The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Plaintiff Medtech Products Inc. ("Medtech") brought these consolidated actions against Dentek Oral Care, Inc. ("Dentek") and other defendants, alleging, among other federal and state law causes of action, an infringement of Medtech's U.S. Patent No. 6,830,051 ("the '051 Patent"). Before the Court now is a dispute between Medtech and Dentek over construction of one of the claims in the '051 Patent.
The Court assumes the Parties' familiarity with the pertinent factual and procedural histories as they are set forth in Magistrate Judge Lisa Margaret Smith's thorough Report and Recommendation dated October 11, 2007 ("R&R").*fn1 On July 13, 2007, Medtech and Dentek each filed claim construction statements with Magistrate Judge Smith for a disputed claim ("Claim 17") in the '051 Patent.*fn2 Ultimately, the Parties agreed that five disputed terms in Claim 17 required construction: (1) "Interocclusal Appliance"; (2) "A Resin"; (3) "Molding Over the Base"; (4) "An Impression Preform"; and (5) "Having Approximately 30% by Weight Vinyl Acetate."
Magistrate Judge Smith held a Markman hearing on September 5, 2007. On October 11, 2007, Magistrate Judge Smith issued an R&R, recommending to this Court a proposed construction for each of the five disputed terms. Each Party has filed timely objections.
1. Review of Magistrate Judge's Report and Recommendation
A district court reviewing a magistrate judge's report and recommendation "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also Donahue v. Global Home Loans & Fin., Inc., No. 05-CV-8362, 2007 WL 831816, at *1 (S.D.N.Y. Mar. 15, 2007). Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), parties may submit objections to the magistrate judge's report and recommendation. The objections must be "specific" and "written," Fed. R. Civ. P. 72(b)(2), and must be made "[w]ithin 10 days after being served with a copy of the recommended disposition," id.; see also 28 U.S.C. § 636(b)(1).
Where a party submits timely objections to a report and recommendation, as the Parties did here, the district court reviews de novo the parts of the report and recommendation to which the party objected. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Donahue, 2007 WL 831816, at *1. The district court "may adopt those portions of the . . . report [and recommendation] to which no 'specific written objection' is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law." Eisenberg v. New England Motor Freight, Inc., 564 F. Supp. 2d 224, 226 (S.D.N.Y. 2008) (citing Fed. R. Civ. P. 72(b)(2)).
"Victory in an infringement suit requires a finding that the patent claim covers the alleged infringer's product or process, which in turn necessitates a determination of what the words in the claim mean." Markman v. Westview Instruments, Inc., 517 U.S. 370, 374 (1996) (internal quotation omitted). In Markman, the Supreme Court held that "the construction of a patent, including the terms of art within its claim, is exclusively within the province of the court." Id. at 372. The purpose of claim construction "is neither to limit nor to broaden the claims, but to define, as a matter of law, the invention that has been patented." Netword, LLC v. Centraal Corp., 242 F.3d 1347, 1352 (Fed. Cir. 2001).
The importance of intrinsic evidence in patent construction claims has been well established:
It is well-settled that, in interpreting an asserted claim, the court should look first to the intrinsic evidence of record, i.e., the patent itself, including the claims, the specification and, if in evidence, the prosecution history. Such intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language.
Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996) (internal citation omitted); accord Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) (en banc). "In most situations, an analysis of the intrinsic evidence alone will resolve any ambiguity in a disputed claim term." Vitronics Corp., 90 F.3d at 1583. In fact, where the intrinsic evidence is ...