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Web v. Google

August 1, 2011

WEB TRACKING SOLUTIONS, LLC, AND DANIEL WEXLER, PLAINTIFFS COUNTERCLAIM DEFENDANTS,
v.
GOOGLE, INC., DEFENDANT COUNTERCLAIM PLAINTIFF.



The opinion of the court was delivered by: Mauskopf, United States District Judge.

MEMORANDUM & ORDER

Plaintiffs Web Tracking Solutions, LCC and Daniel Wexler (together, "Plaintiffs") object to Magistrate Judge Ramon E. Reyes Jr.'s Report and Recommendation (Doc. No. 69) ("R&R"), which recommends that this Court adopt certain proposed constructions of disputed claim terms. Having reviewed the R&R and Plaintiffs' objections (Doc. No. 71), the Court overrules those objections, and adopts the R&R to the extent it is consistent with this opinion.

BACKGROUND

The Court assumes the parties' familiarity with the case and with the R&R. The facts and procedural history set forth in the R&R are incorporated herein unless otherwise noted. On July 28, 2009, the parties jointly submitted a request for the construction of patent terms at issue in this case. (Doc. No. 38.) By Order entered August 7, 2009, this Court referred the matter to Judge Reyes for a report and recommendation. On March 17, 2010, Plaintiffs and Defendant filed their claim construction briefs. (Doc. Nos. 49--52.) On April 19, 2010, the parties submitted responses to those briefs. (Doc. Nos. 56--57.) The parties submitted technology tutorials on April 26, 2010. (Doc. Nos. 59--60.) On April 29, 2010, Judge Reyes held a day-long Markman hearing. (Transcript of Proceedings ("Tr.") (Doc. No. 63).) On July 27, 2010, Judge Reyes issued the R&R. (Doc. No. 69.) Plaintiffs submitted objections to the R&R on August 31, 2010. (Doc. No. 71.) On September 30, 2010, Defendant submitted its opposition to Plaintiffs' objections to the R&R. (Doc. No. 72.)

STANDARD OF REVIEW

A district court may refer certain matters to a magistrate judge for a report and recommendation. See 28 U.S.C. § 636(b)(1). The district court may then adopt those portions of a magistrate judge's report and recommendation to which no objections have been made, provided the recommendations are not clearly erroneous. See Fed. R. Civ. P. 72(b); Deleon v. Strack, 234 F.3d 84, 86--87 (2d Cir. 2000). The district court is not required to review factual findings or legal conclusions to which no party interposes an objection. See Thomas v. Arn, 474 U.S. 140, 150 (1985). The district court, however, must consider de novo any portion of a report and recommendation to which a timely objection has been made. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); see also United States v. Raddatz, 447 U.S. 667, 674--75 (1980).

"Normally, the judge, on application, will consider the record which has been developed before the magistrate and make his own determination on the basis of that record, without being bound to adopt the findings and conclusions of the magistrate." Raddatz, 447 U.S. at 674--75. Regardless of whether proper objections have been filed, the district court may, after review, "accept, reject, or modify, in whole or in part, the findings and recommendations of the magistrate judge." 28 U.S.C. § 646(b)(1); see also Fed. R. Civ. P. 72(b).

DISCUSSION

This Court has thoroughly considered the parties' submissions regarding Plaintiffs' objections, as well as papers filed in connection with the Markman hearing, reviewing de novo those aspects of the R&R to which Plaintiffs have specifically objected. As to all portions of the R&R to which no objections have been made, the Court concludes that the R&R is not clearly erroneous. See Pizarro v. Barlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). For the following reasons, Plaintiffs' objections are overruled, and the R&R is adopted to the extent it is consistent with this opinion.

I. Plaintiffs' Objections

Plaintiffs' objections are limited to the portion of the R&R pertaining to the claim term "fourth Web site" included in Independent Claim 1. (Pls.' Obj. at 1.)*fn1 The R&R recommends that this Court adopt Defendant's proposed construction for "fourth Web site": "a Web site owned and operated independently from the first, second, and third Web sites, and that performs the function of an unbiased third-party accounting and statistical service." (R&R at 2, 10.) Plaintiffs do not object to the recommendation that this Court adopt Defendant's proposed construction. Instead, Plaintiffs contend that Judge Reyes erred by finding that any third-party accounting and statistical services that receive compensation from publishers or advertisers on the basis of the number of "clicks" counted and reported are outside the scope of the claims. (Pls.' Obj. at 2.) Plaintiffs put forth several arguments in support of their objections, each of which is considered below.

a.Dispute Over Claim Scope

Plaintiffs contend that Judge Reyes made "an impermissible factual determination that is properly reserved for the jury" by "determin[ing], as a factual matter, that any third-party accounting service that is paid based on the number of clicks that it reports is necessarily biased and outside the scope of the patent." (Pls.' Obj. at 9--10.) This argument reflects a misunderstanding of the claim construction process. "When the parties present a fundamental dispute regarding the scope of a claim term, it is the court's duty to resolve it," 02 Micro Int'l Ltd. v. Beyond Innovation Tech., Co., 521 F.3d 1351, 1362 (Fed. Cir. 2008), "ensur[ing] that questions of the scope of the patent claims are not left to the jury." Every Penny Counts, Inc. v. Am. Express Co., 563 F.3d 1378, 1383 (Fed. Cir. 2009) (citation omitted). In other words, questions regarding the scope of patent claims are decided "as a matter of law," not fact. Johnson Worldwide Assocs. v. Zebco Corp., 175 F.3d 985, 988 (Fed. Cir. 1999).

In asking the Court to adopt its proposed construction for "fourth Web site," Defendant argued that the prosecution history made clear that the inventor limited the scope of the claims to exclude accounting services whose revenues increase each time they record and report a "click" on an ad from the publisher's website. (See, e.g., Def.'s Resp. Br. on Claim Construction (Doc. No. 57) at 7.) Plaintiffs took the opposite position, urging the court not to adopt a construction "that would preclude the third party entity from having any financial incentive related to its performance of the accounting function." (Pls.' Resp. Br. on Claim Construction (Doc. No. 56) at 3.) This is a clear dispute regarding claim scope, which the R&R was required to, and did, resolve. See, e.g., 02 Micro, 521 F.3d at 1361--62 (vacating jury verdict of ...


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