concerned 
that, as a result of the transaction, the merged company would have 
the ability to significantly raise the prices of its RP equipment as 
well as the LS material and the SL material (collectively ``RP 
materials'') used in the RP industrial equipment market to produce 
the three-dimensional objects. Additionally, API believed that the 
combination of 3D and DTM would hinder innovation in the RP 
industry. API was pleased to learn that the DOJ was similarly 
troubled by the proposed combination and filed a lawsuit to prevent 
it from occurring. However, after reviewing the proposed settlement 
terms agreed to by the DOJ, API remains concerned.
    From its review of the proposed Final Judgement, API understands 
that the DOJ agreed to settle its lawsuit based upon a commitment 
from 3D to license (for use) either its LS-related patents or its 
SL-related patents to a company that is currently in the business of 
manufacturing and selling such RP equipment--leaving it to 3D to 
select which technology will be licensed. All such companies are 
located outside of the United States. Yet, the proposed Final 
Judgement does not seem to include any terms designed to ensure that 
the licensee successfully enters the United States RP market. 
Additionally, the DOJ apparently permitted the proposed transaction 
to close prior to the required licensing being finalized. The merger 
was completed in August of this year, and as a result the merged 
entity is presently enjoying the monopoly in the United States 
market for RP equipment and RP materials that the DOJ sought to 
eliminate.
    Unfortunately, the proposed Final Judgement does not adequately 
address the adverse competitive effect of the combination of 3D and 
DTM. API's most significant concerns with the terms of the proposed 
Final Judgement are the following: (1) There remains a possibility 
of the permanent loss of a competing supplier of LS RP equipment and 
LS material in the United States; (2) it does not ensure that the 
licensee will successfully enter the United States; and (3) the 
monopoly position of 3D in the United States LS material market may 
remain undisturbed.

A Competing Supplier of LS RP Equipment and LS Material May Be Lost

    As a result of the combination of 3D and DTM, the consumers in 
the United States RP industry have lost a competitive independent 
source of LS RP equipment and LS material. Nevertheless, the 
proposed Final Judgement does not require that 3D license its LS 
technology, but instead it permits 3D the option of licensing its SL 
technology. If 3D licenses its SL technology, then the competition 
in United States that existed prior to the merger will have been 
permanently lost. Moreover, after granting a license under its SL 
patents, 3D (an SL company) will undoubtedly aggressively promote 
its SL technology even more in an attempt to maintain its strong 
position in the United States markets for SL RP equipment and SL 
material. Meanwhile, 3D can be expected to give little attention to 
its newly-acquired LS business. Such lack of attention would 
necessarily harm U.S. consumers of LS RP equipment and LS material.
    LS technology is generally regarded in the RP industry as having 
greater growth potential than SL technology. The LS technology 
produces a more durable and functional object, while objects 
produced through SL technology are more malleable. Also, the 
accuracy of the LS technology has been greatly improving over the 
last several years. The LS technology and the LS material are closer 
to achieving what is expected to be the future of the United States 
RP industry: Rapid manufacturing. Without an independent entity 
pushing for innovative developments in LS technology, 3D will be 
allowed to dictate the pace of that innovation. Given that 3D would 
be competing with its SL licensee and otherwise occupied with 
maintaining its SL market position, it will have no incentive to 
take any action (such as efforts to develop its LS technology) that 
may further erode its strength in the United States SL market. 
Consequently, API expects that innovative activity in United States 
in the field of LS technology can be expected to slow to a crawl or 
stop completely unless 3D is required to license its LS technology 
to an independent entity. If 3D is not required to do so, then 
United States customers in the RP industry will undoubtedly be 
harmed by the lack of competition from an independent entity that 
has the ability and incentive to conduct research and development in 
the field of LS technology.

Uncertainty of the Proposed Licensing Solution

    The proposed Final Judgement makes no provision for the 
possibility that the licensee may not aggressively undertake to 
exercise its rights under the license, or the possibility that the 
licensee's attempt to enter the United States RP industry is 
unsuccessful. In the event that either one of these possibilities 
becomes a reality, the settlement terms will be effectively 
meaningless and 3D will continue to have the monopoly they presently 
have. The proposed Final Judgement should be amended in some fashion 
to account for the occurrence of either contingency. There should be 
some oversight of the selected licensee's operations in the United 
States, and a requirement that 3D license their relevant technology 
to another company if the initial licensee does not successfully 
enter the United States within a certain time period. We suggest 
that if the licensee does not make at least $20 million of sales in 
the United States over its first complete year of operations, then 
the DOJ should revisit the situation and decide if 3D should license 
its technology to another company, in order to promote competition.
    Moreover, if 3D were to license its SL patents instead of its LS 
patents then the likelihood of the licensee failing to successfully 
enter the United States market would increase. Any SL licensee will 
be faced with the formidable task of penetrating 3D's well-
established base of SL customers in the United States. The SL 
licensee would have to expend considerable time and resources before 
even having a hope of experiencing any success in the United States.

3D Is Free to Keep Its Monopoly on LS Material

    The sale of RP materials represents a substantial portion of the 
costs for customers in the RP industry. For example, since we 
started our business API has spent 10% of our gross income on 
material. Following the merger of 3D and DTM, 3D is now one of two 
SL material suppliers in the United States. Should 3D choose to 
license its SL patents and not its LS patents, then 3D's monopoly of 
the United States market for LS material will continue. API believes 
that 3D will take aggressive action to exploit its position in the 
United States market for RP materials.
    The District Court and the DOJ should be aware of the actions 
that 3D has taken since the settlement with the DOJ was reached and 
the merger was closed. Since that time, 3D has acquired RPC Ltd. 
(previously an independent Swiss SL material manufacturer and 
developer). Also, 3D's distribution and development agreement with 
Vantico Inc. (a manufacturer and developer of RP SL material) has 
terminated. 3D is currently involved in a dispute with Vantico about 
whether Vantico can sell its SL materials in the United States 
independent of 3D. Through those two actions, 3D has reduced the 
number of sellers of SL material in the United States from three to 
two. API expects to be paying more in the near future for the SL 
material that it must purchase in order to run its SL machines. When 
coupled with 3D's monopoly in the LS material market, United States 
consumers of RP material are harmed even further. In order to lessen 
the harm to competition in the United States RP materials market, 
the proposed Final Judgement should be modified to require that 3D 
license its patents that cover LS material regardless of whether it 
grants any license under its SL patent pursuant to its settlement 
with the DOJ.

Conclusion

    The DOJ or the United States District Court for the District of 
Columbia should modify the proposed Final Judgement to require the 
licensing of 3D's LS technology in order to encourage innovation in 
SL technology, and to maintain a competing source of SL RP equipment 
and material. The proposed Final Judgement should also be modified 
so as to include terms that do more to ensure the successful entry 
of the licensee of 3D's RP technology into the United States RP 
market.
    Please contact me if you have any questions about the 
information that API has provided in these Comments.

Sincerely yours,

Ernie Guinn,
President, Advanced Prototyping, Inc., 2269 Star Court, Rochester 
Hill, MI 48309, (248) 853-8256.


[[Page 11129]]


November 21, 2001.

Via Courier and Facsimile

J. Robert Kramer II, Chief, Litigation II Section, Antitrust 
Division, U.S. Department of Justice, 1401 H Street, NW., Suite 
3000, Washington, DC 20530.

Re: Proposed Final Judgment in United States v. 3 D Systems 
Corporation and DTM Corporation

Dear Mr. Kramer:

    EOS GmbH Electro Optical Systems (``EOS'') submits the following 
comments to the U.S. Department of Justice, Antitrust Division 
(``DOJ'' or the ``Antitrust Division''), regarding the settlement 
agreement reached between the Antitrust Division and 3D Systems 
Corporation (``3D'') and DTM Corporation (``DTM'') to settle DOJ's 
antitrust lawsuit against the merger of 3D and DTM. United States v. 
3D Systems and DTM Corp., Civil Action No. 1:01CV01237 (D.D.C. filed 
June 6, 2001). EOS is a competitor of 3D and DTM in countries other 
than the United States, and EOS is a knowledgeable industry 
participant.

Introduction

    The proposed Final Judgment has already permitted the merger of 
3D and DTM (the ``Merger'') to occur, subject to provisions of the 
proposed Final Judgment, which DOJ asserts will adequately cure the 
harm to competition in the United States that the Merger has caused. 
However, EOS has serious concerns that the proposed Final Judgment 
does not adequately address the competitive problems that DOJ 
identified in its Complaint.
    First, the proposed Final Judgment permits a significant period 
of monopoly for the combined 3D and DTM. By allowing the merger to 
be consummated prior to any divestiture being made, DOJ has 
permitted the creation, for at least a significant interim period, 
of the very monopoly that DOJ had challenged in its Complaint. 3D's 
unfettered monopoly power since the merger is raising additional 
barriers for potential new competitors to enter into in the market 
for industrial rapid prototyping (``RP'') systems and materials in 
the United States. Any potential Acquirer of the Divestiture Assets 
will face a thoroughly entrenched monopolist by the time it possibly 
could begin U.S. sales.\1\
---------------------------------------------------------------------------

    \1\ To extent possible, EOS uses terms as defined in the 
Complaint and the proposed Final Judgment. Capitalized terms denote 
the definitions in the Complaint and the proposed Final Judgment, 
unless otherwise indicated.
---------------------------------------------------------------------------

    Second, as a result of the Merger, the United States industrial 
RP systems and materials markets have lost the competition supplied 
by an independent laser sintering firm. The Antitrust Division's 
proposed Final Judgment, however, does not require that the specific 
type of competition that was lost be replaced. Rather, the proposed 
Final Judgment allows the merged parties to determine which of two 
differing technologies may be divested. Moreover, DOJ seems to have 
overlooked the fact that any Acquirer of the Divestiture Assets 
related to stereolithography, one of the two relevant technologies, 
may still encounter significant patent barriers controlled by third 
parties.
    Third, DOJ did not properly consider the harm that the proposed 
Final Judgment is causing to third parties. EOS' ability to litigate 
certain intellectual property rights that it owns is being harmed as 
a result of the Merger, which the proposed Final Judgment has 
permitted.
    Finally, the proposed Final Judgment contains several provisions 
that indicate that the Antitrust Division does not correctly 
understand what is required to begin competing in the industrial RP 
systems and materials market in the United States.
    As a result of these infirmities in the proposed Final Judgment, 
EOS requests that DOJ or the Court modify the proposed Final 
Judgment. Specifically, EOS requests that the proposed Final 
Judgment be modified in order to require that 3D license its laser 
sintering patents regardless of whether 3D licenses its 
stereolithography patents. Also, EOS requests that the proposed 
Final Judgment be modified in order to prevent its entry from 
inflicting further injury on EOS.
    In order to ensure that the issues presented by the terms of the 
proposed Final Judgment are adequately considered, EOS requests that 
the Court hold a hearing to evaluate whether the Antitrust Division 
has sufficiently protected the public interest in reaching the 
settlement agreement reflected in the proposed Final Judgment.

I. The RP Industry

A. RP Industry Background and Description of EOS

    In its Complaint, DOJ accurately describes the fundamental 
aspects of the RP industry so that the public and the Court are able 
to understand the competitive effects of the Merger. To restate 
briefly these fundamental aspects, RP systems utilize ``computers 
and computer automated equipment to rapidly produce'' prototypes, 
molds, models, and other three-dimensional objects. See Complaint 
para. 10. The combined 3D/DTM manufactures and sells industrial RP 
systems that utilize the two most sophisticated technologies in the 
RP industry: Stereolithography and laser sintering. 
Stereolithography technology utilizes a liquid, photocurable plastic 
resin to create three-dimensional objects through radiation. Laser 
sintering technology creates three-dimensional objects by employing 
a plastic powder that is solidified through the heat and energy 
supplies by a laser. Consistent with the Antitrust Division's 
allegation in its Complaint, EOS estimates that 3D and DTM have a 
combined eighty percent share, by revenue, of the industrial RP 
systems and materials market in the United States.
    EOS is a German corporation, headquartered near Munich. EOS 
manufactures and sells industrial RP systems and materials. The RP 
systems manufactured by EOS utilize laser sintering technology. EOS 
sells its laser sintering RP systems and materials primarily in 
Europe and Asia. EOS is the only company in the world other than DTM 
(now part of 3D since the Merger) that has developed and 
manufactured laser sintering RP systems and materials. The Antitrust 
Division has recognized that ``3D and DTM face rigorous competition 
from . . . Electro Optical Systems, based in Germany.'' See 
Competitive Impact Statement at 66 FR 49209.
    However, EOS makes no sales of its laser sintering RP systems in 
the United States. This is primarily because of assertions by DTM, 
and now by 3D following the Merger, of certain U.S. patent barriers. 
This intellectual property barrier to sales in the United States by 
foreign companies is one reason that DOJ concluded that the United 
States constitutes a distinct geographic market for RP systems and 
materials. See Complaint Paras.  16-19. The DOJ also recognized that 
the patent rights controlled by 3D and DTM were a primary reason for 
the anticompetitive effects caused by the Merger. See Complaint 
para. 28. Similarly, 3D and DTM recognized the large patent barrier 
their combined portfolios represent. According to the Complaint, the 
investment banking firm retained by 3D to advise on the Merger 
reported that 3D's management believed that ``following the merger, 
[3D] will have a significantly strong patent portfolio to prevent 
others from competing in the United States.'' Id.

B. EOS's Relationship and Competition With 3D

    EOS and 3D have a unusual relationship that DOJ and the Court 
must understand in order to appreciate the harm that the proposed 
Final Judgment, as explained in more detail below (see Section IV.), 
has had on EOS specifically and on possible new competition in the 
United States generally. The unusual relationship between 3D and EOS 
is that, while EOS is a competitor of 3D, EOS is also a licensee 
under all of 3D's patents. EOS utilizes the patents that it licenses 
from 3D, as well as other technology EOS owns, to produce laser 
sintering RP systems that compete with 3D's RP Industrial Equipment.
    Prior to the Merger, 3D owned an extensive patent portfolio that 
both 3D and EOS believe cover significant portions of both the 
stereolithography and the laser sintering technologies used in the 
RP industry. In a series of transactions between 3D and EOS in 1997, 
EOS licensed from 3D the exclusive right to produce and sell laser 
sintering RP systems under the 3D patents. See August 27, 1997 
License Agreement between 3D Systems Corporation and EOS GmbH 
(``1997 3D/EOS Licensing Agreement'') (Attachment A). Following the 
execution of the 1997 3D/EOS Licensing Agreement, and until the 
Merger, 3D manufactured and sold only stereolithography RP systems. 
EOS manufactures and sells only laser sintering RP systems. As a 
result of the 1997 3D/EOS Licensing Agreement, both companies in 
part use technology protected by the same patents. Since the 1997 
3D/EOS Licensing Agreement became effective, 3D and EOS have been 
significant competitors for RP systems in Europe and Asia, but not 
in the United States, where DTM's assertions of intellectual 
property barriers have inhibited EOS from entering the market.

C. EOS Competition with DTM

    At the time that 3D and EOS entered into the 1997 3D/EOS 
Licensing Agreement, DTM

[[Page 11130]]

was making commercial sales of its laser sintering RP systems and 
materials. DTM's and EOS' laser sintering RP systems use similar 
technologies and similar sintering RP material. DTM and EOS directly 
compete in Europe, Asia, and elsewhere, but not in the United 
States.

D. The Inability of EOS To Compete in the United States Has Resulted in 
Much Higher U.S. Prices

    The competition between EOS and DTM has greatly benefited 
customers of industrial RP systems in Europe and Asia, the areas 
where EOS primarily competes with DTM (now with 3D). As a result of 
that competition in Europe, customers pay much less for sintering RP 
material in Europe than in the United States. Due to the lack of 
competition in the United States, sintering RP material has, on 
average over the last several years, cost United States customers 
about three times more than European customers. At the present, U.S. 
customers of DTM are paying $60 to $65 per pound for DTM's 
DuraForm, which EOS believes accounts for about 80% of the 
material used in DTM's laser sintering RP systems. European 
customers are paying about $20 to $22 per pound for the same 
DuraForm material. The cost of the sintering RP material, 
which is a continuing and substantial cost that users of RP systems 
incur, is a very important consideration in the purchase and use of 
RP systems. Over the life of an RP system, it is not unusual for a 
user to spend more for the material used in the RP system than the 
original cost of the RP system. The Antitrust Division has 
recognized this U.S./Europe price difference, and it was a 
significant reason that DOJ concluded that the United States is a 
separate market.
    Due to the large discrepancy between the price of laser 
sintering RP material in the United States as compared to Europe, 
the growth of laser sintering technology has been inhibited in the 
United States. Laser sintering RP systems and materials now account 
for about 55% of all RP industry purchases in Europe. In the United 
States, however, laser sintering RP systems and materials account 
for only about 30% of all RP industry purchases. The United States 
is the largest market in the world for industrial RP systems and 
material, accounting for almost 45% of all purchases of industrial 
RP systems, material, and related services. EOS believes that the 
slower growth rate of laser sintering technology in the United 
States, despite being the largest market in the world for RP 
technology, is primarily (if not solely) a result of the much higher 
U.S. prices for laser sintering materials.

E. EOS' Attempts To Enter U.S. Market

    As the United States is the largest market in the world for RP 
systems and materials, EOS has been attempting to enter into this 
large market in order to offer its line of laser sintering RP 
systems and materials. However, as described earlier, EOS has been 
confronted with DTM's assertion of patent barriers for laser 
sintering RP systems and materials. In order to settle the legal 
issues raised by DTM's aggressive position and in an attempt to gain 
open access to the United States market for industrial RP systems 
and materials, EOS initiated a lawsuit against DTM in the Central 
District of California. DTM also filed a complaint against EOS in a 
related proceeding.

II. The Final Judgment Permits a Significant Period of Monopoly for 
the Merged 3D and DTM

    The proposed Final Judgment has permitted 3D and DTM to merge, 
despite the adverse independent competitive effects of the Merger 
cited by DOJ in the Complaint. DTM's corporate existence has ceased, 
and it is now part of 3D. 3D now unquestionably enjoys a monopoly in 
the United States RP Industry, as described in the Complaint. See 
Complaint para. 20-30. The proposed Final Judgment purports to 
remedy the adverse competitive effects of this monopoly in the 
future by requiring that 3D license its patents to a new competitor. 
Regardless of the impact that the licensing will have, in the 
interim period, the merged 3D/DTM has a monopoly. Under the terms of 
the proposed Final Judgment, this interim period will be a minimum 
of 120 to 180 days, the time in which 3D has to affect the required 
divestitures. If the 3D does not affect the divestitures, a trustee 
will be appointed to divest the assets, which would take additional 
time. As a practical matter, it will take any Acquirer of the 
Divestiture Assets at least six months, and probably at least a 
year, from the date of obtaining the license to establish a 
sufficient sales and service force in the United States to begin 
meaningful competition with 3D's monopoly.

A. The Merged Entity's Monopoly Period Will Create Additional Entry 
Barriers for Any Acquirer of the Divestiture Assets

    This period in which 3D enjoys an unchallenged monopoly will 
create additional barriers to any new competitor's successful entry 
into the U.S. market. The merged entity already has a large base of 
installed equipment in the United States. The period before which 
any new competitor in the United States can be expected to 
realistically begin competition will allow 3D to increase this 
installed base. This period provides an opportunity for 3D to bundle 
its systems, materials, and services without any competitive threat. 
For this period, which may well be as long as a year, U.S. customers 
of the merged entity will have no alternative source for RP systems 
or materials.
    Additionally, any Acquirer of the Divestiture Assets will face 
vigorous competition from 3D, which now can offer a full range of 
stereolithography and laser sintering RP systems and materials. The 
proposed Final Judgment's requiring only that 3D divest either its 
stereolithography patents or its laser sintering patents to 
establish a new U.S. competitor will make successful entry against a 
3D/DTM product line very difficult.
    The proposed Final Judgment should have required that the merged 
3D/DTM license both technologies to an appropriate Acquirer or 
Acquirers. The restrictions on competition in the United States 
caused by the Merger are so substantial that a more complete remedy 
should have been a fundamental condition for the Merger to proceed. 
This would be the only way to ensure that a competitor or 
competitors could offer U.S. customers a range of competitive 
alternatives similar to what the merged 3D and DTM can offer.

B. During the Period in Which 3D Has Had a Monopoly, 3D Has Engaged in 
Additional Anticompetitive Behavior

    Following the settlement with DOJ and during this period in 
which 3D has possessed a monopoly, 3D has engaged in additional 
conduct that by itself may violate the antitrust laws. Specifically, 
this conduct includes the acquisition of RPC Ltd. of Switzerland, 
previously a competitor of 3D for sales of plastic resins utilized 
in the stereolithography RP systems. See ``3D Systems Completes 
Acquisition of RPC,'' September 19, 2001 News Release by 3D 
(Attachment B). During this period, 3D has also attempted to 
eliminate competing sales of plastic resins by Vantico Inc., 3D's 
current supplier of resins. See ``3D Systems and Vantico Terminate 
Relationship, August 24, 2001 News Release by 3D (Attachment C).'' 
By these actions, 3D, which currently makes about 80% of the U.S. 
sales of plastic resin, is attempting to reduce the number of 
plastic resin suppliers in the United States from three to two. This 
conduct may violate the same antitrust laws under which 3D was sued 
by DOJ. This conduct does not directly affect EOS, as EOS does not 
sell plastic resins, but DOJ and the Court should be aware of this 
conduct and consider it when evaluating the adequacy of the proposed 
Final Judgment.

III. In Order To Preserve Competition in the Industrial RP Systems 
Market, the Acquirer Should Be an Independent Laser Sintering Firm

A. Actual Loss of Competition Is the Elimination of an Independent 
Laser Sintering Competitor

    Prior to the Merger, DTM was the only company in the United 
States that manufactured and sold industrial laser sintering RP 
systems and materials. As a result of the Merger permitted by DOJ, 
U.S. purchasers in the industrial RP systems and materials market 
have lost an independent laser sintering competitor. The proposed 
Final Judgment does not, however, include a requirement that 3D 
license its laser sintering patents to a competitor, which would 
directly replace the competition that has been lost.
    The Antitrust Division has acknowledged the beneficial effects 
caused by the presence of an independent laser sintering firm in the 
United States industrial RP systems and materials market. In the 
Competitive Impact Statement, DOJ stated that ``[c]urrently, 3D and 
DTM offer the most sophisticated systems in the industry and compete 
directly against each other in the development, manufacture, and 
sale of industrial RP systems.'' Competitive Impact Statement at 66 
FR 49200, 49209 (September 26, 2001). In the Complaint, DOJ 
correctly recognized that:

[t]he direct competition between 3D and DTM has benefited the 
purchasers and users of industrial RP systems through lower prices 
for systems, lower prices for materials, and improved products. In 
addition, the two

[[Page 11131]]

companies would likely remain the most vigorous competitors in the 
industrial RP systems market as the market continues to grow and 
mature, If 3D's acquisition of DTM is permitted to proceed, the 
substantial competition between the two leading manufacturers of 
industrial RP systems will be permanently eliminated, resulting in 
increased prices and lessened product innovation. Complaint para.26.

DOJ also correctly described that ``[t]he competition between 3D and 
DTM has been the driving force behind the innovative industrial RP 
system technology.'' Complaint para. 22 (emphasis added). See also 
Competitive Impact Statement at 66 FR 49209. The United States 
market for industrial RP systems and materials may permanently lose 
this ``driving force'' of competition between stereolithography and 
laser sintering technologies unless an independent laser sintering 
firm becomes a competitor in the United States. 3D licensing its 
laser sintering patents to a new U.S. entrant should be an absolute 
and minimum requirement of the proposed Final Judgment.

B. Licensing Only a Stereolithography Company Will Not Preserve 
Competition

    Through the above-referenced statements in the Complaint and the 
Competitive Impact Statement, it is evident that DOJ understands the 
vigorous competition brought to the United States industrial RP 
systems and materials market by an independent laser sintering firm. 
Nevertheless, DOJ erroneously asserts that the proposed Final 
Judgment will ``ensure that competition that would have otherwise 
been eliminated as a result of the proposed acquisition will be 
preserved.'' Competitive Impact Statement at 66 FR 49209. When the 
realities of the United States industrial RP systems marketplace are 
examined, it is also evident that 3D's divestiture to a 
stereolithography, company would not preserve competition in the 
United States market for RP systems and materials.
    The United States market for industrial RP stereolithography 
systems has reached a point of saturation. There are substantially 
more stereolithography RP systems than laser sintering RP systems in 
operation in the United States. 3D is a stereolithography company, 
and it derived more than two times as much revenue as DTM during 
fiscal year 2000. Competitive Impact Statement at 66 FR 49208-09. 3D 
recently announced the sale of its 2,000th RP system. See ``3D 
Systems Sells 2,000th Machine,'' May 29, 2001 News Release by 3D 
(Attachment D). Members of the RP Industry estimate that three out 
of every four industrial RP systems operating in the United States 
utilize 3D's stereolithography technology.
    Through its present customer rebate program, 3D has effectively 
acknowledged that the U.S. industrial RP systems market for 
stereolithography has reached a point of saturation. 3D is currently 
offering customers cash rebates as high as $200,000, or about 20%-
30% for purchasing 3D's stereolithography RP systems. Letter from 
Dwight Williams, Vice-President Sales for Americas, 3D Systems, 
dated October 23, 2001 (Attachment E). 3D has not offered similar 
rebates on sintering RP systems. This indicates that 3D has to offer 
substantial rebates on its stereolithography systems in order to 
sell them into this market full of stereolithography RP systems, but 
3D does not have to offer rebates in order to sell its sintering 
systems. Any stereolithography firm that acquires the Divestiture 
Assets would not only have to contend with 3D's large installed base 
of customers, but also with a saturated United States market. As a 
result, with its complete product line of industrial RP systems and 
materials, 3D will be able to leverage its considerable market power 
to adversely effect the newly-licensed stereolithography company's 
attempt to enter the United States market.
    Laser sintering RP technology has greater growth prospects than 
stereolithography RP technology in the United States. Laser 
sintering RP systems currently account for approximately 55% of all 
RP industry purchases in Europe, but only about 30% of all 
industrial RP purchases in the United States. The principal cause of 
this slower growth in the United States is the much higher prices 
charged by DTM (now 3D) for laser sintering RP material in the 
United States than those charged in Europe. The price for laser 
sintering material is approximately 200% more than the price for the 
same material in Europe. See Section I.D above. Recognizing this 
price difference, many potential customers located in the United 
States have expressed an interest in purchasing EOS laser sintering 
industrial RP systems and materials. Moreover, United States 
customers who are familiar with EOS' industrial RP systems are 
attracted to its features (such as its large build volume and higher 
operating efficiency) that differentiate it from 3D's industrial RP 
laser sintering systems. However, because of DTM's aggressive 
assertion of its patents, EOS has been unable to meet this market 
demand opportunity. Without competition from an independent laser 
sintering RP company, the substantial growth prospects for laser 
sintering RP technology will not be realized, and competition in the 
RP industry will be irreparably harmed.

C. Any Stereolithography Acquirer May Encounter Additional Patent 
Barriers to U.S. Market Entry

    Aside from having to content with 3D's substantial installed 
base of stereolithography customers, a newly licensed 
stereolithography company would face an additional patent barrier 
controlled by a third party. Aaroflex, Inc. (``Aaroflex'') is the 
exclusive North American licensee of the stereolithography 
technology of E.I. du Pont de Nemours and Company (``Du Pont''). 
Aaroflex is currently involved in litigation with 3D over the scope, 
enforceability, and validity of their respective stereolithography 
patent portfolios. Aaroflex has stated that it will assert its 
rights under the DuPont patents to prevent any other company from 
selling stereolithography RP systems in the United States. 
Consequently, should 3D divest its technology to a stereolithography 
company, the potential new competitor's entry into the United States 
market for industrial RP systems and materials could be 
substantially impeded by a patent dispute. DOJ has overlooked this 
potential obstacle to successful U.S. competition by a new 
stereolithography company. Despite DOJ's statements in the 
Competitive Impact Statement, the proposed Final Judgment does not 
lift all of the patent entry barriers in the industrial RP systems 
and materials market in the United States for stereolithography 
equipment.

D. Teijin Sieki/CMET Is Not a Suitable Acquirer of 3D's Patent Rights

    The Antitrust Division has recognized Teijin Seiki \2\ of Japan 
as a potential Acquirer of the Divestiture Assets. Competitive 
Impact Statement at 66 Fed. Reg. 49209. Teijin Seiki currently 
manufactures and sells stereolithography RP Equipment in Asia. 
Teijin Seiki is therefore a potential Acquirer of the Divestiture 
Assets under the terms of proposed Final Judgment.
---------------------------------------------------------------------------

    \2\ Teijin Seiki recently acquired another Japanese company 
called NTT-Data CMET, Inc. Following the acquisition, Teijin Seiki 
has operated under the CMET trade name.
---------------------------------------------------------------------------

    After DOJ filed the Complaint to challenges the Merger, but 
before the filing of the proposed Final Judgment, the president of 
Teijin Seiki sent a letter to EOS mentioning how both EOS and Teijin 
Seiki might be interested in bidding for assets that 3D and DTM 
might have to divest to resolve the antitrust challenge to the 
Merger. See Letter from Ken Sahara, President, CMET Inc. to Dr. Hans 
Langer, President, EOS GmbH, dated July 23, 2001 (Attachment F). 
Though Mr. Sahara acknowledged that ``[a]t this stage, I am not 
sure, it is the proper time or not,'' he invited EOS to meet and to 
``discuss or exchange information about Market, Products, and 
others.'' EOS interprets this communication from Teijin Seiki as an 
invitation to collude, either regarding the bidding process for the 
Divestiture Assets or regarding competition generally. Demonstrating 
an awareness of the impropriety of the contact and the invitation, 
Mr. Sahara closed the letter with a request to ``[p]lease treat this 
proposal as a confidential matter between you and I.''
    DOJ has previously challenged similar invitations to collude as 
an attempted violation of the antitrust laws. See. e.g., United 
States v. American Airlines, 570 F. Supp. 654 (N.D. Tex 1983), 
rev'd, 743 F.2d 1114 (5th Cir. 1984), cert. dismissed, 474 U.S. 1001 
(1985). the willingness of the president of Teijin Seiki to engage 
in such potentially anticompetitive, apparently unethical or illegal 
conduct establishes that Teijin Seiki is not a suitable Acquirer of 
the Divestiture Assets. DOJ and the Court should consider this in 
the evaluation of a potential Acquirer.

IV. The Proposed Final Judgment Has Harmed EOS' Independent Attempt 
To Enter the Industrial RP Systems and Materials Market in the 
United States

    Under the Antitrust Penalties and Procedures Act (``APPA''), the 
Court must evaluate the proposed Final Judgment submitted by DOJ. 
See 15 U.S.C. 16(b)-16 (h) (1994). It is well established that 
``Congress, in passing the (APPA), intended to prevent `judicial 
rubber stamping' of the Justice Department's proposed consent 
decrees.''

[[Page 11132]]

United States v. Microsoft Corp., 56 F.3d 1448, 1458 (D.C. Cir. 
1995) (citation omitted). Specifically, the Court must make an 
independent determination of whether entry of the proposed Final 
Judgment is ``in the public interest.'' 15 U.S.C. 16(e). Among the 
factors that the Court is to consider in conducting its public 
interest inquiry is whether entry of the proposed Final Judgment 
``will result in any positive injury to third parties.'' 15 U.S.C. 
16(e)(2); see also Microsoft Corp., 56 F.3d at 1461-62. By 
permitting the Merger to close prior to remedying the competitive 
harm, the proposed Final Judgment is causing injury EOS that the 
Court should consider in its evaluation of whether the enter the 
proposed Final Judgment without modification.

A. The Proposed Final Judgment Is Hearing EOS' Ability To Litigate 
Issues Related to Certain Intellectual Property Rights of EOS

    As described in Section I.B. above, EOS acquired certain 
intellectual property rights from 3D through the 1997 3D/EOS 
Licensing Agreement. These rights include an exclusive license to 
all 3D patents then existing and applied for prior to August 2002, 
applicable to a field of use for laser sintering. See Attachment A. 
The 1997 3D/EOS Licensing Agreement also contains a provision that 
EOS will not assert against 3D ``any claims for infringement based 
on the manufacture, use, sale or offer for sale of any apparatus 
made or sold by [3D] under the licensed patents, at any time, for 
any reason, during the term of the License Agreement'' (the ``Non-
Suit Provision''). See 1997 3D/EOS Licensing Agreement Sec. 2.1(a) 
(Attachment A).
    In December 2000, EOS filed a lawsuit against DTM in an attempt 
to open the United States industrial RP systems market to 
competition from EOS. Since 3D has acquired and merged with DTM, 3D 
has taken the position that EOS may not maintain any claim of patent 
infringement against 3D because of the Non-Suit Provision. In fact, 
3D recently submitted a motion for summary Judgment in the action 
based entirely on its interpretation of the Non-Suit Provision in 
the 1997 3D/EOS Licensing Agreement. See 3D Systems, Inc.'s Motion 
for Summary Adjudication Regarding Damages Under the 3D Patents and 
the accompanying Memorandum of Points and Authorities in Support 
Thereof (without attachments) (Attachment G). White EOS strongly 
disagrees with 3D's interpretation of the license agreement as well 
as its interpretation of the applicable law, at a minimum 3D's 
argument has complicated and will prolong the litigation. At worst, 
if the District Court of the Central District of California accepts 
3D's position, EOS will effectively be stripped of its ability to 
enforce its patent rights in the United States--rights that it 
acquired originally from 3D. As a result of the proposed Final 
Judgment's permitting the Merger, EOS is currently, and may be 
permanently, injured in its ability to enforce its intellectual 
property rights in the United States. This is an unusual and 
idiosyncratic anticompetitive effect, but this additional obstacle 
to a potential new U.S. competitor is a directly created by the 
Merger and the proposed Final Judgment.
    EOS' ability to enforce its patents should not inhibited by the 
terms of the settlement agreement reached between DOJ and 3D/DTM. 
Accordingly, the proposed Final Judgment must be modified to 
prohibit 3D from asserting that EOS cannot enforce intellectual 
property rights that EOS acquired from 3D.

B. The Merger Has Created Additional Barriers for any Potential 
Entrants Into the United States Market for Industrial RP Systems and 
Materials

    As described above, the Merger has created a company that can 
offer both stereolithography and laser sintering industrial RP 
systems and materials. See Section II.A. above. Meanwhile the 
Acquirer will only be able to offer industrial RP systems that 
utilize either stereolithography technology or laser sintering 
products. As a result, EOS or any other Acquirer will be at a 
substantial disadvantage to 3D. This effect has been exacerbated by 
DOJ's permitting 3D and DTM to close the Merger before the Acquirer 
has obtained the Divestiture Assets. To correct this obstacle to 
either a stereolithography or a laser sintering competitor's entry, 
the proposed Fund Judgment should be modified to require both a 
stereolithography and a sintering Acquirer.

V. Several Miscellaneous Provisions of the Proposed Final Judgment 
Indicate that DOJ Misunderstands Some Fundamental Concepts of the 
RP Industry

A. DTM's Plant in Austin, Texas Cannot Be Acquired

    Included among the Divestiture Assets is an option for the 
Acquirer to purchase DTM's plant located in Austin, Texas (the 
``Plant''). Proposed Final Judgment para. II.G(3); see also 
Competitive Impact Statement at 66 Fed. Reg. 49210. Through its due 
diligence, EOS has learned that DTM (now 3D) is merely a lessee of 
the Plant. As as result, contrary to DOJ's apparent belief, the 
Acquirer cannot purchase or acquire the Plant. The Acquirer may only 
assume DTM's lease. The proposed Final Judgment also contains a 
provision that reads as follows: ``Defendants shall warrant to the 
Acquirer of the Divestiture Assets that each tangible asset will be 
operational on the date of sale.'' Proposed Final Judgment para. 
IV.K. In this type of industry, there are no tangible operating 
assets to transfer. Moreover, the proposed Final Judgment fails to 
include a requirement that 3D/DTM transfer any employment contracts 
associated with the Plant. So, DOJ has negotiated a divestiture that 
only amounts to an option to assume a lease. The inclusion of the 
option to ``purchase'' the Plant does not provide an Acquirer with 
any assistance in establishing a presence in the United States 
market for industrial RP systems and materials. This provision in 
the proposed Final Judgment suggests that DOJ does not understand 
what divestiture commitments it has extracted from 3D and DTM.

B. The Peoposed Final Judgment Does Not Permit Potential Acquirers To 
Obtain Information on Necessary Service Personnel of the 3D and DTM

    Another aspect of the proposed Final Judgment which suggests 
that DOJ does not comprehend the requirements of affecting a 
successful entry into the United States market for industrial RP 
systems and materials is its failure to include the service 
personnel of 3D/DTM as part of the required due diligence. The 
proposed Final Judgment only requires that 3D/DTM provide the 
Acquirer, after the Acquirer has been determined, ``information 
relating to the personnel involved in sales, marekting and 
manufacturing of RP Industrial Equipment in the Selected Technology 
to enable the Acquirer to make offers of employment * * *.'' 
Proposed Final Judgment para. IV.I. Service personnel are omitted, 
and this omission is particularly troubling. EOS had previously 
conveyed to DOJ the importance of having access to service 
personnel. EOS had clearly communicated that obtaining competent and 
experienced service personnel was essential to establishing a viable 
presence in the United States market for industrial RP systems. In 
fact, EOS identified the task of identifying and hiring 
knowledgeable service personnel as one of the most significant 
barriers to entry in the United States industrial RP systems market. 
The Federal Trade Commission has recognized the importance of 
including a requirement in its orders involving the divestiture of 
technology that the defendants facilitate the transfer of 
knowledgeable personnel. Bureau of Competition, Federal Trade 
Commission, A Study of the Commission's Divestiture Process (1999) 
at 27-28, and at 36-37. Requiring the transfer of knowledgeable 
personnel is necessary to ensure that the Acquirer has the ability 
to exploit its newly acquired technological rights. Id.
    Aside from its failure to include service personnel as part of 
the initial due diligence process, the Antitrust Division did not 
require that 3D/DTM share any personnel information with any 
potential Acquirer until the Acquirer has been identified. Proposed 
Final Judgment para. IV.I. Consequently, in submitting their offers 
to 3D, potential Acquirers must attempt to value the Divestiture 
Assets without any information on personnel. In light of the 
information that has been provided to DOJ and its experience with 
negotiating divestiture orders, it is difficult to conceive of a 
procompetitive explanation for DOJ's failure to require that 3D 
provide timely due diligence information on all types of its 
personnel (sales, marketing, manufacturing, and service) to 
potential Acquirers.

C. The Schedule Established by the Proposed Final Judgment Dictates 
That Public Comments Must be Submitted Prior to the Identification of 
an Acquirer

    Finally, the schedule established for completing the divestiture 
required by the proposed Final Judgment allowed the deadline for the 
submission of public comments to pass before 3D selected an 
Acquirer. This schedule makes it impossible to address concretely 
the actual effect that the proposed Final Judgment will have on 
competition in the United States market for industrial RP systems 
and materials. There is no reason why DOJ could not have required 
that 3D identify its proposed Acquirer prior to the expiration of 
the period for submitting

[[Page 11133]]

public comments. In fact, EOS submits that if DOJ had done so, then 
the public comments would have been much more useful to the 
Antitrust Division's evaluation of the competitive merits of 3D's 
proposed Acquirer and the Court's determination of whether the 
proposed Final Judgment sufficiently protects the public interest. 
The Court should modify the proposed Final Judgment to allow a 30-
day comment period after an Acquirer has been selected by 3D, but 
before approval by DOJ.

Conclusion

    EOS does not seek a better treatment for itself than the 
proposed Final Judgment allows other potential Acquirers. EOS is 
seeking to identify what is necessary to ensure that it or some 
other Acquirer has the resources required to compete adequately in 
the United States. For the reasons discussed above, EOS recommends 
that DOJ or the Court modify the proposed Final Judgment so that a 
new competitor will be permitted to sell laser sintering RP systems 
and material in the United States, without regard to whether 3D 
licenses its stereolithography technology. United States customers 
of laser sintering RP systems and material should be guaranteed an 
independent competitive source of supply. EOS also requests that the 
proposed Final Judgment be modified to prohibit 3D from asserting 
that EOS is precluded from enforcing its patent rights against 3D in 
the pending litigation.
    Further, EOS requests that the court conduct a hearing to 
examine more carefully the adequacy of the competitive relief that 
DOJ has agreed to in the proposed Final Judgment.
    Should you have any questions about the information that EOS has 
provided or if you would like additional information, please do not 
hesitate to contact me.

Sincerely yours,

Dr. Hans Langer,
Chief Executive Officer, EOS GmbH Electro Optical Systems, 49 (89) 
85685-111.

David J. Laing,
Baker & McKenzie, U.S. Antitrust Counsel to EOS GmbH Electro Optical 
Systems.

License Agreement

    Agreement, effective as of the 27th day of August, 1997, between 
3D Systems Corporation, having its principal office at 26081 Avenue 
Hall, Valencia, California, and 3D Systems GmbH, having its 
principal office at Rontgenstraeette 41, D-64291, Darmstadt, Germany 
(both hereinafter called ``Licensor'') and EOS Gmbh Electro Optical 
Systems, having a place of business at Pasinger Str. 2, D-82152 
Planegg, Munich, Germany (hereinafter called ``Licensee'') (being 
sometimes hereinafter referred to individually as a Party and 
collectively as the ``Parties'');

Witnesseth

    Whereas, Licensor and Licensee are, contemporaneously herewith, 
entering into a settlement, purchase and transfer agreement 
(``Purchase Agreement'') under which they are, inter alia, settling 
all Court and other patent-related proceedings pending between 
Licensor on the one hand, and Licensee and its customers on the 
other; and
    Whereas, the Purchase Agreement also covers a purchase by 
Licensor of certain assets of Licensee; and
    Whereas, in partial consideration of the settlement of 
litigation between the Parties, and the acquisition by Licensor of 
Licensee's business unit known as the ``Stereos'' product line, 
Licensor is willing to grant to Licensee throughout the world under 
its Licensed Patents a license upon the terms and conditions set 
forth hereinbelow;
    It is Agreed:

Article I--Definitions

    1.1  Licensed Patents shall mean the following patents to the 
extent, and only to the extent, applicable to the field of Laser 
Sintering:
    (a) All U.S. and foreign patents, including reissued and 
reexamined patents and utility models owned by Licensor as of the 
effective date of this Agreement, and all patents and utility models 
assigned from EOS to 3D; and
    (b) U.S. and foreign patents and utility models, which may issue 
to Licensor on patent and utility model applications filed prior to 
August 20, 2002, or filed subsequent thereto, but receiving, or 
entitled to receive, the benefit of a filing date prior to August 
20, 2002, including any patents of addition and utility models, and 
further including any extensions, renewals, continuations, 
reexaminations, and/or reissues thereof.
    1.2  Laser Sintering shall mean and include only apparatus, 
methods and supplies for producing three-dimensional objects, layer-
by-layer, from (a) coated or uncoated powders not contained within a 
solidifiable fluid, through sintering by a laser or other heat 
source, (b) dry polymer-coated powders, through curing by an IR 
laser or other heat source, and (c) coated or uncoated powders in a 
mixture with a liquid, in which the liquid is no greater than 15 
percent of the total volume;
    1.3  Stereolithography shall mean and include apparatus, methods 
and supplies for producing three-dimensional objects layer-by-layer 
from photocurable fluids;
    1.4  Jetting R.P. shall mean and include apparatus, methods and 
supplies for producing three-dimensional objects layer-by-layer from 
jettable materials for hot melt ink jet technology that are solid at 
room temperature.

Article II--The License

    2.1  License Grant. Upon execution of this Agreement, Licensor 
hereby grants to Licensee, an exclusive, worldwide, personal, non-
transferable and paid-up license under the Licensed Patents, to 
make, use, lease, sell, offer for sale, and import, products solely 
for use in the field of Laser Sintering; provided, however, that 
such license is subject to the following limitations:
    (a) Licensee expressly agrees not to assert against Licensor, or 
vendees or customers, mediate or immediate, of Licensor, any claims 
for infringement based on the manufacture, use, sale or offer for 
sale of any apparatus made or sold by Licensor under the Licensed 
Patents, at any time, for any reason, during the term of this 
License Agreement;
    (b) The license shall only be effective during the term of this 
License Agreement.
    2.2  Release. Licensor hereby grants to Licensee and its prior 
customers, mediate and immediate, of products respectively sold and 
used, a paid-up release under the Licensed Patents.
    2.3  Sublicensing. During the term of this License Agreement, 
the license hereby granted shall include the right of Licensee to 
grant written sublicenses; provided, however, that Licensee agrees 
to deliver to Licensor a true and correct copy of each and every 
sublicense entered into by Licensee within thirty (30) days after 
execution thereof, and shall promptly advise Licensor in writing of 
any modification (and supply same) for termination of each 
sublicense. Upon termination of this License Agreement for any 
cause, any and all existing sublicenses hereunder shall thereupon be 
assigned to Licensor. This shall be made a condition of any such 
sublicense that may be granted by Licensee. Licensee agrees that 
one-half (\1/2\) of any royalty income received by Licensee in any 
form, whether in monies or other valuable consideration (but not 
including license rights as received, for example, under a cross-
license agreement), whether by agreement or as a result of 
litigation or otherwise, shall be shared equality (i.e., 50/50) with 
Licensor.
    2.4  No license is granted by Licensor to Licensee, either 
directly or by implication, estoppel or otherwise, under any patents 
other than patents included in the Licensed Patents, or for any 
field other than the field of Laser Sintering.
    2.5  Licensee agrees to mark every licensed product manufactured 
or sold by it under this Agreement, and to require same of any 
sublicensees, in accordance with the applicable statutes of the 
country of manufacture and sale.

Article III--Enforcement of Patents

    3.1  In the event Licensee becomes aware of any actual or 
threatened infringement of a patent which is included in the 
Licensed Patents, Licensee shall have the right to bring, at its own 
expense, an infringement action to enforce the infringed-upon 
patent. In the event it is determined by a court of competent 
jurisdiction, after all appeals or right to appeal have been 
completed, that Licensor is an indispensable party to any such 
litigation, then Licensor agrees to be joined in any such 
litigation, provided that Licensee agrees to pay for all costs 
incurred by Licensor in connection with such joinder, including 
Licensor's own attorneys' fees as well as any court costs, travel 
and living expenses, and all other costs incurred in connection 
therewith. Furthermore, in respect of any litigation under the 
Licensed Patents, whether brought by Licensee or brought pursuant to 
Article 3.2, in the event of any discovery proceedings involving 
Licensor, Licensee agrees to pay for all costs incurred by Licensor, 
including internal personnel costs involved in discovery at an 
hourly rate representing the cost to Licensor for any such 
employees, as well as any travel and living expenses, together with 
all other costs and expenses.
    3.2  In the event a third party brings an action to obtain a 
declaration of patent invalidity or non-infringement (a ``DJ

[[Page 11134]]

Action'') based upon or related to allegations of infringement by 
Licensee with respect to the field of Laser Sintering, against 
either Licensee or Licensor, or both with respect to a patent which 
is included in the Licensed Patents:
    3.2.1  Licensee shall be required to defend said DJ Action at 
its cost and expense, whether such DJ Action is against Licensor or 
Licensee, or both.
    3.3  In the event a litigation subject to 3.1 or 3.2.1 involves 
an assertion of invalidity of any Licensed Patent, Licensor shall 
have the right, but not the obligation, to participate in such 
litigation at its own cost and expense, and thereby to control the 
litigation insofar as the issue of validity is concerned.

Article IV--Term of License, Termination

    4.1  The term of this Agreement shall, unless otherwise 
terminated as provided in Article 4.2, extend for the life of the 
last to expire of the Licensed Patents and shall thereupon 
terminate.
    4.2  Licensor may terminate this Agreement, in whole, or with 
respect to any patent included in the Licensed Patents, in the event 
of any breach of the non-compete provision (set forth in Article 2, 
paragraph 7, ``Prohibition of Competition'' of the Purchase 
Agreement between the Parties dated August 27, 1997), unless such 
breach with due regard to all circumstances is immaterial or unless 
the party in breach of Prohibition of Competition shows that such 
breach was committed for reasons beyond its reasonable control. 
Furthermore, Licensor shall have the right to terminate this 
Agreement, in whole or with respect to any patent included in the 
Licensed Patents, in the event that at any time during the term 
hereof, EOS or its affiliated companies, or Dr. Hans J. Langer (who 
shall indicate his agreement with this provision by his subscription 
hereto) engage in any manner in the manufacture, sale or use of 
Stereolithography products or Jetting R.P. (other than as permitted 
in the above-noted non-compete provision).
    4.3  Any termination pursuant hereto shall not relieve Licensee 
from any obligation or liability accrued hereunder prior to such 
termination, not rescind or give rise to any right to rescind 
anything done or any payments made, or other consideration given 
hereunder, or in the Purchase Agreement dated August 27, 1997, or 
any other consideration given hereunder prior to the time of such 
termination, and shall not affect in any manner any remedies of 
Licensor arising out of this Agreement prior to such termination.

V--Warranty

    5.1  Licensor warrants and represents that it has the full right 
and power to grant the license under the Licensed Patents as set 
forth herein, and that there are no outstanding agreements, 
assignments or encumbrances inconsistent with the provision of this 
Agreement other than as expressly set forth herein. Licensor makes 
no other representation or warranty, express or implied, nor does 
licensor assume any liability in respect of any infringement of any 
patent or other right of third parties due to licensee's activities 
under this agreement except as expressly set forth herein. By way of 
example, but not of limitation, licensor makes no representation or 
warranty of commercial utility, merchantability or fitness for a 
particular purpose, or that operating under the license herein 
granted will not infringe any patent or other property right of 
others (other than the right to license hereunder). In no event 
shall licensor be liable for any claim or loss incurred by licensee 
(including, without limitation, compensatory or exemplary damages, 
lost profits, lost sales or business, expenditures, investments or 
commitments in connection with any business, or loss of any 
goodwill) irrespective of whether licensor has been informed of, 
knows of, or should have known of the likelihood of such damages, 
except as expressly otherwise provided in this agreement. This 
limitation applies to all causes of action in or with respect to the 
agreement, including, without limitation, breach of contract, breach 
of warranty, negligence, strict liability, misrepresentation and 
other sorts.
    5.2  Nothing in this Agreement shall be construed as:
    (a) A warranty or representation by LICENSOR as to the validity 
or scope of any Licensed Patent; or
    (b) A warranty or representation that anything made, used, sold, 
or otherwise disposed of under any license granted in this Agreement 
is or will be free from infringement of patents of third persons; or
    (c) A requirement that LICENSOR shall file any patent 
application, secure any patent, or maintain any patent in force; or
    (d) An obligation to bring or prosecute actions or suits against 
third parties for infringement of any patent; or
    (e) An obligation to furnish any technical or other information 
concerning pending patent applications; or
    (f) Conferring a right to use in any advertising, publicity or 
otherwise, any trademark or trade name of LICENSOR; or
    (g) Granting by implication, estoppel or otherwise, any licenses 
or rights under patents other than the Licensed Patents.

Article VI--Assignments

    6.1  This Agreement shall not be assigned by Licensee, nor shall 
it pass by succession in ownership of all, substantially all or any 
part of Licensee's business interests, without the prior written 
consent of Licensor. Any attempted assignment or passage by 
succession shall be void.

Article VII--Communication

    7.1  Any notice or other communication required or permitted to 
be made or given to a party hereto pursuant to this Agreement shall 
be sufficiently made or given on the date of mailing if sent to the 
Party by certified or registered mail, postage prepaid, addressed to 
it at its address set forth, or to such other address as it shall 
designate by written notice to the other Party as follows:
    In the case of Licensor: Chief Executive Officer, 3D Systems 
Corporation, 26081 Avenue Hall, Valencia, CA 91355.
    In the case of Licensee: Geshaftsfuhrer, EOS GmbH Electro 
Optical Systems, Pasinger Str. 2, D-82152 Planegg, Munich, Germany.

VIII--Miscellaneous

    8.1  Execution. This Agreement will not be binding upon the 
Parties until it has been signed hereinbelow on behalf of each 
Party, in which event it shall be effective as of the date first 
above written. No amendment or modification hereof shall be valid or 
binding upon the Parties unless made in writing and signed as 
aforesaid. The effectiveness of this Agreement shall be subject to 
the completion of the Settlement, Purchase and Transfer Agreement 
between the Parties dated August 27, 1997 and, if such agreement is 
not completed, or is thereafter held invalid, void ab initio, or 
otherwise rendered ineffective, then this agreement shall be void ab 
initio as well.
    8.2  Integration. This Agreement embodies the entire 
understanding of the Parties and shall supersede all previous 
communications, representations or undertakings, either verbal or 
written between the Parties relating to the subject matter hereof.
    8.3  Indemnification. Licensee agrees to indemnify and hold 
harmless Licensor, its officers, employees and agents from and 
against any and all claims, damages and liabilities asserted by 
third parties, both government and private, arising from Licensee's 
assertion of rights under Licensed Patents and the sale and use of 
products licensed hereunder.
    8.4  Anonymity. Licensee shall have no right to use the names or 
other designation of Licensor in connection with any sales or 
promotion of products licensed hereunder without the express consent 
of Licensor.
    8.5  Severability. If any provision or provisions of this 
Agreement shall be held to be invalid, illegal or unenforceable, the 
validity, legality and enforceability of the remaining provisions 
shall not in any way be affected or impaired thereby.
    8.6  Governing Law and Dispute Resolution. This Agreement shall 
be governed and interpreted in accordance with the substantive laws 
of the State of California irrespective of any choice of law rules 
in the State of California or in any other jurisdiction. The parties 
agree that any action for relief based in whole or in part on this 
Agreement (or the breach thereof) or otherwise relating in whole or 
in part to this Agreement shall be filed in, and the parties consent 
to personal jurisdiction and venue in, the Federal and State Courts 
closest to the above-identified place of business of 3D Systems, 
Inc. in Valencia (Los Angeles County), California having subject 
matter jurisdiction over such action. In any such action between the 
parties, the prevailing party shall be entitled to recover (in 
addition to any other relief awarded or granted) its reasonable 
costs and expenses (including attorneys' fees) incurred in the 
proceeding. This Agreement has been concluded in English (American 
legal usage) and if translated into German for any purpose, in case 
of discrepancy, the English text shall prevail.
    8.7  Headings, Tense and Gender. The headings of the several 
sections are inserted for convenience of reference only, and are not 
intended to be part of or to affect the meaning or interpretation of 
this Agreement.

[[Page 11135]]

In this Agreement, where the context so permits, the singular shall 
include the plural, and vice versa, and references to a particular 
gender shall include any other gender.
    8.8  No Waiver. Failure by any Party to enforce any provision of 
this Agreement or assert a claim on account of breach hereof shall 
not be deemed a waiver of its right to enforce the same or any other 
provision hereof on the occasion of a subsequent breach.
    8.9  Remedies. The remedies provided in this Agreement are not 
and shall not be deemed to be exclusive and shall be in addition to 
any other remedies which any Party may have at law or in equity.
    8.10  Independent Contractors. The Parties hereto are 
independent contractors and are not and shall not be considered as 
joint venturers, partners, employers, or agents of each other, and 
none shall have the power to bind or obligate the other except as 
set forth in this Agreement.
    8.11  Force Majeure. No Party hereto shall be liable in damages 
or have the right to cancel this Agreement for any delay or default 
in performing hereunder if such delay or default is caused by 
conditions beyond its control, including but not limited to acts of 
God, government restrictions, wars or insurrections.
    8.12  Counterparts. This Agreement may be executed in three (3) 
or more counterparts, each of which shall be deemed an original, but 
all of which shall constitute one and the same instrument.
    In Witness Whereof, the Parties hereto have caused this 
Agreement to be duly executed as of the date first above written.

3D Systems Corporation.

Sid Alpert, Vice President, General Counsel.

Witness: Brenda L. Webb.

EOS GmbH Electro Optical Systems

Hans J. Langer, Chief Executive Officer.

Witness: Elmor Dimmelmeier.

News Releases

3D Systems Completes Acquisition of RPC

Newly Branded Stereolithography Materials To be Developed and 
Manufactured in 2002

Contacts: Jeff Krinks, Public Relations Manager,
    (661) 295-5600, ext. 2910, [email protected].
    Trudy Self, Self & Associates, (818) 880-5437, [email protected].

    Valencia, Calif., Sept. 19, 2001--3D Systems Corp. (Nasdaq: 
TDSC) today announced it has completed its acquisition of materials 
developer and manufacturer RPC Ltd.
    RPC, now a wholly owned subsidiary of 3D Systems, will continue 
to manufacture and distribute from its headquarters in Marly, 
Switzerland, where it has developed 16 stereolithography (SL) 
materials for SLA systems.
    ``When our current obligation for SL material development ends 
in February 2002, we will work with RPC to further enhance our SL 
material product lines and develop new materials,'' said Grant 
Flaharty, senior vice president of worldwide sales and marketing for 
3D Systems. ``The combination of RPC and 3D Systems allows us to add 
a greater materials focus to the high-quality hardware customers 
have come to expect. We plan to provide a full range of materials 
with comparable or improved properties.''
    RPC's materials are fully compatible with 3D Systems' SLA 
product line and provide a variety of properties, including 
durability, heat resistance and detailed surface finish. Any 
questions regarding RPC materials should be directed to RPC at (41) 
26 439 95 90 or www.rpc.ch.

About 3D Systems

    Founded in 1986, 3D Systems provides solid imaging products and 
solutions that help reduce the time and cost of designing products 
and facilitate direct and indirect manufacturing. Its systems 
utilize patented technologies that create physical objects from 
digital input.
    3D Systems currently offers the ThermoJet solid object 
printer, stereolithography (SLA) systems and selective 
laser sintering (SLS) systems, as well as related software 
and materials. Product pricing in the U.S. ranges from $49,995, for 
the ThermoJet printer, to $799,000 for the high-end SLA 7000 system. 
The company licenses the complementary 3D Keltool process, 
a method for producing steel mold inserts, and currently is 
developing systems that use composite paste materials for direct 
manufacturing. In August, 3D Systems merged with DTM Corp.
    More information on the company is available at 
www.3dsystems.com, or by phoning 888/337-9786, extension 791, or 
661/295-5600 internationally. An investor packet can be obtained by 
calling 800/757-1799.

About RPC

    Based in Marly, Switzerland, RPC develops and distributes a 
complete range of materials used in SLA solid imaging systems. Since 
its founding in 1997, the company's R&D efforts have concentrated on 
thermosetting and photopolymer materials as well as laser 
technology. The company has introduced 16 resins for all three laser 
configurations on the SLA machines.

    Note to editors: ThermoJet, SLA, SLS, Keltool and the 3D logo 
are registered trademarks of 3D Systems.

    Certain statements in this news release may include forward-
looking statements that express the expectation, prediction, belief 
or projection of 3D Systems. These statements involve known and 
unknown risks, uncertainties and other factors that may cause the 
actual results, performance and achievement of 3D systems to be 
materially and adversely different from any future results, 
performance or achievement expressed or implied by these forward-
looking statements. Factors that may cause actual results to differ 
from the forward-looking statements contained in this release and 
that may affect the company's prospects in general include, but are 
not limited to: worldwide economic conditions; successful 
enhancement of the current RPC product line in a timely manner; 
RPC's ability to produce sufficient quantities of material to meet 
customer needs; actions of competitors, particularly materials 
producers, all of which have considerably more resources at their 
disposal than 3D Systems; actions of customers and their acceptance 
of RPC's products, and such other factors as are described in the 
companies' filings with the Securities and Exchange Commission, 
including annual reports on Form 10-K for the year ended Dec. 31, 
2000, quarterly reports on Form 10-Q for the quarters ended March 31 
and June 30, 2001, and 3D Systems' current reports on Form 8-K filed 
on April 6, April 10, and Sept. 4, 2001.

News Releases

3D Systems and Vantico Terminate Relationship

3D Systems Agree To Acquire RPC Ltd.

Contacts:
    Jeff Krinks, Public Relations Manager (3D Systems), (661) 295-
5600, ext. 2910, [email protected].
    Trudy Self, Self & Associates (3D Systems), (818) 880-5437, 
[email protected].
    Valencia, Calif., Aug. 24, 2001--3D Systems Corp. (Nasdaq: TDSC) 
today announced the severance of its distributor and joint 
development agreements with Vantico Inc., a subsidiary of Vantico 
International. 3D Systems has been the exclusive worldwide 
distributor (except for Japan) of Vantico liquid resins use in 
stereolithography systems.
    Under the terms of the distributor, 3D Systems will continue to 
distribute Vantico resins for a period of six months. After that 
period, the distribution agreement will no longer limit 3D Systems 
from sourcing and developing resins independently.
    3D Systems' termination of the joint development agreement with 
Vantico will prohibit the two companies from exploiting, for a 
period of three years, any proprietary information owned or 
developed by the other party. However, the parties dispute the 
meaning and impact of this provision, and, though conversations 
between the parties continue, arbitration proceedings have begun 
regarding this matter.
    3D Systems believe a significant portion of the Vantico resins 
currently used in 3D Systems machines were developed and enhanced by 
3D Systems and that its proprietary information is pervasive in a 
substantial portion of Vantico's products currently being 
manufactured, as well as those under development. As a result, 3D 
Systems believes that Vantico would be prevented from separately 
marketing those products, unless the companies reach a subsequent 
agreement.
    ``These developments present a great opportunity for 3D Systems 
to further enhance the materials currently used in our systems while 
maintaining our existing base of materials recurring revenue,'' said 
Brian K. Service, 3D Systems' president and chief executive officer. 
``During this transition period and beyond, we expect to continue to 
provide quality materials to our customers and further position 
ourselves to be a much stronger supplier of materials in the 
future.''
    ``We will continue to be the exclusive distributor of Vantico 
materials for the next six months and may arrange with Vantico to

[[Page 11136]]

continue to distribute its materials beyond that time,'' Service 
added. ``We believe that we will continue to be able to offer our 
customers a full range of materials that are either substitutable or 
offer improved speed, accuracy, surface finish and functionality. It 
is our goal to provide as smooth a transition to our customers as 
possible.''
    3D Systems also announced it has signed a letter of intent to 
acquire Rapid Prototyping Chemicals (RPC) Ltd. of Marly, 
Switzerland. RPC is an independent supplier of stereolithography 
resins.
    ``We are excited about adding RPC's materials offerings to the 
3D Systems family of solid imaging products,'' said Grant Flaharty, 
senior vice president of worldwide sales and marketing for 3D 
Systems. ``This proposed acquisition reflects our focus on materials 
versatility and our commitment to providing the best solid imaging 
solutions for our customers.''
    ``RPC offers a wide range of materials that have been well 
received in the market. Our intention is to continue this trend and 
further enhance the synergy of our systems and materials,'' Flaharty 
said.

About 3D Systems

    3D Systems provides solid imaging products and services that 
substantially reduce the time and cost required to design, test and 
manufacture products. The company's systems utilize patented 
technologies that create physical objects from digital input.
    3D Systems currently offers the ThermoJet office 
printer and SLA industrial systems, which include 
proprietary software and materials. Products pricing in the U.S. 
begins at $49,995 for the company's entry-level printer and extends 
up to $799,000 for its feature-rich industrial SLA 7000 system. The 
company also licenses the 3D Keltool process, a 
complementary application that produces injection molding and die 
casting inserts from SLA system master patterns. In February 2001, 
3D Systems announced it acquired OptoForm, a French company that has 
developed direct composite manufacturing systems that use paste 
materials. In April 2001, the company announced the signing of a 
definitive merger agreement to purchase DTM Corp., and it expects to 
complete the merger this month.
    Based in Valencia, Calif., 3D Systems was founded in 1986 and is 
recognized as a world technology leader in solid imaging. For 
additional information, visit the company's website at 
www.3dsystems.com or phone 888/337-9786, ext. 788. For an investor 
packet, call the company's shareholder communications service at 
800/757-1799.

About DTM Corporation

    DTM develops, manufactures and markets advanced rapid 
prototyping and manufacturing systems, including the 
Sinterstation 2500plus and Vanguard systems. A growing 
number of manufacturers and service bureaus worldwide use these 
systems to rapidly create 3-D prototypes, parts, molds, tooling and 
casting patterns.
    All Sinterstation SLS systems utilize a process called 
selective laser sintering to create 3-D objects from computer-aided 
design (CAD) data. The Sinterstation system creates the part in a 
matter of hours using a CO2 laser to fuse together layers of 
powdered plastic, metal or ceramic powers. The results are durable 
3-D parts produced in a fraction of the time it would typically take 
using other traditional methods.
    Among the companies currently using Sinterstation systems are 
manufacturers such as BMW, Boeing, Pitney Bowes, Rockwell 
International, Volvo Penta and others. In addition, numerous service 
bureaus throughout the world include Sinterstation systems in their 
offerings to companies with only an occasional need for rapidly 
produced functional prototypes and parts. Parts and prototypes made 
on Sinterstation systems also are used in non-industrial settings, 
such as science and medicine. For more information on DTM's systems, 
customers and applications, visit the company's website at www.dtm-corp.com.

About RPC

    Based on Marly, Switzerland, RPC develops and distributes a 
complete range of materials used in SLA solid imaging systems. Since 
its founding in 1997, the company's R&D efforts have concentrated on 
thermosetting and photopolymer materials as well as laser 
technology. The company has introduced 13 resins for all three laser 
configurations on the SLA machines and anticipates 7% to 10% market 
growth this year for its materials. For more information, visit 
www.rpc.ch.

    Note to editors: ThermoJet, SLA, Keitool and the 3D logo are 
registered trademarks of 3D Systems. Sinterstation and SLS are 
registered trademarks, and DuraForm and Vanguard are trademarks, of 
DTM Corporation.

    Certain statements in this news release may include forward-
looking statements which express the expectation, prediction, belief 
or projection of 3D Systems. These statements involve known and 
unknown risks, uncertainties and other factors that may cause the 
actual results, performance and achievement of 3D Systems to be 
materially and adversely different from any future results, 
performance or achievement expressed or implied by these forward-
looking statements. Factors that may cause actual results to differ 
from the forward-looking statements contained in this release and 
that may affect the company's prospects in general include, but are 
not limited to: the funding of amounts of capital adequate to 
provide for the working capital needs of the company; actions of 
competitors and customers; reliance on single or limited suppliers, 
the ability to timely and cost-effectively identify and obtain or 
independently develop resins adequate for use with 3D Systems' 
products, the negotiation and execution of definitive documents to 
acquire RPC, the efficient integration of DTM into the business of 
3D Systems, and such other factors as are described in the 
companies' filings with the Securities and Exchange Commission, 
including annual reports on Form 10-K for the year ended Dec. 31, 
2000, quarterly reports on Form 10-Q for the quarters ended March 31 
and June 30, 2001, and 3D Systems' current reports on Form 8-K filed 
on April 6 and April 10, 2001.

News Releases

3D Systems Sells 2,000th Machine

Includes 100 SLA 7000 Systems Shipped

Contacts:
    Jeff Krinks, Public Relations Manager, (661) 295-5600, ext. 
2910, [email protected].
    Trudy Self, Self & Associates, (818) 880-5437, [email protected].
    Valencia, Calif., May 29, 2001--3D Systems Corp. (Nasdaq: TDSC) 
today announced the sale of its 2,000th solid imaging system. The 
company also reached a milestone by shipping its 100th high-end 
SLA 7000 system since its introduction in February 1999.
    ``We're pleased that, throughout 3D Systems' 15-year history, 
our products have continued to gain market acceptance,'' said Chuck 
Hull, company founder and chief technology officer. ``Even as we 
celebrate the 2,000th system sold, we look forward to accelerating 
our growth via new technologies and solutions.''
    Hull added, ``We anticipate the functionality of our new Viper 
si2TM SLA system will be attractive to the marketplace--
much like its predecessor, the SLA 250 system. And we're excited 
about our current R&D work with non-liquid material systems, which 
will address the growing market for rapid tooling and direct and 
indirect in-line manufacturing applications.''
    The first solid imaging machine off 3D Systems' production line 
in 1986 was the SLA 1 system. Subsequent machines included the SLA 
190, 250, 350 and 500 systems. In 1996, 3D Systems introduced its 
first solid object modeler, the ActuaTM printer, which 
was replaced in 1999 by the ThermoJet printer.
    In 2000, 3D Systems shipped 387 systems globally with revenues 
of $109.7 million. its $27.9 million revenues for first-quarter 2001 
were 21.3% greater than its first-quarter 2000 revenues.

100th SLA 7000 System Shipped

    Reaching another milestone, 3D Systems shipped the 100th high-
end SLA 7000 system to The Boeing Company for use at its 
PhantomWorks facility in St. Louis. 3D Systems introduced the SLA 
7000 system in February 1999 and shipped 29 that year and 57 in 
2000.
    ``We've used stereolithography technology since 1989 for 
aircraft configuration and marketing models,'' said Ed Langenderfer, 
prototype design specialist engineer at Boeing's PhantomWorks, ``Our 
main application of the technology is wind-tunnel testing.''
    According to Langenderfer, the group recently used 
stereolithography for the development of the U.S. Air Force's 
Unmanned Combat Air Vehicle (UCAV). ``We made various flaps and 
aileron configurations to verify computer analyses. And we're 
planning to move into more advanced tooling and manufacturing 
applications with our SLA systems.''
    Grant Flaharty, senior vice president of worldwide sales and 
marketing at 3D Systems, said, ``We are pleased that the SLA 7000 
system continues to gain acceptance in

[[Page 11137]]

the market. As our installed base of high-end systems grows, we have 
more opportunities for ongoing support and materials sales. In 2000, 
our materials sales accounted for 23% of total revenue.''

About 3D Systems

    3D Systems provides solid imaging products and services that 
substantially reduce the time and cost required to design, test and 
manufacture products. The company's systems utilize patented 
technologies that create physical objects from digital input.
    3D Systems currently offers the ThermoJet office 
printer and SLA industrial systems, which include 
proprietary software and materials. Product pricing in the U.S. 
begins at $49,995 for the company's entry-level printer and extends 
up to $799,000 for its feature-rich industrial SLA 7000 system. The 
company also licenses the 3D Keltool process, a 
complementary application that produces injection molding and die 
casting inserts from SLA system master patterns. In February 2001, 
3D Systems announced it acquired OptoForm, a French company that 
developed stereolithography systems that use paste materials. In 
April 2001, the company announced the signing of a definitive merger 
agreement to purchase DTM Corporation, contingent on, among other 
conditions, closing the loan funding.
    Based in Valencia, Calif., 3D Systems was founded in 1986 and is 
recognized as the world technology and market leader in solid 
imaging. For additional information, visit the company's website at 
www.3dsystems.com or phone 888/337-9786, ext. 775. For an investor 
packet, call the company's shareholder communications service at 
800/757-1799.

    Note to editors: Actua is a trademark; and ThermoJet, SLA, 
Keltool and the 3D logo are registered trademarks of 3D Systems.

    Certain statements in this news release may include forward-
looking statements which express the expectation, prediction, belief 
or projection of 3D Systems. These statements involve known and 
unknown risks, uncertainties and other factors that may cause the 
actual results, performance and achievement of 3D Systems to be 
materially different from any future results, performance or 
achievement expressed or implied by these forward-looking 
statements. Factors that may cause actual results to differ from the 
forward-looking statements contained in this release and that may 
affect the company's prospects in general include, but are not 
limited to: changes in general and industry-wide economic and 
business conditions; the availability of capital on acceptable 
terms; the funding of amounts adequate to acquire DTM Corporation 
and provide for the working capital needs of 3D Systems under the 
definitive loan document; the results of the inquiry by the 
Department of Justice into the acquisition by 3D Systems of DTM 
Corporation; actions of competitors and customers; the uncertain 
outcome of litigation, including the class action lawsuit filed in 
connection with the acquisition of DTM Corporation; the impact of 
competitive products and pricing; the availability and acceptance of 
products generally; the extent to which the companies are able to 
develop new products and markets for their products; and such other 
factors as are described in 3D Systems' filings with the Securities 
and Exchange Commission, including its annual report on Form 10-K 
for the year ended Dec. 31, 2000, its quarterly report on Form 10-Q 
for the quarter ended March 30, 2001, and its current reports on 
Form 8-K filed on April 6 and April 10, 2001.

October 23, 2001.
Dear Friend,

    With the federal government taking steps to spur the economy, 3D 
Systems has developed various programs to provide our customer's 
with the solutions they need to continue their growth and expansion. 
This Instant Rebate Program * provides accessibility to solid 
imaging systems that have greatly enhanced the solid imaging and 
manufacturing process.
    We believe that businesses will recover from these difficult 
conditions and there will be a continue demand for cost effective 
solutions.

          The Instant Rebate Program for Solid Imaging Systems
------------------------------------------------------------------------
         Solid imaging system                 Instant rebate offer
------------------------------------------------------------------------
SLA 7000 system.......................  $200,000 instant rebate *.
SLA 5000 system.......................  $100,000 instant rebate *.
SLA 3500 system.......................  $50,000 instant rebate *.
------------------------------------------------------------------------
* Instant Rebate Program is based on standard list U.S. prices, and may
  not be combined with any other promotions or discounts. Offer valid
  until December 15, 2001. The Instant Rebate Program is restricted to
  U.S.-based companies and the shipment of systems are limited to U.S.
  locations. All shipment of systems must occur by December 31, 2001.

    3D Systems is offering the Instant Rebate Program for business 
that are making capital investments. Attractive leasing programs are 
available; including six-month free financing,\1\ to assist you in 
making your year-end capital purchase decision and allow you to 
update or increase your solid imaging capacity.
---------------------------------------------------------------------------

    \1\ No payments for six-months, certain restrictions apply.
---------------------------------------------------------------------------

    To express your interest in these attractive offerings, please 
contact 3D Systems at 1 (888) 337-9786, or (661) 295-5600 ext 2882.

Sincerely,
Dwight Williams,
VP Sales for Americas, 3D Systems.

CMET

EOS GmbH, Pasinge, Strasse 2, D-82152 Planegg Munchen, Germany, 
President, Dr. Hans J. Langer.

Dear Dr. Langer,

    Please accept my discourteous manner to write a letter directly 
to you. At first, I would like to introduce our company and myself.
    My name is Ken Sahara and I am president of CMET Inc. CMET Inc. 
is not a big company but a leading company of the Stereolithography 
(SLA) market in Asia. Last December NTT-Data CMET Inc. was acquired 
by TEIJIN SEIKI Co., Ltd. and changed its name to CMET Inc. I was 
dispatched to CMET Inc. as a president from TEIJIN SEIKI Co., Ltd. 
at that time. And, at this April Stereolithography business of 
TEIJIN SEIKI integrated to CMET.
    At the beginning of this July, TEIJIN SEIKI and CMET were 
requested from United States Department of Justice (DOJ) regarding 
the Marge of 3D Systems and DTM to make a presentation about the 
will and the way to enter the SLA or SLS market in the USA.
    At that time, we heard that your company, EOS also has a keen 
interest to enter the USA market and already made a good 
presentation to DOJ.
    At the moment, we suppose that EOS and CMET are waiting for the 
judge of DOJ to step up the next stage.
    At this stage, I am not sure, it is proper time or not. But, I 
believe that we can discuss or exchange information about Market, 
Products and others. Because, your company and our company are not 
competitive company in the market and I am convinced that such 
discussion will help to make each company's short or mid-term 
strategy.
    If you can agree with my proposal to discuss, I am very happy to 
meet you soon in your company or in our company. Your E-mail answer 
is more convenient for me.
    Again, please accept my apology to write you direct. I do hope 
that you will be able to spare time to write your answer. Please 
treat this proposal as a confidential matter between you and I.

Sincerely yours,
Ken Sahara,
President, CMET Inc.

    THOMAS, WALTON & GRAVES LLP, Philip J. Graves (SB#: 153441), 550 
South Hope Street, Suite 1000, Los Angeles, California 90071, 
Telephone: (213) 488-1600, Facsimile: (213) 228-0256.
    Attorneys for Defendants 3D SYSTEMS, INC., DTM CORPORATION, and 
COMPRESSION, a division of MOLL INDUSTRIES, INC.

United States District Court for the Central District of California 
Southern Division

[Case No. SA CV 00-1230 DOC (MLGx)]

EOS GMBH Electro Optical Systems, Plaintiff, v. 3d Systems, Inc., 
DTM Corporation, and Compression, a division of MOLL Industries, 
Inc., Defendants and Related Actions

3D Systems, Inc.'s Notice of Motion and Motion in Support of its Motion 
for Summary Adjudication Re Damages Under the 3D Patents Against EOS 
GmbH Electro Optical Systems; Declaration of Philip J. Graves in 
Support Thereof

    Date: December 10, 2001.
    Time: 8:30 a.m.
    Ctrm: 9D, Honorable David O. Carter.
    To All Parties and to Their Attorneys of Record:
    Please Take Notice that on December 10, 2001, at 8:30 a.m. or as 
soon thereafter as the matter may be heard, before the Honorable 
David O. Carter, in the above-entitled Court located at 411 West 
Fourth Street, Suite 1053,

[[Page 11138]]

Santa Ana, California 92701, Defendant 3D Systems Inc. (``3D'') will 
and hereby does move for summary adjudication under Rules 56(d) of 
the Federal Rules of Civil Procedure and Rule 56-4 of the Local 
Rules of the United States District Court for the Central District 
of California, that plaintiff EOS GmbH Electro Optical Systems 
(``EOS'') shall recover no relief, by way of damages, injunction or 
otherwise, as against 3D under U.S. Patent No. 4,929,402, U.S. 
Patent No. 5,554,336, U.S. Patent No. 5,630,981, U.S. Patent No. 
5,059,359, U.S. Patent No. 5,137,662, U.S. Patent No. 5,174,931, 
U.S. Patent No. 5,182,056, U.S. Patent No. 5,184,307, U.S. Patent 
No. 5,345,391, U.S. Patent No. 5,609,812, U.S. Patent No. 5,609,813, 
U.S. Patent No. 5,711,911, U.S. Patent No. 5,779,967, U.S. Patent 
No. 5,785,918 and U.S. Patent No. 5,814,265 based upon the 
manufacture, use, sale or offer for sale of any laser sintering 
system that has occurred or shall occur after August 31, 2001.
    This Court should grant 3D summary adjudication as to this issue 
for the following reasons. First, EOS is precluded under the August 
27, 1997 3D-EOS License Agreement from asserting any claims for 
infringement under the licensed 3D patents against 3D based on the 
manufacture, use, sale or offer for sale of any apparatus, including 
laser sintering systems. Second, on August 31, 2001, DTM was merged 
into 3D and ceased to exist; accordingly, it is now 3D, not DTM, 
that is making and selling the accused laser sintering systems. 
These facts are undisputed; indeed, this Court has already found 
both of these facts to be true in prior Orders entered in this case. 
Thus, there is no genuine issue regarding the fact that EOS is 
entitled to recover no damages or other relief as against 3D under 
the licensed 3D patents based upon the manufacture or sale of the 
accused laser sintering systems after August 31, 2001.
    This motion is made following the conference of counsel pursuant 
to Rule 7-3 of the Local Rules of the United States District Court 
for the Central District of California, which took place on October 
16 and November 7 and 9, 2001. Counsel for 3D informed counsel for 
EOS by letter on October 17, 2001, that 3D intended to move for 
summary adjudication that EOS may recover no damages based on 3D's 
manufacture, use, sale and offering for sale of laser sintering 
systems, and that therefore any damages recovered by EOS in this 
action shall only run for the period up to and including August 30, 
2001. (Graves Decl. para. 2; Ex. 1) Subsequently, on November 7, 
2001, counsel for 3D and counsel for EOS discussed the grounds for 
3D's motion for summary adjudication and the evidence that would be 
pertinent to adjudication of the motion. (Graves Decl. para. 3) On 
November 9, 2001, counsel engaged in further discussion regarding 
these matters. (Graves Decl. para. 4) No resolution was 
accomplished. (Graves Decl. para. 5)
    This Motion is based on this notice of motion, the supporting 
memorandum of points and authorities, the separate statement of 
uncontroverted facts and conclusions of law, the declarations of A. 
Sidney Alpert, Karen Shotting and Philip J. Graves, the attached 
exhibits, all papers and pleadings on file herein, and such other 
evidence as the Court may receive at or before the hearing on this 
matter.

    Dated: November 12, 2001.
Thomas, Walton & Graves LLP.

Philip J. Graves,
Attorneys for Defendants 3D Systems, Inc., DTM Corporation, and 
Compression, a division of Moll Industries, Inc.

Declaration of Philip J. Graves

    I, Philip Graves declare as follows:
    1. I am a partner at the law firm of Thomas, Walton & Graves LLP 
(``TWG''), counsel of record for 3D Systems, Inc. (``3D'') in the 
case entitled EOS GmbH Electro Optical Systems, et al. v. DTM Corp., 
at al., Case No. SA CV 00-1230 DOC (MLGx). I am a member in good 
standing of the State Bar of California and have been admitted to 
practice before this Court. I have personal knowledge of the facts 
set forth in this declaration and, if called as a witness, could and 
would testify competently to such facts under oath.
    2. On October 17, 2001, I notified Michael Gannon, counsel for 
EOS GmbH Electro Optical Systems (``EOS''), by letter of 3D's 
intention to move for summary adjudication that EOS may recover no 
damages based on 3D's manufacture, use, sale and offering for sale 
of laser sintering systems, and that therefore any damages recovered 
by EOS in this action shall only run for the period up to and 
including August 30, 2001. A true and correct copy of this letter is 
attached hereto as Exhibit 1.
    3. On November 7, 2001, Mr. Gannon and I discussed the grounds 
for 3D's motion for summary adjudication and the evidence that would 
be pertinent to adjudication of the motion.
    4. On November 9, 2001, Mr. Gannon and I engaged in further 
discussion regarding these matters.
    5. No resolution was accomplished.
    Executed on November 12, 2001, at Los Angeles, California.
    I declare under penalty of perjury under the laws of the United 
States of America that the foregoing is true and correct.

Philip Graves.

Thomas, Walton & Graves LLP, Lawyers

October 17, 2001.

By Facsimile

Michael D. Gannon, Esq., Baniak Pine & Gannon, 150 North Wacker 
Drive, Ste. 1200, Chicago, Illinois 60606.

    Re: EOS GmbH Electro Optical Systems v. DTM Corporation and 
Compression, Case No. SACV 00-1230 DOC

Dear Mike:

    Supplementing my letter of yesterday on this subject, I am 
writing pursuant to Local Rule 7.4.1 to inform you that 3D Systems, 
Inc. (``3D'') intends to move for leave to file a supplemental or 
amended pleading that seeks a declaratory judgment against EOS GmbH 
Electro Optical Systems (``EOS'') to the effect that 3D's 
manufacture, use, sale and offering for sale of laser sintering 
systems (or any other type of rapid prototyping system) does not and 
will not constitute infringement of any patents licensed to EOS 
pursuant to the August 27, 1997 3D-EOS License Agreement.
    3D also intends to move for summary adjudication that EOS may 
recover no damages in the above-referenced action based on 3D's 
manufacture, use, sale and offering for sale of laser sintering 
systems, and that therefore if EOS establishes any right to damages 
based on DTM Corporation's manufacture, use, sale and offering for 
sale of laser sintering systems, such damages shall only run for the 
period up to and including August 30, 2001.
    Please give me a call at your earliest convenience to discuss 
whether EOS is willing to stipulate to the filing of 3D's amended or 
supplemental pleading, and to entry of the other relief that will be 
sought by 3D.

Sincerely,

Philip J. Graves.

Proof of Service

State of California, County of Los Angeles

    I am employed in the County of Los Angeles, State of California. 
I am over the age of 18 and not a party to the within action. My 
business address is 1511 West Beverly Blvd., Los Angeles, CA 90026.
    On November 12, 2001, I served the foregoing document described 
as 3D Sytems, Inc.'s Notice of Motion and Motion in Support of its 
Motion for Summary Adjudication re Damages Under the 3D Patents 
Against EOS GmbH Electro Optical Systems; Declaration of Philip J. 
Graves in Support Thereof on the interested parties in this action 
by placing a true copy thereof in a sealed envelope addressed as 
follows: Kenneth L. Wilton, Small Larkin LLP, 10940 Wilshire 
Boulevard, Suite 1800, Los Angeles, CA 90024.
    I caused such envelope to be delivered by hand to the offices of 
each interested party.

    Executed on November 12, 2001 at Los Angeles, California.
    I declare under penalty of perjury that the foregoing is true 
and correct.

James McLean.

    Thomas, Walton & Graves LLP, Philip J. Graves (SB#: 153441), 550 
South Hope Street, Suite 1000, Los Angeles, California 90071, 
Telephone: (213) 488-1600, Facsimile: (213) 228-0256.
    Attorneys for Defendants 3D Systems, Inc., DTM Corporation, and 
Compression, a division of Moll Industries, Inc.

[[Page 11139]]

United States District Court for the Central District of California 
Southern Division

[Case No. SA CV 00-1230 DOC (MLGx)]

EOS GMBH Electro Optical Systems, Plaintiff, v. 3D Systems, Inc., 
DTM Corporation, and Compression, a division of Moll Industries, 
Inc., Defendants And Related Actions

3D Systems, Inc.'s; Memorandum of Points and Authorities in Support of 
its Motion for Summary Adjudication Re Damages Under the 3D Patents 
Against EOS GmbH Electro Optical Systems; Declarations of Karen 
Shotting, A. Sidney Alpert and Philip Graves in Support Thereof

    Date: December 10, 2001.
    Time: 8:30 a.m.
    Ctrm: 9D, Honorable David O. Carter.

Proof of Service

State of California, County of Los Angeles

    I am employed in the County of Los Angeles, State of California. 
I am over the age of 18 and not a party to the within action. My 
business address is 550 S. Hope Street. Suite 1000, Los Angeles, CA 
90071-2644.
    On November 12, 2001, I served the foregoing document described 
as 3D Systems, Inc.'s Notice of Motion and Motion in Support of its 
Motion for Summary Adjudication Re Damages Under the 3D Patents 
against EOS GmbH Electro Optical Systems; Declaration of Philip J. 
Graves in Support Thereof on each interested party, as follows: 
Michael H. Baniak, Michael D. Gannon, Baniak Pine & Gannon, 150 
North Wacker Drive, S. 1200, Chicago, IL 60606.
    I deposited such envelope in the mail at Los Angeles, 
California. The envelope was mailed with postage thereon fully 
prepaid. I am readily familiar with the firm's practice of 
collection and processing correspondence for mailing. In the 
ordinary course of business under that practice, it would be 
deposited with U.S. Postal Service on the same day that it is 
collected and processed, with postage thereon fully prepaid at Los 
Angeles, California. I am aware that, on motion of the party served, 
service is presumed invalid if the postal cancellation date or 
postage meter date is more than one day after the date of deposit 
for mailing stated in the affidavit.
    I declare that I am employed in the office of a member of the 
bar of this Court at whose direction the service was made. I hereby 
declare under penalty of perjury under the laws of the United States 
of America that the foregoing is true and correct.

    Executed on November 12, 2001 at Los Angeles, California.

Nancy R. Fischer.

Table of Contents

I. Preliminary Statement

II. Statement of Facts

A. The 3D-EOS License Agreement
B. EOS' Infringement Suit
C. 3D's Merger with DTM

III. Statement of Law

IV. Argument

A. This Court Must Apply California Substantive Law to the 
Interpretation of the 1997 3D-EOS License Agreement
B. EOS May Not Assert Any Claims for Infringement Under the Licensed 
3D Patents Against 3D
C. Because EOS May Not Sue 3D Under the Licensed 3D Patents, EOS 
Cannot Obtain Damages Under those Patents for any Manufacturing or 
Sales of the Accused Laser Sintering Systems that Occurred After 
August 31, 2001, the Date that DTM was Merged into 3D

V. Conclusion

Table of Authorities

Federal Cases

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 1986
Avia Group Int'l, Inc. v. L.A. Gear California, Inc., 853 F.2d 1557 
(Fed. Cir. 1988)
Brobeck, Phleger & Harrison v. Telex Corp., 602 F.2d 866 (9th Cir. 
1979)
Chan v. Society Expeditions, Inc., 123 F.3d 1287 (9th Cir. 1997)
Government Systems Advisors, Inc. v. United States, 847 F.2d 811 
(Fed. Cir. 1988)
Magnesystems, Inc. v. Nikken, Inc., 933 F. Supp. 944 (C.D. Cal. 
1996)
McCoy v. Mitsuboshi Cutlery, Inc., 67 F.3d 917 (Fed. Cir. 1995)
Wang Laboratories, Inc. v. Kagan, 990 F.2d 1126 (9th Cir. 1993)

State Cases

Appalachian Ins. Co. v. McDonnell Douglas Corp., 214 Cal. App. 1, 
262 Cal. Rptr. 716 (1989)
Nedlloyd Lines B.V. v. Seawinds Ltd., 3 Cal. 4th 459, 11 Cal. Rptr. 
2d 330 (1992)
Parsons v. Bristol Development Co., 62 Cal. 2d 861, (1965)
Sunniland Fruit, Inc. v. Verni, 233 Cal. App. 3d 892, 284 Cal. Rptr. 
824 (1991)

Federal Statutes

28 U.S.C. Sec. 1338

State Statutes

Cal. Civ. Code Sec. 1638
Cal. Civ. Code Sec. 1639
Cal. Civ. Code Sec. 1646.5
Cal. Corp. Code Sec. 1107(a)
Cal. Corp. Code Sec. 1108(b)

Statutes

C.D. Cal. Local Rule 7.14.4
Fed. R. Civ. P. 56(e)

I. Preliminary Statement

    Defendant 3D Systems, Inc. (``3D'') hereby moves for summary 
adjudication that plaintiff EOS GmbH Electro Optical Systems 
(``EOS'') may recover no damages or other relief as against 3D or 
nominal defendant DTM under the 3D patents asserted by EOS in this 
action based upon the manufacture, use, sale or offer for sale of 
any of the accused laser sintering systems that occurs after August 
31, 2001. 3D's motion rests on the following two undisputed facts:
     EOS expressly agreed in the August 27, 1997 3D-EOS 
License Agreement that EOS shall not assert against 3D ``any claims 
for infringement based on the manufacture, use, sale or offer for 
sale of any apparatus made or sold by [3D] under the Licensed 
Patents, at any time, for any reason, during the term of this 
License Agreement.''
     DTM Corporation (``DTM'') was merged into 3D on August 
31, 2001, with 3D as the surviving entity.
    EOS cannot create a genuine issue as to either of these facts; 
indeed, this Court has already found them to be true, in rulings on 
prior motions in this case. These facts foreclose any opportunity 
that EOS might otherwise have had to recover damages or other relief 
under the licensed 3D patents based upon the manufacture or sale of 
the accused laser sintering systems after August 31, 2001, because 
those activities are now being carried on by 3D, which succeeded as 
a matter of law to DTM's laser sintering operations.
    Accordingly, this Court should grant 3D's motion for summary 
adjudication that EOS is entitled to no relief under the licensed 3D 
patents as against 3D or nominal defendant DTM for any manufacture, 
use, sale or offer for sale of the accused laser sintering systems 
that occurs after August 31, 2001.

II. Statement of Facts

A. The 3D-EOS License Agreement

    On August 27, 1997, 3D and EOS\1\ entered into an agreement 
pursuant to which 3D licensed EOS under (i) all U.S. and foreign 
patents ``owned by LICENSOR as of the effective date of this 
Agreement,'' and (ii) all U.S. and foreign patents ``which may issue 
to LICENSOR,'' on applications filed prior to August 20, 2002, but 
only in the field of laser sintering. (SUF No. 1; Alpert Decl. para. 
2; Ex. 1, para. 1.1, at p. 31) EOS expressly agreed not to assert 
against 3D ``any claims for infringement based on the manufacture, 
use, sale or offer for sale of any apparatus made or sold by 
LICENSOR under the Licensed Patents, at any time, for any reason, 
during the term of this Licensed Agreement.'' (SUF No. 2; Ex. 1, 
para. 2.1(a), at p. 31) The License Agreement has an integration 
clause, and a provision stating that it is to be interpreted 
according to the substantive law of California. (SUF Nos. 3-4; Ex. 
1, para. 8.2, at p. 36)
---------------------------------------------------------------------------

    \1\ While the License Agreement identifies EOS, 3D Systems GmbH 
and 3D Systems Corporation (``3D Corp.'') as the contracting 
parties, 3D contemplated that 3D (the entity that owned the licensed 
patents) would be bound by and receive the benefit of the License 
Agreement. (Alpert Decl. para. 5) In any event, the License 
Agreement was assigned from 3D Corp. to 3D as of August 31, 2001. 
(SUF No. 5; Ex. 5 at p. 54)
---------------------------------------------------------------------------

B. EOS' Infringement Suit

    On December 14, 2000, EOS filed suit against DTM and 
Compression, alleging infringement of certain of the 3D patents that 
3D had licensed to EOS. On March 16, 2001, this Court ordered EOS to 
join 3D (the licensor of the patents under which EOS is suing DTM 
and Compression) as an involuntary plaintiff, because 3D had not 
licensed all substantial rights under the patents to EOS. (Graves 
Decl. para. 2; Ex. 2 at p. 40) Central to this Court's ruling was 
its determination that ``3D itself may still make products using the 
licensed patents'', citing to paragraph 2.1 of the License 
Agreement. (Ex. 2, at p. 40) EOS filed and served its

[[Page 11140]]

Third Amended Complaint, naming 3D as an involuntary plaintiff, on 
May 7, 2001; in its Third Amended Complaint, EOS asserted fifteen 
licensed 3D patents against DTM and Compression. (SUF No. 6; Graves 
Decl. para. 3; Ex. 6, Paras.  6-20, 22)

C. 3D's Merger with DTM

    On August 31, 2001, 3D filed with the California Secretary of 
State an Agreement of Merger between 3D and DTM. (SUF No. 7; Ex. 3 
at pp. 45-46) 3D also filed a Certificate of Approval of Agreement 
of Merger executed by the CEO and President and Secretary of 3D, and 
a Certificate of Approval of Agreement of Merger executed by the CEO 
and President and Secretary of DTM. (SUF No. 7; Ex. 3 at pp. 47-50) 
Pursuant to these documents, DTM was merged into 3D, and its 
corporate existence extinguished. (SUF No. 8) Cal. Corp. Code 
Sec. 1107(a). The laser sintering operations of the now-defunct DTM 
were acquired by 3D as a result of the merger. Cal. Corp. Code 
Sec. 1107(a).
    On October 17, this Court granted 3D's motion for 
reconsideration regarding realignment, and realigned 3D as a 
defendant. The Court explicitly held that ``On August 31, 2001, 3D 
merged DTM into 3D. DTM now no longer exists.'' (Ex. 4, at p. 52)

III. Statement of Law

    Summary adjudication is appropriate on particular facts and 
issues as to which no genuine issue of material fact exists, 
regardless of whether the motion disposes of an entire claim. Rule 
56-4, C.D. Cal. Local Rules. ``Summary judgment is as appropriate in 
a patent case as in any other.'' Avia Group Int'l Inc. v. L.A. Gear 
California, Inc., 853 F.2d 1557, 1561 (Fed. Cir. 1988) (affirming 
summary adjudication of willful infringement). Once the movant has 
shown the absence of a genuine issue of fact, the non-moving party 
has the burden of coming forth with specific evidence to demonstrate 
the existence of a genuine issue of material fact; mere denials or 
conclusory statements are insufficient. Anderson v. Liberty Lobby, 
Inc., 477 U.S. 242, 256 (1986); Fed. R. Civ. P. 56(e). ``To create a 
genuine issue of fact, the nonmovant must do more than present some 
evidence on an issue it asserts is disputed.'' Avia Group, 853 F.2d 
at 1560. As explained by the Supreme Court: ``If the evidence is 
merely colorable, * * * or is not significantly probative, summary 
judgment may be granted. Anderson, 477 U.S. at 249-50 (citations 
omitted)

IV. Argument

A. This Court Must Apply California Substantive Law to the 
Interpretation of the 1997 3D-EOS License Agreement

    The License Agreement provides that ``[t]his Agreement shall be 
governed and interpreted in accordance with the substantive laws of 
the State of California irrespective of any choice of law rules in 
the State of California or in any jurisdiction'' (Ex. 1, para. 8.6 
at p. 36) Thus, this Court must apply California law in interpreting 
paragraph 2.1(a) of the License Agreement.
    Because jurisdiction in this case is predicated on 28 U.S.C. 
Sec. 1338 rather than on diversity, the Court should look to federal 
common law rather than state law to determine the enforceability of 
the choice of law provision contained in the License Agreement. Wang 
Laboratories, Inc. v. Kagan, 990 F.2d 1126, 1128 (9th Cir. 1993). 
Federal courts generally apply the choice of law rules set forth in 
the Restatement (Second) of Conflicts of Laws. Chan v. Society 
Expeditions, Inc., 123 F.3d 1287, 1297 (9th Cir. 1997). Under the 
Restatement, `courts should enforce the parties' choice of law if 
the issue is one which the parties could have resolved by an 
explicit provision in their agreement directed to that issue.'' Id. 
(quoting Restatement (Second) Conflict of Laws Sec.  187(1)). Here, 
the issue is whether EOS may sue 3D under the licensed patents, and 
the parties did in fact resolve that issue by an explicit provision 
in the contract--paragraph 2.1(a). (Ex. 1, at p. 31) Accordingly, 
this Court must enforce the parties' choice of California 
substantive law.
    In addition, even if the issue were not subject to explicit 
resolution in the License Agreement (and, of course, it is), this 
Court would still be impelled to enforce the parties' choice of 
California law:

``unless the chosen state has no substantial relationship to the 
parties or the transaction and there is no other reasonable basis 
for the parties' choice or application of the law of the chosen 
state would be contrary to a fundamental policy of a state which has 
a materially greater interest than the chosen state in the 
determination of the particular issue and that state would be the 
state of applicable law in the absence of a choice-of-law clause.''

Id. (quoting Restatement (Second) Conflict of Laws Sec. 187(2)). 
Here, California has a substantial relationship to the parties and 
the transaction because 3D is headquartered and incorporated in 
California. (Shotting Decl. para. 4) Similarly, EOS can make no 
showing that Germany has a materially greater interest than 
California in the interpretation of the License Agreement--indeed, 
in light of the fact that the particular provision at issue protects 
the right of a California corporation to make and sell products in 
California and elsewhere, it is difficult to divine how any other 
jurisdiction could have an interest in this matter as substantial as 
that of California. Accordingly, this Court must enforce the 
parties' choice of California substantive law.
    Finally, it bears noting that even if this Court were to find 
California law applicable to the choice of law question. California 
courts routinely enforce such choice of law provisions under the 
standards set forth in the Restatement. E.g., Nedlloyd Lines B.V. v. 
Seawinds Ltd., 3 Cal. 4th 459, 464-65, 11 Cal. Rptr. 2d 330 (1992) 
(``In determining the enforceability of arm's-length contractual 
choice-of-law provisions, California courts shall apply the 
principles set forth in Restatement section 198, which reflects a 
strong policy favoring enforcement of such provisions.''); Cal. Civ. 
Code Sec. 1646.5 (``the parties to any contract, agreement, or 
undertaking, contingent or otherwise, relating to a transaction 
involving in the aggregate'' at least $250,000, ``may agree that the 
law of this state shall govern their rights and duties in whole or 
in part, whether or not the contract, agreement, or undertaking or 
transaction bears a reasonable relation to this state.'').

B. EOS May Not Assert Any Claims for Infringement Under the 
Licensed 3D Patents Against 3D

    The 3D-EOS License Agreement provides as follows:

``LICENSEE expressly agrees not to assert against LICENSOR any 
claims for infringement based on the manufacture, use, sale or offer 
for sale of any apparatus made or sold by LICENSOR under the 
Licensed Patents, at any time, for any reason, during the term of 
this License Agreement.''

(SUF No. 2; Ex. 1, para. 2.1(a), at p. 31) The licensee is EOS; the 
licensor is 3D. The language could not possibly be more clear: EOS 
may not sue 3D for infringement based on the manufacture, use, sale 
or offer for sale of any apparatus--including laser sintering 
systems--under the licensed 3D patents.
    This Court has already examined paragraph 2.1 of the License 
Agreement and ruled that it means exactly what it says: ``3D itself 
may still make products using the licensed patents.'' (Ex. 2, at p. 
40) In January, DTM filed a motion to dismiss EOS' complaint on the 
ground, inter alia, that EOS lacked standing to sue under the 
licensed 3D patents without joining 3D as a plaintiff because the 
1997 3D-EOS License Agreement did not grant to EOS ``all substantial 
rights'' in the patents. EOS opposed the motion, arguing that it did 
in fact obtain all substantial rights in the patents. On March 16, 
this Court granted DTM's motion in part, ruling that EOS lacked 
standing to sue without joining 3D because its rights in the patents 
were insubstantial. The Court, as an initial matter, noted that the 
limitations of paragraph 2.1(a) ``prohibit EOS from asserting claims 
in infringement against 3D and its vendees or customers during the 
term of the Agreement.'' (Ex. 2, at 39) The Court reviewed EOS' 
arguments, and then held as follows:

``However, the Court agrees with Defendants that other provisions of 
the Agreement render the rights obtained by EOS insubstantial. 
First, 3D itself may still make products using the licensed patents. 
Agreement Sec. 2.1(a). This right is a significant one when 
considering whether substantial rights have been transferred.''

(Ex. 2, at 40) Thus, this Court has already visited the issue of 
whether EOS may assert the licensed 3D patents against 3D based on 
3D's manufacture and sale of the accused laser sintering systems, 
and has held that it may not. The Court's determination that 
paragraph 2.1(a) prohibits EOS from asserting claims of infringement 
against 3D, and that 3D itself may make and sell products using the 
licensed patents, is entitled to finality as law of the case because 
EOS can show no grounds on which to reopen the issue. Magnesystems, 
Inc. v. Nikken, Inc., 933 F. Supp. 944, 948-49 (C.D. Cal. 1996).
    Moreover, even if this Court had not already resolved this issue 
in its March 16 Order, application of California contract law would 
lead ineluctably to the same result. A patent license is a contract 
governed by

[[Page 11141]]

ordinary principles of state contract law. McCoy v. Mitsuboshi 
Cutlery, Inc., 67 F.3d 917, 920 (Fed. Cir. 1995). California law 
provides that ``[t]he language of a contract is to govern its 
interpretation, if the language is clear and explicit, and does not 
involve an absurdity.'' Cal. Civ. Code Sec. 1638. In addition, 
``[w]hen a contract is reduced to writing, the intention of the 
parties is to be ascertained from the writing alone, if possible; . 
. . .'' Cal. Civ. Code Sec. 1639. Thus, a party's ``subjective 
intent or understanding cannot be used to establish an intent 
independent from the express written terms of the agreement.'' 
Sunniland Fruit, Inc. v. Verni, 233 Cal. App. 3d 892, 898, 284 Cal. 
Rptr. 824 (1991).
    It is well established that the interpretation of an unambiguous 
contract is solely a question of law, unless the interpretation 
turns on the credibility of extrinsic evidence. Brobeck, Phleger & 
Harrison v. Telex Corp., 602 F.2d 866, 871-72 (9th Cir. 1979) 
(applying California law; citation omitted); Parsons v. Bristol 
Development Co., 62 Cal. 2d 861, 865 (1965). Extrinsic evidence is 
not admissible to vary the terms of the contract, but only to prove 
a meaning to which the language of the contract is ``reasonably 
susceptible.'' Brobeck, 602 F.2d at 871-72; Sunniland Fruit, 233 
Cal. App. 3d at 898. If the court finds that the language of the 
contract is unambiguous and not reasonably susceptible to the 
meaning suggested by the extrinsic evidence, then the case is 
particularly amenable to disposal on summary judgment because 
interpretation of the unambiguous contract is solely a question of 
law. Brobeck, 602 F.2d at 871-72; Government Systems Advisors, Inc. 
v. United States, 847 F.2d 811, 812 n.1 (Fed. Cir. 1988) (noting 
that under Federal Circuit law ``[c]ontract interpretation is a 
matter of law and thus amenable to decision on summary judgment.'').
    Thus, California courts enforce unambiguous contracts containing 
exculpatory provisions similar to that contained in the 3D-EOS 
License Agreement according to their terms. For example, in 
Appalachian Ins. Co. v. McDonnell Douglas Corp., 214 Cal. App. 1, 
262 Cal. Rptr. 716 (1989), Western Union entered into a contract 
with McDonnell Douglas pursuant to which McDonnell was to 
manufacture an upper stage rocket for a Western Union communications 
satellite. The contract contained a provision stating that ``under 
no circumstances will [McDonnell] be liable to Purchaser under or in 
connection with this Agreement, for any tort, negligence, strict 
liability, contract or other legal or equitable theory, . . . .'' 
Id. at 12. In addition, the parties agreed to extend their inter-
party waiver of liability ``to their respective contractors and 
subcontractors . . .''
    Id. at 14. After the rocket failed, five insurance companies 
that paid a portion of the resulting claim filed suit against 
McDonnell and two of the subcontractors. The trial court granted 
summary adjudication in favor of the defendants, based on 
exculpatory clauses in the contract between the insured and 
McDonnell, and the court of appeals affirmed. Noting that ``[t]he 
language of the instrument must govern its interpretation if it is 
clear and explicit,'' the court rejected the plaintiffs' argument 
that the exculpatory provision regarding the subcontractors should 
be construed to reflect the intent set forth in the contrary 
provision of a related agreement:

``To ignore the differences in the language used in the two 
agreements would violate a fundamental rule of contract 
interpretation, that is, the words of a contract, if clear, must 
govern its interpretation. The words of the McDonnell Douglas/
Western Union contract are clear; they unambiguously preclude a suit 
by Western Union against McDonnell Douglas' respective contractors 
and subcontractors, i.e., against Morton Thiokol and Hitco.''

Id. at 18. Similarly, here, EOS has unambiguously agreed not to sue 
3D under the licensed patents based on 3D's manufacturing and sales 
activities at any time, for any reason. Under California law, the 
Court must enforce the contract. Accordingly, EOS cannot assert its 
patent infringement claims against 3D based upon 3D's manufacture 
and sale of the accused laser sintering systems.

C. Because EOS May Not Sue 3D Under the Licensed 3D Patents, EOS 
Cannot Obtain Damages Under Those Patents for any Manufacturing or 
Sales of the Accused Laser Sintering Systems That Occurred After 
August 31, 2001, the Date That DTM was Merged Into 3D

    The undisputed evidence shows that on August 31, 2001, 3D filed 
with the California Secretary of State an Agreement of Merger 
between 3D and DTM. (SUF No. 7; Ex. 3) 3D also filed a Certificate 
of Approval of Agreement of Merger executed by the CEO and President 
and Secretary of 3D, and a Certificate of Approval of Agreement of 
Merger executed by the CEO and President and Secretary of DTM. (SUF. 
No. 7; Ex. 3) Pursuant to these filings, DTM was merged into 3D as 
of August 31, 2001, with 3D as the surviving entity. (SUF No. 8) The 
legal effect of these filings was that DTM's corporate existence was 
extinguished as of August 31, 2001.\2\ Cal. Corp. Code Secs. 1103, 
1107(a); Asher v. Pacific Power and Light Co., 249 F. Supp. 671, 677 
(N.D. Cal. 1965). In recognition of these facts, this Court ruled on 
October 17 that ``[o]n August 31, 2001, 3D merged DTM into 3D. DTM 
now no longer exists.'' (Ex. 4, at p. 52) Thus, the Court need not 
revisit this issue, because its prior ruling is entitled to finality 
as law of the case. Magnesystems, 933 F. Supp. at 948-49.
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    \2\ California law governs the effect of the merger, because the 
surviving entity-3D-is a California corporation. Cal. Corp. Code 
Sec. 1108(b). (Shotting Decl. para. 4)
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    As a result of the merger, 3D succeeded to the assets of DTM, 
including its laser sintering manufacturing and sales operations. 
Cal. Corp. Code Sec. 1107(a). EOS cannot possibly fabricate a 
genuine issue as to the fact that it is now 3D, not DTM, that is 
making and selling the accused laser sintering systems, because the 
merger extinguished the existence of DTM as a matter of law. Cal. 
Corp. Code para. 1107(a). Accordingly, EOS is not entitled to obtain 
any damages or other relief based on the conduct of 3D in 
manufacturing and selling the accused laser sintering systems after 
August 31, 2001, because EOS agreed in paragraph 2.1(a) of the 
License Agreement not to assert any of the licensed patents against 
3D ``based on the manufacture, use, sale or offer for sale of any 
apparatus made or sold by [3D] under the Licensed Patents, at any 
time, for any reason.'' (Ex. 1, para. 2.1(a), at p. 31)

V. Conclusion

    For the reasons set forth above, the Court should grant 3D's 
motion for summary adjudication that EOS may recover no damages or 
other relief as against 3D or nominal defendant DTM under the 
licensed 3D patents based upon the manufacture, use, sale or offer 
for sale of any of the accused laser sintering systems that occurs 
after August 31, 2001.

    Dated: November 12, 2001.

Thomas, Walton & Graves LLB.


Philip J. Graves,
Attorneys for Defendants 3D Systems, Inc., DTM Corporation, and 
Compression, a division of Moll Industries, Inc.
[FR Doc. 02-4699 Filed 3-11-02; 8:45 am]
BILLING CODE 4410-11-M