United States District Court, E.D. North Carolina, Western Division
Malcolm J. Howard Senior United States District Judge
consolidated action is before the court for construction of
certain claims involved in U.S. Patent No. 6, 537, 574
("'574 Patent"). This matter was referred to
United States Magistrate Judge Kimberly A. Swank for entry of
a memorandum and recommendation ("M&R")
pursuant to 28 U.S.C. § 636(b)(1)(B). A hearing was held
and the parties submitted additional briefing following the
hearing. Judge Swank filed an M&R, recommending that an
order be entered constructing, for purposes of claims 1 and
25 of the '574 patent, the disputed claim terms as
• "Rounded"-lacking jagged, sharp, or angular
• "Substantially spherical"-most of the
particles are sphere-like or spheroidal
• "Substantially non-resorbable"-although some
dissolution of the augmentation material may take place over
time, it is sufficiently slow so as to allow for replacement
with growing tissue cells.
objected to the M&R [DE #254} and Merz responded to the
objections. [DE #255]. The court allowed Cytophil's
request to file a reply brief, which Cytophil did [DE #263].
Merz has also filed a Notice of Suggestion of Subsequently
Controlling Decided Authority. [DE #275]. These issues are
ripe for adj udication.
Rule 72(b) of the Federal Rules of Civil Procedure, a
district judge "must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to." Fed.R.Civ.P. 72(b) (3) .
objects to the construction of each term as follows:
objects to the M&R's construction of the term rounded
to the extent it suggests that not all of the particles must
be rounded. [DE #254 at 10] . Further, Cytophil asserts that
"the M&R errs by failing to exclude other shape
characteristics which the intrinsic record shows to be
contrary to the meaning of 'rounded'." [DE #254
at 12]. The court has carefully reviewed the construction of
rounded and finds Cytophil's objection to be without
merit. The construction in the M&R is well-reasoned and
the court hereby adopts it.
objects to the M&R's proposed construction of the
claim term "substantially spherical" arguing it
confuses terms used definitionally in the patent, is
indefinite, and because it excluded the D-ratio disclosed
definitionally by the applicant in the prosecution history as
a method of measurement usable to objectively discern the
distinction between particles sufficiently and insufficiently
spheroidal for use in the claimed method.
court agrees with Merz that this objection is vague. The
court finds there is no issue of indefiniteness, but rather
that substantially is a term of degree. Finally,
Cytophil's argument regarding ...