Health Grades, Inc. v. MDX Medical, Inc.

Filing 83

ORDER: Denying Without Prejudice 9 Motion for Partial Summary Judgment.Denying as MOOT 38 Motion to Strike in Part Plaintiffs Sur-Reply. By Judge Philip A. Brimmer on 12/7/11.(pabcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-00520-PAB-BNB
HEALTH GRADES, INC.,
Plaintiff,
v.
MDX MEDICAL, INC.,
doing business as Vitals.com,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the motion for partial summary judgment
[Docket No. 9] filed by defendant MDx Medical, Inc. The motion is fully briefed and ripe
for disposition.
Plaintiff is the assignee and owner of U.S. Patent No. 7,752,060 (the “’060
Patent”) and contends that a website owned by defendant infringes the ’060 Patent.
The parties agree that the patent “describes an Internet system for connecting
healthcare providers and patients by providing users with information and ratings of
healthcare providers.” Docket No. 9 at 3, ¶ 1; Docket No. 29 at 1, ¶ 1. In the present
motion, defendant argues that the current version of its website does not infringe
plaintiff’s patent and that summary judgment should enter to that extent. In briefing the
motion, the parties’ positions turn on differing interpretations of specific claim language,
i.e., “report on the first healthcare provider includes comparison ratings of healthcare
providers.” ’060 Patent [Docket No. 9-2] col. 20 ll. 63-65. The parties, however, have

yet to complete briefing their claim construction positions. Moreover, a claim
construction hearing pursuant to Markman v. Westview Instruments, Inc., 517 U.S. 370
(1996), is scheduled for January 19, 2012. See Docket No. 30 (Def.’s Reply Br.) at 4
(“The question . . . whether the meaning of the phrase ‘comparison ratings of
healthcare providers’ is so broad that it is met by the separately-claimed ‘patient ratings’
on the first healthcare provider . . . is entirely a question of law that cannot preclude
summary judgment.”) (citing Markman, 517 U.S. at 388-90); cf. Docket No. 56-1 at 7.
The Court, therefore, concludes that defendant’s motion for partial summary judgment
is premature.
For the foregoing reasons, it is
ORDERED that defendant’s motion for partial summary judgment [Docket No. 9]
is DENIED without prejudice to refiling after the Court construes the disputed claim
language. It is further
ORDERED that defendant’s motion to strike in part plaintiff’s sur-reply [Docket
No. 38] is DENIED as moot.

DATED December 7, 2011.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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