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Defenshield, Inc. v. First Choice Armor & Equip., Inc.

United States District Court, Second Circuit

September 20, 2013

DEFENSHIELD, INC., Plaintiff,
v.
FIRST CHOICE ARMOR & EQUIP., INC.; and D-BACK ACQUISITION CO., Defendants.

GEORGE McGUIRE, ESQ., DAVID NOCILLY, ESQ., CLIFFORD TSAN, ESQ., BOND, SCHOENECK & KING, PLLC, Syracuse, New York, Counsel for Plaintiff.

BARRY SCHINDLER, ESQ., STEPHEN M. BUHR, ESQ., WILLIAM STROEVER, ESQ., GREENBERG & TRAURIG, LLP, Counsel for Defendants.

DECISION and ORDER

GKENN T. SUDDABY, District Judge.

Currently before the Court, in this patent infringement action filed by Defenshield, Inc. ("Plaintiff") against the two above-named companies ("Defendants"), are the following: (1) the parties' Opening and Responsive Markman Briefs; (2) United States Magistrate Judge David E. Peebles' Report-Recommendation regarding the parties' proposed constructions of the sole disputed claim term; (3) Defendants' Objection to the Report-Recommendation; and (4) Plaintiff's response to Defendants' Objection. (Dkt. Nos. 36-41, 43.) For the following reasons, the Report-Recommendation is accepted and adopted in its entirety: Defendants' structural argument is rejected, and the disputed claim term is construed more closely in alignment with Plaintiff's proposed construction than Defendants' proposed construction.

I. RELEVANT BACKGROUND

A. Relevant Procedural History

Generally, Plaintiff's Second Amended Complaint (the operative pleading in this action) claims that Defendants infringed on United States Patent No. 7, 849, 781 (the "781 Patent") regarding its Mobile Defensive Fighting Position ("MDFP")-essentially a moveable bulletresistant barrier-by "making, selling, offer to sell, using and/or importing a... barrier referred to as the Rolling Bunker'... for use by various governmental and private entities." (Dkt. No. 33 at ΒΆΒΆ 6-17 [Plf.'s Second Am. Compl.])

On December 3, 2012, the parties filed Opening Markman Briefs in support of their proposed constructions of the sole disputed claim term found in the 781 Patent-the term "channel." (Dkt. Nos. 36, 37.) Generally, in those briefs, Plaintiff construed the term "channel" as meaning "an open passageway, " while Defendants construed the term "channel" as meaning a "structure having a bottom and two raised side edges in cross section." ( Id. )

Subsequently, this matter was referred to Magistrate Judge Peebles for a Claim Construction Hearing and Report-Recommendation. ( See Text Minute Entry dated Feb. 22, 2013.) On January 2 and 3, 2013, the parties filed their Responsive Markman Briefs. (Dkt. Nos. 38, 39.) On February 22, 2013, Magistrate Judge Peebles conducted the Claim Construction Hearing. ( See Text Minute Entry dated Feb. 22, 2013; Dkt. No. 42 [Hr'g Tr.].) On March 8, 2013, he issued his Report-Recommendation. (Dkt. No. 40.)

Familiarity with a more-detailed recitation of the action's relevant procedural history is assumed in this Decision and Order, which is intended primarily for the review of the parties.

B. Magistrate Judge Peebles' Report-Recommendation

Generally, in his Report-Recommendation, Magistrate Judge Peebles recommended that the term "channel" in the 781 Patent be construed as meaning "an open passageway or groove that is formed by a structure that defines the boundaries of the passageway or groove." (Dkt. No. 40, at 19.) In rendering this recommendation, Magistrate Judge Peebles found as follows, in pertinent part: (1) although the term "channel" appears to be one that a jury is capable of ordinarily understanding and applying, the Court is nonetheless obligated to construe the term because the parties have presented a genuine dispute over its meaning; (2) based on a review of the patent prosecution history, the patentee clearly did not intend that the term "channel" refer to or include any portion of a structure, but instead intended that the term refer to the space, or groove, created by the structure; and (3) because neither of the parties' proposed definitions precisely articulates the meaning of the term "channel" as it is used in the 781 Patent, it is necessary to propose a new definition of that term (i.e., the definition articulated at the beginning of this paragraph). ( Id. at Part II.) Familiarity with the particular grounds of the Report-Recommendation is assumed in this Decision and Order, which (again) is intended primarily for the review of the parties.

C. Defendants' Objection to the Report-Recommendation

Generally, in their Objection to the Report-Recommendation, Defendants argue that Magistrate Judge Peebles' Report-Recommendation is improper because the he has sua sponte attempted to correct what he perceives to be an error in the patent without satisfying two conditions, in violation of the Federal Circuit's decision in Novo Indus., L.P. v. Micro Molds Corp., 350 F.3d 1348, 1354 (Fed. Cir. 2003). (Dkt. No. 41.)[1] More specifically, Defendants argue as follows: (1) Magistrate Judge Peebles' attempt to correct the 781 Patent by distinguishing between two interchangeable terms-"channel" and "channel member"-fails under the first prong of the Novo Industries test, because the correction is subject to reasonable debate (based on consideration of the claim language and the specification); and (2) Magistrate Judge Peebles' attempt to correct the 781 Patent by distinguishing between two those terms also fails under the ...


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