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Merz North America, Inc. v. Cytophil, Inc.

United States District Court, E.D. North Carolina, Western Division

February 6, 2019

MERZ NORTH AMERICA, INC., Plaintiff,
v.
CYTOPHIL, INC. d/b/a REGENSCIENTIFIC, Defendant. CYTOPHIL, INC Plaintiff,
v.
MERZ NORTH AMERICA, INC., Defendant.

          ORDER

          Malcolm J. Howard Senior United States District Judge

         This 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 follows:

• "Rounded"-lacking jagged, sharp, or angular edges
• "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.

         Ctyophil 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.

         Under 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) .

         Cytophil objects to the construction of each term as follows:

         1. Rounded

         Cytophil 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.

         2. Substantially Spherical

         Cytophil 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.

         The 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 ...


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