SCVNGR, Inc. v. DailyGobble, Inc.

Filing 200

ORDER ADOPTING REPORT AND RECOMMENDATIONS and DENYING 139 Plaintiff's Renewed Motion for Order to Show Cause Why Defendant DailyGobble, Inc. d/b/a Relevant Should Not be Sanctioned for Contempt. Signed by District Judge Rodney Gilstrap on 12/12/2018. (rlf)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

SCVNGR, INC. d/b/a LEVELUP

§
§
§
§
§
§
§
§
§
§

v.

DAILYGOBBLE, INC. d/b/a
RELEVANT

CIVIL ACTION NO. 6:15cv493

ORDER ADOPTING REPORT AND
RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE

Before the Court is the Report and Recommendation of the Magistrate Judge, which
contains her findings, conclusions, and recommendation for the disposition of Plaintiff’s Renewed
Motion for Order to Show Cause Why Defendant DailyGobble, Inc. d/b/a Relevant Should Not be
Sanctioned for Contempt (ECF 139). The Report and Recommendation (ECF 195) recommends
that the motion be denied. Plaintiff filed written objections (ECF 196) and Defendant filed a
response (ECF 198).
Plaintiff raises three objections. First, Plaintiff objects to the Court’s construction of Claim
1 of U.S. Patent No. 8,639,619 (“the ‘619 patent”). Previously, an Amended Memorandum
Opinion and Order (ECF 191) was filed resolving the parties’ claim construction disputes. Plaintiff
filed an objection to the claim construction opinion (ECF 192). Thereafter, the undersigned
considered Plaintiff’s objection and adopted the Amended Memorandum Opinion and Order (see

1

Order, ECF 194). Plaintiff’s objection to the Court’s claim construction has been considered and
rejected. Accordingly, the first objection lacks merit.
Next, Plaintiff objects that the Report and Recommendation does not include a separate
infringement analysis for Claim 8. In the motion before the Court, however, Plaintiff did not brief
infringement of Claim 8 by Defendant’s LPQ-2 system. It is not appropriate to submit new
evidence or to raise new arguments for the first time in written objections to a Report and
Recommendation for review by the district judge absent compelling reasons. Freeman v. County
of Bexar, 142 F.3d 848, 850 (5th Cir. 1998). Plaintiff’s second objection does not warrant rejecting
the Report and Recommendation.
Finally, in the third objection, Plaintiff complains that the Report and Recommendation
erroneously finds that Defendant’s LPQ-2 system does not perform step (d) of Claim 1. Plaintiff’s
objection, however, mischaracterizes the Court’s finding. The Court’s claim construction opinion
concluded that Claim 1 requires step (d) to be performed before steps (e), (g) and (h). 1 This
ordering of steps requires, for example, “receiving” a token in step (d) before the token is
associated with the user in step (e). 2 Defendant submitted evidence showing that its LPQ-2 system
reverses its process from its prior infringing system—LPQ-1—such that it now generates a unique
ID for a user, instead of the payment processing entity, and does not follow the ordering of steps
performed in Claim 1. Plaintiff did not meet its burden of proving by clear and convincing
evidence that Defendant’s redesigned product is not more than colorably different than the
infringing product.
Having made a de novo review of the objections filed by Plaintiff, the Court finds that the
findings, conclusions and recommendation of the Magistrate Judge are correct and Plaintiff’s

1
2

See Amended Memorandum Opinion and Order, ECF 191, at *20–21; adopted in Order, ECF 194.
Id. at *19.
2

objection is without merit. The Court therefore ADOPTS the findings and conclusions of the
Magistrate Judge as those of the Court.
In light of the foregoing, it is
ORDERED that Plaintiff’s Renewed Motion for Order to Show Cause Why Defendant
DailyGobble, Inc. d/b/a Relevant Should Not be Sanctioned for Contempt (ECF 139) is DENIED.

So Ordered this
Dec 12, 2018

3