United States District Court, E.D. Michigan, Southern Division
JDS TECHNOLOGIES, INC., a Michigan corporation, Plaintiff.
AVIGILON USA CORPORATION, a Delaware corporation and AVIGILON CORPORATION, a Canadian corporation, Defendants.
MEMORANDUM AND ORDER ADOPTING SUPPLEMENTAL REPORT AND
RECOMMENDATION OF SPECIAL MASTER ON CLAIM CONSTRUCTION (DOC.
COHN UNITED STATES DISTRICT JUDGE.
a patent case. JDS Technologies, Inc. (JDS) is suing Avigilon
USA Corporation and Avigilon Corporation (collectively
“Avigilon”) claiming infringement of two patents:
U.S. Patent Nos. 6, 891, 566 (“the ‘566
patent”) and 8, 185, 964 (“the ‘964
patent”) (collectively, “the JDS
patents”). The patents share an identical
specification and are both entitled “Digital Video
System Using Networked Cameras.” JDS designated six
paradigm claims and originally seventeen (17) words or
phrases were at issue. Due to the complexity of the subject
matter, the Court referred the Markman proceedings
to a Special Master. (Doc. 57). The Special Master rendered a
report and recommendation (Initial R&R). (Doc. 59).
Avigilon objected. See Doc. 60, 61. In part because
Avigilon advanced new claim constructions not considered by
the Special Master in its objections and because in other
instances Avigilon agreed with the Special Master's
construction, the Court referred the matter to the Special
Master for a supplemental report and recommendation. (Doc.
69). The Special Master has rendered a supplemental report
and recommendation (Supp. R&R) on what were twelve (12)
remaining disputed words and phrases (Doc. 73). JDS has not
objected to the Supp. R&R. Avigilon has objected to the
Supp. R&R and JDS has responded. See Docs. 74
and 76. There are now seven (7) disputed words and phrases.
As will be explained, having reviewed the voluminous record,
the Court is satisfied that the Special Master's
recommendations are correct. Accordingly, the Supp. R&R
will be adopted. A chart displaying the disputed words and
phrases, the proposed constructions, and the Special
Master's supplemental construction/Court's
construction is attached as Exhibit
noted in the Supp. R&R, the briefing on claim
construction has been extensive. In addition to the briefs,
the Special Master rendered two report and recommendations,
each over eighty (80) pages. There is no need to list all of
the filings here. Suffice it to say that there has been no
shortage of pages devoted to the issues which have all been
fully, if not repeatedly, fleshed out.
Civ. P. 53 states the appropriate standard of review for a
district court in reviewing findings of fact and conclusions
of law made or recommended by a Special Master. Rule 53(f)(3)
provides as follows:
Reviewing Factual Findings. The court must decide de novo all
objections to findings of fact made or recommended by a
master, unless the parties, with the court's approval,
(A) the findings will be reviewed for clear error; or
(B) the findings of a master appointed under Rule 53(a)(1)(A)
or (C) will be final.
Civ. P. 53(f)(4) provides as follows:
Reviewing Legal Conclusions. The court must decide de novo
all objections to conclusions of law made or recommended by a
See also Hochstein v. Microsoft Corp., 730 F.Supp.2d
714, 717 (E.D. Mich. 2010), aff'd 430 Fed.Appx. 898 (Fed.
Cir. 2011) (“The Court reviews de novo factual findings
and legal conclusions of the Special Master to which a
specific objection has been made. See Fed.R.Civ.P. 53(f)).
The Court may “adopt or affirm, modify, wholly or
partly reject or reverse, or resubmit to the master with
instructions.” Fed.R.Civ.P. 53(f)(1).
Special Master set forth the relevant law on claim
construction which will not be repeated here. Briefly, claim
construction is a matter of law for the Court. Markman v.
Westview Instruments. Inc., 52 F.3d 967, 979 (Fed. Cir.
1995) (en banc), aff'd, 517 U.S. 370 (1996). The focus is
on “what one of ordinary skill in the art at the time
of the invention would have understood the term to
mean.” Id. at 986. The Court of Appeals for
the Federal Circuit has stated: “Claim terms generally
are construed in accordance with the ordinary and customary
meaning they would have to one of ordinary skill in the art
in light of the specification and the prosecution
history.” Aventis Pharma S.A. v. Hospira,
Inc., 675 F.3d 1324, 1329 (Fed. Cir. Apr. 9, 2012)
(citing Phillips v. AWH Corp., 415 F.3d 1303, 1312
(Fed. Cir. 2005) (en banc)).
Court is constrained to make some observations about
Avigilon's objections. First, the objections do not
comply with the local rules for type size. In reviewing
prior briefs, it is not clear whether Avigilon has ever
complied with the type size requirements but Avigilon's
objections to the Supp. R&R in particular are presented
in a noticeably small print. Given that the Court has not
limited the page length for any of the briefing
-Avigilon's objections to the Supp. R&R run 25 pages
for example - it makes little sense to file papers which are
not in compliance with the local rules. Second, the first
eleven pages of Avigilon's objections contain an
“introduction” and “background”
section which is in large measure an invalidity argument
which was raised in a prior motion to dismiss by Exacq, in
which Avigilon did not join, and which the Court denied.
Avigilon also rather boldly suggests that if the Court adopts
two of the Special Master's proposed constructions, the
Court should have a status conference to set a schedule for
Avigilon's forthcomming motion on invalidity. It also
goes so far to request that the Court enter an order to show
cause as to why it should not grant a motion to dismiss based
on invalidity. Avigilon's cacophonic tone does little to
advance their arguments. Putting aside these observations,
the Court will consider Avigilon's objections in turn