Sterisil Inc v. Proedge Dental Products Inc et al

Filing 44

ORDER APPOINTING MASTER: Gary B. Chapman, Ph.D., J.D. of the law firm Lathrop & Gage LLP is appointed as a Master in this case. Within 120 days of the date of this order, the Master shall issue and file with the court a written report and recommendation providing a recommended complete construction of each of the disputed claims in the patent in suit. By Judge Robert E. Blackburn on 4/9/2015. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-01210-REB
STERISIL, INC., a Colorado Corporation,
Plaintiff,
v.
PROEDGE DENTAL PRODUCTS, INC, a Colorado Corporation, and
MARK A. FRAMPTON, an individual,
Defendants.

ORDER APPOINTING MASTER
Blackburn, J.
This matter is before the court on the following: (1) the Defendants’ Brief on
Appointment of Special Master [#34] filed April 4, 2014; (2) the Plaintiff’s (1)
Consent to Appointment of Special Master, (2) Proposed Candidate for Special
Master, and (3) Proposed Order Appointing Special Master [#35] filed April 4, 2014;
and (3) the Defendants’ Submission of Curriculum Vitae of Proposed Special
Master [#39] filed October 29, 2014. I appoint Gary B. Chapman as a master in this
case.
The patent in suit concerns technology that is highly specialized and technical.
Given that circumstance, it is likely that a master with education and skill in the technical
areas addressed in the patent in suit will be able to construe the disputed claims in the
patent more accurately and more efficiently than a judge available on this court. Under
FED. R. CIV. P. 53(a)(1), these circumstances are sufficient to merit and permit the

appointment of a master to construe the disputed claims of the patent in suit.
Previously, the court gave notice to the parties of the intent of the court to appoint a
master. FED. R. CIV. P. 53(b)(1). The parties consent to the appointment of a master,
and both parties have nominated a candidate to serve as master.
The defendants nominate Gary B. Chapman, Ph.D., J.D. of the law firm Lathrop
& Gage LLP, in Boulder, Colorado. Given the knowledge, education, and experience of
Dr. Chapman, as stated in his Curriculum Vitae [#39-1] and the fact that Dr. Chapman is
located in the Denver area, I find and conclude that he has the education, experience,
and skill in the technical areas addressed in the patent in suit and he is well-suited to
act as a master to construe the disputed claims in the patent in suit. As required by
Fed. R. Civ. P. 53(b)(3)(A), Mr. Chapman has filed an affidavit indicating that there is no
ground for his disqualification under 28 U.S.C. § 455. Nothing else in the record
indicates that there is any ground for the disqualification of Mr. Chapman.
THEREFORE, IT IS ORDERED as follows:
1. That under Fed. R. Civ. P. 53 (b)(3), Gary B. Chapman, Ph.D., J.D. of the law
firm Lathrop & Gage LLP is appointed as a Master in this case;
2. That the Master shall construe the disputed claims in the patent in suit in this
case based on the briefs filed by the parties and any oral argument or additional
evidence presented by the parties to the Master;
3. That the Master shall have discretion to determine whether the presentation
of oral argument or additional evidence is necessary to inform an accurate construction
of the terms of the patent in suit;
4. That within 120 days of the date of this order, the Master shall issue and file
with the court a written report and recommendation providing a recommended complete
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construction of each of the disputed claims in the patent in suit;
5. That the master shall serve a copy of his report and recommendation on the
parties by filing a copy of the report and recommendation on the CM/ECF system of the
court;
6. That the Master may not communicate ex parte with the parties or their
counsel;
7. That if the Master perceives a need to communicate with the court ex parte,
the Master may file a request to communicate with the court ex parte and, if necessary,
may seek to have such a request filed under restriction, as provided by
D.C.COLO.LCivR 7.2;
8. That if any additional written material is presented to the Master in support of
his claim construction, in addition to written material of record in this case, such
additional written material shall be preserved by the master and shall be filed with the
court as exhibits to the report and recommendation of the Master;
9. That a record of any hearing held by or oral presentation to the Master by the
parties on issues of claim construction shall be kept by a court reporter qualified as a
Certified Realtime Reporter (CRR);
10. That a transcript of any such hearing or oral presentation shall be filed with
the court as an exhibit to the report and recommendation of the master;
11. That the Master shall be compensated at his normal hourly billing rate on an
hourly basis for time spent on this matter;
12. That the Master will be reasonably compensated and reimbursed for
expenses incurred by the Master in carrying out his duties as Master; and
13. That the parties shall share equally the cost of the services of the Master,
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the reasonable expenses incurred by the Master, the cost of any court reporter and
transcript associated with proceedings conducted by the Master.
Dated April 9, 2015, at Denver, Colorado.
BY THE COURT:

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