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Brain Synergy Institute LLC v. UltraThera Technologies, Inc.

United States District Court, D. Colorado

January 11, 2016

BRAIN SYNERGY INSTITUTE, LLC, d/b/a CARRICK BRAIN CENTERS, Plaintiff,
v.
ULTRATHERA TECHNOLOGIES, INC., and KEVIN MAHER, Defendants.

ORDER ADOPTING AND AFFIRMING DECEMBER 5, 2014 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE

This case was referred to United States Magistrate Judge Boyd N. Boland pursuant to 28 U.S.C. § 636 and Fed.R.Civ.P. 72. (Doc. # 5.) On December 5, 2014, Judge Boland issued a Recommendation construing fifteen patent claim terms at the center of this dispute. (Doc. # 69.) The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). On December 19, 2014, Defendants UltraThera Technologies, Inc. and Kevin Maher (hereinafter “UltraThera”) filed timely objections. (Doc. # 73.) Plaintiff Brain Synergy Institute, LLC (hereinafter “BSI”) filed a response to the objections on January 5, 2015. (Doc. 74.)

I. BACKGROUND

This case arises out of a patent dispute between BSI and UltraThera. In accordance with the order of this Court (Doc. # 52) and Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 (1996), Magistrate Judge Boland held a hearing to construe patent claim terms relevant to the disposition of this litigation. (Doc. # 63.) After careful consideration of the parties’ claim construction briefs and the evidence presented during the Markman hearing, Magistrate Judge Boland issued his Recommendation construing fifteen terms of the disputed patent. (Doc. # 69.) UltraThera lodged two objections, specifically to the recommended constructions of Terms 3 and 10 (Doc. # 73.) The original claim terms and the corresponding constructions recommended by Magistrate Judge Boland are reproduced below:

Term

Original Claim Language (emphasis added)

Recommended Construction (emphasis added)

Term 3

information that effectively describes the de facto pattern and current condition of the chosen subject’s spatial orientation

Information that effectively describes a subject’s pattern of dynamic movement in any direction or plane of motion and/or current static disposition in three-dimensional space

Term 10

information that effectively describes the then de facto pattern and current state of the chosen subject’s spatial orientation

Information that effectively describes a subject’s pattern of dynamic movement in any direction or plane of motion and/or current static disposition in three-dimensional space

UltraThera’s two objections have the same substantive basis: Magistrate Judge Boland “improperly substituted the conjunctive phrase ‘and’ with the disjunctive phrase ‘and/or, ’” enlarging the scope of the terms beyond their original meanings. (Doc. #73 at 4-5.) For the reasons discussed below, this Court agrees with the Recommendation, and overrules UltraThera’s objections.

II. APPLICABLE AUTHORITY

When a magistrate judge issues a recommendation on a dispositive matter, Fed.R.Civ.P. 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge’s [recommended] disposition that has been properly objected to.” In conducting its review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Id. This standard is consistent with that which is applied in the review of claim constructions made pursuant to Markman. PC Connector Solutions LLC v. Smartdisk Corp., 406 F.3d 1359, 1362 (Fed. Cir. 2005) (“Claim construction is a question of law that we review without deference.” (citing Cybor Corp. v. FAS Tech, Inc., 138 F.3d 1448, 1454 (Fed. Cir. 1998))).

Claim construction is the first step in the two-part analysis to determine patent infringement. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1581-82 (5th Cir. 1996). Patent claims that are asserted to be infringed are first construed in order to determine their true meaning and scope. Markman, 52 F.3d at 976. Then, the properly construed claims are compared against the device accused of infringing. Id.

Claim construction is simply a way of elaborating the normally terse claim language in order to understand and explain, but not to change, the scope of the claims. Embrex, Inc. v. Serv. Eng'g Corp., 216 F.3d 1343, 1347 (Fed. Cir. 2000). The analysis begins with the language of the claim itself. Vitronics, 90 F.3d at 1582. Absent an express intent to impart a novel meaning, terms in a claim are to be given their ordinary and accustomed meaning. Mars, Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1373 (Fed. Cir. 2004); Vitronics, 90 F.3d at 1582. However, a patentee may choose to be his own lexicographer and use terms in a manner other than their ordinary meaning, as long as the special definition of the term is clearly stated in the patent specification or file history. Vitronics, 90 F.3d at 1582.

Thus, it is always necessary to review the specification to determine whether the inventor has used any terms in a manner inconsistent with their ordinary meaning. Id. Furthermore, the words of the claim must be construed in light of the specification, which contains a written description of the invention that must be clear and complete enough to enable those of ordinary skill in the art to make and use it. Id. The specification is always highly relevant and the single best guide to the meaning of a disputed term. Id.

III. ANALYSIS

UltraThera objects to Magistrate Judge Boland’s substitution of “and/or” for “and” in the claim language reproduced supra. (Doc. # 73 at 4-5.) UltraThera reasons that the substitution impermissibly broadens the scope of the claim language by changing a specification requiring both elements (“and”) into something merely requiring either element (“and/or”). A careful review of the claim language and patent specification demonstrates that the argument is without merit.

Though the analysis of patent language begins with the claim itself, a patentee can be his own lexicographer, assigning special meaning to terms as long as the definition is clearly stated in the patent specification or file history. Vitronics, 90 F.3d at 1582. In the instant case, the patentee acted as his own lexicographer with ...


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