ASML and Carl Zeiss SMT v. Nikon – immersion lithography

ASML Netherlands BV is the world’s largest manufacturer of lithography machines used in the production of computer chips. ASML’s high-tech lithography machines produce computer chips with nanometer precision (a nanometer is approximately 100,000 times thinner than a strand of human hair).

ASML’s lithography machines, especially its most advanced ones used to make the smallest chips, are very large and have thousands of complex components. ASML’s principal supplier is the German company Carl Zeiss SMT GmbH. Zeiss produces the optical systems used in ASML’s machines, in particular the highly complex and expensive projection lens.

Nikon Corporation is a Japanese conglomerate known primarily for the production and sale of cameras. The company has also produced lithography machines for many years. Like ASML (and Zeiss), Nikon has an extensive patent portfolio covering processes and products in the fields of lithography, optical technology, semiconductors and lenses. Many of these patents relate to immersion lithography, a process by which a very thin (running) layer of water is placed under the projection lens in order to enhance the resolution and depth of focus so that smaller and sharper transistor structures can be affixed to the chip.

After fierce patent litigation between ASML/Zeiss and Nikon in the US, Japan and Korea, the parties settled their differences in 2004, granting cross-licenses and agreeing on non-attack obligations. However, expiry of the licenses and non-attack obligations gave rise to new litigation, starting in 2017, on the home turf of ASML and Zeiss. In the Netherlands and Germany alone, where HOYNG ROKH MONEGIER assisted ASML and Zeiss (in addition to coordinating litigation in other countries), more than 30 patent suits were initiated.

In early 2019, these lawsuits were settled. The settlement appears to have been largely driven by ASML and Zeiss’s success before the courts: successive victories in the first batch of cases brought against ASML and the avoidance of critical injunctions in Germany and the Netherlands, as well as anticipated ITC exclusion orders relating to the import into the US of certain high-end Nikon cameras.