Asentinel LLC v. AnchorPoint, Inc. et al
Filing
174
ORDER adopting 163 Report and Recommendation and granting 102 Defendant's Motion for Partial Summary Judgment. Signed by Chief Judge Jon Phipps McCalla on 3/29/12. (McCalla, Jon)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
ASENTINEL LLC,
Plaintiff,
v.
CASS INFORMATION SYSTEMS,
INC.,
Defendant.
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No. 2:10-cv-02706-JPM-tmp
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING DEFENDANT’S
MOTION FOR PARTIAL SUMMARY JUDGMENT
Pending before the Court is the Report and Recommendation
of Magistrate Judge Tu M. Pham (“Rep. and Rec.”), submitted
February 17, 2012 (Docket Entry (“D.E.”) 163), on Defendant’s
Motion for Partial Summary Judgment that Certain Claims of the
Asserted Patents are Invalid as Indefinite (D.E. 102),
recommending that the Motion be granted.
Plaintiff filed its
Objection to the Magistrate’s Report and Recommendation of
February 17, 2012, (“Pl.’s Objection”) on March 2, 2012.
168.)
(D.E.
Defendant filed its Response to Plaintiff’s Objection on
March 16, 2012.
(D.E. 173.)
In determining that the Motion should be granted, the
Magistrate Judge reasoned that the specifications of the
patents-at-issue do not sufficiently disclose the algorithms
associated with the “means for importing” and “means for
organizing elements into common categories” claims at issue.
(Rep. and Rec. 28.)
Specifically, the Magistrate Judge found
that (1) there was no algorithm disclosed regarding how the user
application 5 receives invoice data or how the hard-coded
algorithms work, nor was there any disclosure regarding the
algorithmic steps performed by the Invoice Management module 23
(id. at 32); and (2) there was no algorithm for how the software
performs the function of arranging several elements into common
categories (id. at 34).
Consequently, the Magistrate Judge
recommended that, because at least one of these two means-plusfunction limitations is found in each of the four independent
claims-at-issue (and by incorporation all of the dependent
claims), the Court find all of the claims-at-issue in the
patents-in-suit invalid for indefiniteness.
Plaintiff objects and asserts that the claims-at-issue are
not invalid as indefinite on four principal grounds: (1) the
patents’ specifications detail the requisite structure of the
“means for importing” because hardware structures such as a data
communications pathway, keyboard, mouse, and monitor are
specialized components that are adequate defining structures to
render the bounds of the claims understandable to an ordinary
artisan; (2) the patent specification is not merely “purely
functional in nature” but discloses an algorithmic structure
acceptable under Typhoon Touch Techs., Inc. v. Dell, Inc., 659
F.3d 1376 (Fed. Cir. 2011); (3) the patent specifications
2
describe both hardware and software structures for performing
the recited function of the claim “means for organizing”; and
(4) the Magistrate Judge failed to hold Defendant to its burden
of showing invalidity by clean and convincing evidence.
Objection 6-8.)
(Pl.’s
Plaintiff submitted a Rebuttal Declaration of
Leonard J. Forys, Ph.D in Support of Plaintiff Asentinel LLC’s
Objection to the Magistrate’s Report and Recommendation of
February 17, 2012 (“Forys Rebuttal Decl.”). (D.E. 168-1.)
Defendant also submitted a Rebuttal Declaration of its expert,
Charles H. Sauer, Ph.D (“Sauer Rebuttal Decl.”).
(D.E. 173-1.)
The Magistrate Judge previously found Dr. Forys and Dr. Sauer to
be persons of ordinary skill in the art.
(Rep. and Rec. 16.)
Therefore, the rebuttal declarations are accepted.
I.
Background
The Magistrate Judge proposed the following findings of
fact:
Asentinel is a Memphis-based corporation that
develops telecommunication expense management (“TEM”)
technology.
Large
national
and
multinational
corporations
purchase
voice
and
data
telecommunications services on a large scale and at
significant expense, and TEM technology allows those
corporations to detect billing errors and more
effectively manage their telecommunications services.
Asentinel was co-founded by Jason Fisher, who is
listed as the inventor of two patents that involve the
use of TEM technology. Asentinel is the owner of these
two patents.
Specifically, Asentinel was granted
United States Patent No. 7,340,422 on March 4, 2008,
titled “Systems and Methods for Processing and
Managing Telecommunications Invoices” (“‘422 patent”),
3
and was granted United States Patent No. 7,805,342 on
September 28, 2010, titled “Systems and Methods for
Identifying and Processing Telecommunications Billing
Exceptions” (“‘342 patent”)(collectively referred to
as the “patents-in-suit”). In general terms, the
technology in the patents-in-suit involves automated
auditing of telecommunications invoices by receiving
the invoices, extracting data from the invoices,
performing an automatic audit on the extracted data to
check for billing errors, and generating reports for
customers identifying these billing errors.
Asentinel brings this patent infringement action
against Cass, alleging that Cass infringed one or more
of the claims of the patents-in-suit, in violation of
35 U.S.C. § 271(a), (b), and (c). In the instant
motion, Cass moves for partial summary judgment on the
grounds
that
certain
claims
are
invalid
for
indefiniteness pursuant to 35 U.S.C. § 112. These
challenged claims include (1) from the ‘422 patent,
Claim 38, Claims 39-45, 48, 50-52, and 54-55 (which
depend from Claim 38), and Claim 56; and (2) from the
‘342 patent, Claim 10, Claims 11-13, 15, and 17-20
(which depend from Claim 10), Claim 21, and Claims 22
and 24-26 (which depend from Claim 21) (collectively
referred to as the “claims-at-issue”).
. . .
Cass contends (and Asentinel does not dispute)
that all of the claims-at-issue include “means-plusfunction” limitations pursuant to 35 U.S.C. § 112 ¶ 6.
The parties further agree that, for purposes of this
summary judgment motion, the ‘422 and ‘342 patents are
substantially identical, as both contain similar
asserted claims and supporting specification language.
(Forys Aff. ¶ 20.)
. . .
Cass argues that in order for a means-plusfunction
limitation
to
be
valid,
the
patent
specification
must
disclose
a
“structure”
that
constitutes the means by which each particular
function is performed. In this case, Cass contends
that the specifications for the claims-at-issue fail
to disclose structure corresponding to the recited
4
function in the form of a computer algorithm.
Therefore, according to Cass, the court should find
that
the
claims-at-issue
are
invalid
for
indefiniteness. Alternatively, Cass alleges that the
court should grant summary judgment on these claims
because there is no clear link between the recited
functions
in
these
elements
and
any
purported
structure in the specifications.
(Rep. and Rec. 2-3, 9, 10-11.)
Neither party has objected to
these proposed findings of fact.
Therefore, the Magistrate
Judge’s proposed findings of fact are ADOPTED.
II.
Standard of Review
A district judge should conduct a de novo review when a
magistrate judge has entered a report and recommendation as to a
pre-trial motion under 28 U.S.C. § 636(b)(1)(C) and Rule 72(b).
The judge may accept, reject, or modify the recommendations of
the magistrate judge and may receive additional evidence on the
matter.
28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b).
III. Analysis
The parties agree that all of the claims-at-issue include
“means-plus-function” limitations pursuant to 35 U.S.C. § 112 ¶
6.
(Rep. and Rec. 9.)
The means-plus-functions limitations at
issue are “means for causing the computer to import
telecommunications invoices” (and variations thereof) and “means
for organizing the elements into common categories by the
computing device.”
(Id. at 9-10.)
Plaintiff objects to the
Magistrate Judge’s finding of law that the claims-at-issue fail
5
to satisfy the definiteness requirement of 35 U.S.C. § 112 ¶ 2.
A patentee may draft a claim limitation in means-plus-function
format:
An element in a claim for a combination may be
expressed as a means or step for performing a
specified function without the recital of structure,
material, or acts in support thereof, and such claim
shall
be
construed
to
cover
the
corresponding
structure,
material,
or
acts
described
in
the
specification and equivalents thereof.
35 U.S.C. § 112 ¶ 6.
To determine whether a means-plus-function
limitation is definite under patent law, a court applies a twostep analysis: first, a court identifies the particular claimed
function, and, after identifying the particular claimed
function, a court, in the second step of the analysis, looks to
the specification and identifies the corresponding structure,
material, or act that performs the function.
HTC Corp v. IPCom
GmbH & Co., KG, 667 F.3d 1270, 1378 (Fed. Cir. 2012).
The
parties agree that the particular claimed function of “means for
importing” is “to receive (as in data)” and the particular
claimed function of “means for organizing” is “to arrange
several elements into common categories.”
26.)
(Rep. and Rec. 25-
The inquiry under the second step of the analysis is,
first, “whether structure [is] described in [the] specification,
and, if so, whether one skilled in the art would identify the
structure from that description.”
Atmel Corp. v. Info. Storage
Devices, Inc., 198 F.3d 1374, 1381 (Fed. Cir. 1999). “[Paragraph
6
6] represents a quid pro quo by permitting inventors to use a
generic means expression for a claim limitation provided that
the specification indicates what structure(s) constitute(s) the
means.”
Id. (alterations in original).
In order for a claim to
meet the particularity requirement of ¶ 2, the corresponding
structure of a means-plus-function limitation must be disclosed
in a written description in a way that allows one skilled in the
art to understand what structure corresponds to the means
limitation.
Id. at 1382.
“Fulfillment of the § 112, ¶ 6
tradeoff cannot be satisfied when there is a total omission of
structure.”
Id.
For the reasons noted below, the Court ADOPTS the
Magistrate Judge’s finding that the claims-at-issue do not meet
the definiteness requirement of § 112.
A.
Plaintiff’s Hardware Objections and “Means for
Importing”
Plaintiff objects to the Magistrate Judge’s finding that
the hardware components disclosed in the patents-in-suit are
insufficient structure.
(Pl.’s Objection 16.)
Plaintiff first argues that the Magistrate Judge’s finding
that hardware components such as a keyboard, mouse, monitor,
CDROM drive, floppy disk drive, and data communications pathway
amount to nothing more than a general-purpose computer and that
the specification therefore discloses insufficient structure is
7
erroneous.
(Id.)
Plaintiff contends that the Magistrate
Judge’s reliance on the “general purpose computer” line of cases
is incorrect because, while the Federal Circuit has held that a
general purpose computer alone is insufficient structure, the
same is not true for computer components.
(Id. at 16-17.)
Rather, Plaintiff argues that computer components are specialpurpose devices that do not depend on software programming to
control their functions, and that such components provide
sufficient structure provided they “render[s] the bounds of the
claim understandable to an ordinary artisan.”
(Id. at 17
(quoting Telcordia Techs, Inc. v. Cisco Sys., Inc., 612 F.3d
1365, 1377 (Fed. Cir. 2010).)
Plaintiff submits that a skilled
artisan would understand input devices such as a keyboard and a
mouse to be necessary for a user to manually input invoices into
the computer systems described in the patents-in-suit.
Rebuttal Decl. ¶ 23.)
(Forys
Plaintiff further submits that a skilled
artisan would understand that output devices include a monitor
to view results.
(Id.)
Plaintiff contends that these devices
are not “the sole component of the structure, but rather form a
necessary part of the structure.”
(Id. ¶ 22.)
Defendant argues
that these “parts” “cannot perform the function of receiving
telecommunications invoice data without a general purpose
computer running appropriate software.”
¶ 36.)
8
(Sauer Rebuttal Decl.
As the Magistrate Judge noted, “Rather than relying on
[computer hardware], [a patentee] ha[s] to identify an algorithm
that the computer hardware execute[s].”
(citing HTC Corp., 667 F.3d at 1280).)
(Rep. and Rec. 31
As discussed infra, the
patentee here failed to identify an algorithm performed by the
structure of which these components are a “necessary part.”
See
HTC Corp., 667 F.3d at 1278 (discussing appellees’ failure to
preserve in the district court the argument that the
specification failed to disclose an algorithm sufficient to
transform component parts into a special purpose computer
designed to implement the claimed functions).
Finally, Plaintiff argues that the Magistrate Judge was in
error in relying upon the declaration of Dr. Sauer.
Objection 17.)
(Pl.’s
Plaintiff argues that the conclusory testimony
of an expert cannot meet the standard of clear and convincing
evidence, but offers no argument as to why Dr. Sauer’s testimony
was conclusory.
In his declaration, Dr. Sauer did not simply
state that these various components were not capable of
performing their claimed functions; he explained that “[a]
communications pathway does not receive data, rather it simply
transfers data between sender and recipient,” and that
“[n]either a keyboard nor a mouse receives data, rather such
devices are used to transmit keystrokes and cursor positions.”
(Rebuttal Decl. of Charles H. Sauer, Ph.D (D.E. 114-1) ¶¶ 22(1),
9
(2).)
This testimony is supported by expert opinion and is more
than merely conclusory.
Plaintiff’s objections as to this issue
are OVERRULED.
B.
Plaintiff’s “Purely Functional” Objections and “Means
for Importing”
Plaintiff objects to the Magistrate Judge’s finding that a
person of ordinary skill in the art would not recognize the
patent specification as disclosing the required algorithm for
the “means for importing” claims.
(Pl.’s Objection 18.)
Plaintiff argues that all that is required by § 112, ¶ 6 is
“sufficient structure for a person of skill in the field to
provide an operative software program for the specified
function.”
(Id. (citing Typhoon Touch, 659 F.3d at 1385).)
Plaintiff contends that a procedural algorithm may be expressed
in any understandable terms, including prose, and cites Typhoon
Touch for the proposition that the inclusion of the mathematical
algorithm of the programmer in the specification is not
necessary to establish structure so long as the specification
recites in prose the algorithm to be implemented by the
programmer.
(Id. at 18, 20.)
Plaintiff argues that the
Magistrate Judge erroneously cites Blackboard, Inc. v.
Desire2Learn, Inc., 574 F.3d 1371 (Fed. Cir. 2009), in
concluding that the specification does not disclose a sufficient
algorithm for the “means for importing” claims.
10
Plaintiff
argues that in Blackboard, the Federal Circuit held that the
cited text failed to provide the requisite structure for the
claim limitation at issue because it “describe[d] an outcome,
not a means for achieving the outcome,” and contends that in the
instant case, the disclosure of the patents-in-suit does not
describe merely the outcome of importing.
21.)
(Pl.’s Objection 20-
Finally, Plaintiff argues that the Magistrate Judge
incorrectly reasoned that the disclosed algorithm was
insufficient because the law does not require a patentee to
“list[] source code or a highly detailed description of the
algorithm to be used to achieve the claims functions in order to
satisfy 35 U.S.C. § 112 ¶ 6.”
(Id. at 21 (citing Aristocrat
Techs. Australia Pty Ltd. v. Int’l Game Tech., 521 F.3d 1321,
1338 (Fed. Cir. 2008)).)
To the extent that Plaintiff contends that the Magistrate
Judge erroneously required Plaintiff to disclose a mathematical
algorithm in the specification, upon review, the Report and
Recommendation does not require such a showing.
In his review
of the applicable law, the Magistrate Judge cited Typhoon Touch
for the proposition that “[t]he usage ‘algorithm’ in computer
systems has broad meaning, for it encompasses ‘in essence a
series of instructions for the computer to follow,’ whether in
mathematical formula, or a word description of the procedure to
be implemented by a suitably programmed computer.”
11
(Rep. and
Rec. 23.)
It appears to the Court that the Magistrate Judge did
not conclude that the algorithm was insufficient simply because
it was in prose form.
Plaintiff argues that the algorithm for the “means for
importing” limitation is comprised of the following steps:
The second method for receiving invoices is via . . .
EDI. These invoices are sent to the user application
5 via email, FTP, HTTP, a VAN or any other transfer
protocol. These invoices are collected in one common
location that the user application 5 monitors.
Typically, this is a local system file folder on the
server.
The user application 5 will monitor this
directory for files in a real-time or batch mode. In
the real-time mode, the user application 5 will
automatically start the import procedure when a new
file is received.
In the batch mode, the user
application 5 will wait until a specified time to
monitor the common location for any new files . . . .
For EDI files, the user application 5 looks at the
header of the file to determine the vendor.
If the
vendor is unknown the user application 5 will send a
997 response file as specified in the EDI standard.
If the vendor is known the user application 5 will
extract the vendor specific mapping rules from the
user database 3 and begin the importing process. Once
the file is imported the user application 5 verifies
the invoice total.
If the total does not equal the
sum of the charges at the line items, then the invoice
is purged from the database and an error message is
generated.
(Pl.’s Objection 19; ‘422 Patent col.7 ll.25-50.)
Plaintiff’s
expert states that this disclosure would be understood by a
skilled artisan to include the steps of: (1) monitoring a common
location for incoming invoices; (2) user application 5 receiving
incoming invoices; (3) either (a) determining the file type and
invoking the appropriate module for future processing or (b)
12
loading the invoice(s) into a system file folder and
periodically invoking the appropriate module to process the
invoice; and (4) causing the invoice to be entered into the user
database.
(Pl.’s Objection 19.)
The Magistrate Judge found
that the the purported software-based algorithms disclosed by
the specifications and the “steps” described by Dr. Forys did
not amount to an algorithm and were “purely functional in
nature.”
(Rep. and Rec. 32.)
Plaintiff argues that this conclusion is at odds with
Typhoon Touch, in which the Federal Circuit found the following
descriptive text sufficient to disclose an algorithmic
structure:
“Cross-referencing entails the matching of entered
responses with a library of possible responses, and, if a match
is encountered, displaying the fact of the match, otherwise
alerting the user, or displaying information stored in memory
fields associated with that library entry.”
(citing Typhoon Touch, 659 F.3d at 1385).)
(Pl.’s Objection 20
Unlike Typhoon
Touch, however, the specification in the instant case does not
state what the process of importing consists of.
The
specification states that invoices are automatically imported by
user application 5 once they are received.
The specification
further discloses that, before beginning the importing process,
the user application 5 will either send a 997 response file or
extract specific vendor mapping rules from the user database 3,
13
depending on whether the vendor is known or unknown.
Then, and
only then, does the user application 5 “begin the importing
process.”
The specification then states that “[o]nce the file
is imported the user application 5 verifies the invoice total.”
These steps describe what happens prior to and following the
importing process, but, as the Magistrate Judge correctly noted,
the steps do not describe how the software performs the function
of receiving data.
(Rep. and Rec. 32 (citing Blackboard, 574
F.3d at 1383-84).)
The portion of the specification to which
Plaintiff cites, supra, “simply describes the function to be
performed.
It says nothing about how the [user application 5]
ensures that those functions are performed.”
F.3d at 1384.
Blackboard, 574
As such, “the language describes an outcome, not
a means for achieving that outcome.”
(Id. (citing Aristocrat,
521 F.3d at 1334) (internal quotation marks omitted).)
Finally, Plaintiff argues that the Magistrate Judge’s
conclusion that the patents’ algorithmic structure is
insufficient is contradicted by the declaration of Dr. Forys,
and submits that there is no clear and convincing evidence in
the record that shows that a person of ordinary skill in the
field would not understand how to implement this function.
(Pl.’s Objection 22.)
Expert testimony is not required to
construe and determine the invalidity of asserted means-plusfunction claims because the determination of claim
14
indefiniteness is a question of law.
See Exxon Research & Eng’g
Co. v. United States, 265 F.3d 1371, 1376 (Fed. Cir. 2001).
“[T]he testimony of one of ordinary skill in the art cannot
supplant the total absence of structure from the specification.”
Default Proof Credit Card Sys., Inc. v. Home Depot U.S.A., Inc.,
412 F.3d 1291, 1302 (Fed. Cir. 2005).
“Although expert
testimony and declarations are useful to confirm that the
construed meaning is consistent with the denotation ascribed by
those in the field of the art, such extrinsic evidence cannot be
used to vary the plain language of the patent document.”
(Id.
at 1298 (quoting Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d
1314, 1332 (Fed. Cir. 2003)).)
As discussed supra, the
Magistrate Judge correctly determined that the plain language of
the specification lacked sufficient algorithmic structure; the
testimony of Dr. Forys cannot supplant that total absence of
structure.
The Court ADOPTS the Magistrate Judge’s recommended finding
that that a person of ordinary skill in the art would not
recognize the patent specification as disclosing the required
algorithm for the “means for importing” claims.
C.
Plaintiff’s “Means for Organizing” Objections
Plaintiff objects to the Magistrate Judge’s recommendation
that the Court find that the patent specifications do not
15
disclose sufficient structure for the “means for organizing”
claims.
(Pl.’s Objection 22.)
Plaintiff argues that the specification discloses both a
hardware component and an algorithmic process.
(Id. at 23.)
Plaintiff contends that the algorithmic process includes the
steps of:
(1) each mapping module selecting the appropriate
invoice from incoming invoices; (1) (a) if vendor is
known importing rules (if any) (e.g., from user
database 3) into the mapping module, (b) otherwise
applying generic procedures; (3) comparing several
elements; and (4) arranging common elements into
common categories (common categories can include, but
are not limited to, such items as features, taxes and
surcharges) in a table for further processing.
(Id. at 23 n.4.)
The Magistrate Judge found this algorithm
insufficient and purely functional because it does not disclose
“how the software performs the function of arranging several
elements into common categories.”
(Rep. and Rec. 34.)
Plaintiff argues that the Magistrate Judge demands more from the
patents than the law requires.
(Pl.’s Objection 23.)
“While corresponding structure need not include all things
necessary to enable the claimed invention to work, it must
include all structure that actually performs the recited
function.”
Default Proof, 412 F.3d at 1298 (citing Cardiac
Pacemakers, Inc. v. St. Jude Med., Inc., 296 F.3d 1106, 1119
(Fed. Cir. 2002)) (emphasis added).
Similar to the purported
algorithm for the “means for importing” limitation, the above16
referenced steps culled from the specification do not state what
the process of organizing into common categories consists of.
This conclusion is further supported by the plain language of
the specification.
The specification states when invoices are
comparable – when the basic elements of the invoice are placed
in common categories.
(‘422 Patent col.4 ll.15-18.)
The
specification states that vendor specific charges are placed
into common categories based on service rendered.
ll.32-45.)
(Id. col.4
The specification further states that invoice
information is organized into comparable categories after it is
imported.
(Id. col.4 ll.59-62.)
These steps are purely
functional in that they state that information is organized into
common categories.
The specification goes on to state that all
invoices are “stored as distinct records” in the user database
and that “each record has an identifier that indicates the type
of invoice,” but this statement does not explain how invoices
are organized.
(Id. col.5 ll.45-51.)
Finally, the
specification teaches that after a vendor invoice is imported
into the user database 3, the user must review and approve
comparable invoices, which are “broken down into [their] various
types of service.”
(Id. col.6 ll.15-24.)
This “step” describes
the outcome of organizing and states that various types of
services are grouped together.
17
These portions of the specification to which Plaintiff
cites “simply describe[] the function to be performed.
[They]
say[] nothing about how the [software] ensures that those
functions are performed.”
Blackboard, 574 F.3d at 1384.
That
is, the specification discloses no algorithm corresponding to
the “means for organizing” limitation.
Plaintiff’s expert
submits that a skilled artisan would understand how “to provide
an operative software program” based on the written
specification (Pl.’s Objection 23), however, “the testimony of
one of ordinary skill in the art cannot supplant the total
absence of structure from the specification.”
Default Proof,
412 F.3d at 1302.
Plaintiff further argues the Magistrate Judge erred when he
concluded that the disclosed hardware is insufficient because
the recited hardware is merely a general purpose computer
incapable of performing the claimed function.
24.)
(Pl.’s Objection
Plaintiff argues that the corresponding hardware are
computer components, and that a combination of hardware and
software together perform the recited function.
(Id. at 25.)
As discussed supra, “Rather than relying on [computer hardware],
[a patentee] ha[s] to identify an algorithm that the computer
hardware execute[s],” HTC Corp., 667 F.3d at 1280, and the
patentee here failed to identify an algorithm performed by the
18
structure of which these components are a “necessary part,” see
HTC Corp., 667 F.3d at 1278.
The Court therefore ADOPTS the Magistrate Judge’s
recommended finding that the specification discloses no
algorithm corresponding to the “means for organizing elements
into common categories” recited in the asserted claims.
IV.
Claims Invalid as Indefinite
The Magistrate Judge recommended that, because at least one
of the two above-discussed means-plus-function limitations is
contained in each of the four independent claims-at-issue (and
by incorporation all of the dependent claims), all of the
claims-at-issue in the patents-in-suit are invalid for
indefiniteness.
(Rep. and Rec. 28 (citing Blackboard, 574 F.3d
at 1382; Aristocrat, 521 F.3d at 1331).)
Neither party has
filed objections to this recommendation.
The Court therefore
ADOPTS the Magistrate Judge’s recommendation as to this issue.
V.
Conclusion
For the foregoing reasons, the Court ADOPTS the Magistrate
Judge’s Report and Recommendation and GRANTS Defendant’s Motion
for Partial Summary Judgment.1
IT IS SO ORDERED, this 29th day of March, 2012.
s/ JON P. McCALLA
CHIEF U.S. DISTRICT JUDGE
1
As the Magistrate Judge noted, the parties have also filed their claim
construction briefs, and the claims referenced in those briefs remain to be
construed.
19
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