Opinion
Civil Action 17-cv-00944-WJM-NYW
10-02-2018
XY, LLC, INGURAN, LLC, and BECKMAN COULTER, INC. Plaintiffs, v. TRANS OVA GENETICS, LC, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Nina Y. Wang Magistrate Judge
This matter comes before the court Plaintiffs' Motion to Exclude New Invalidity Arguments Under D.C.COLO.LPtR 16(b)(5) (“Motion to Exclude”) filed by Plaintiffs XY, LLC (“XY”), Beckman Coulter, Inc., and Inguran, LLC d/b/a STGenetics (“ST”) (collectively, “Plaintiffs”) [#170; #171, filed May 21, 2018], which was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated April 19, 2017 [#17], and the memorandum dated May 22, 2018 [#172]. After reviewing the Parties' briefing [#185; #207], the Joint Status Report filed by the Parties after the August 9, 2018 ruling by the presiding judge, the Honorable William J. Martinez [#265], and the applicable law, this court respectfully RECOMMENDS that the Motion to Exclude be GRANTED IN PART and DENIED IN PART.
Though Beckman Coulter originally joined in the Motion to Exclude, the claims associated with the patent to which it is an assignee have been dismissed. Accordingly, at the Final Pretrial Conference in this matter, the undersigned Magistrate Judge and the Parties discussed Beckman Coulter's continued role (if any) in this action. [#325]. Based on that discussion, the court understands that the issues remaining for this Recommendation do not pertain to Beckman Coulter.
This court uses the convention [#] to refer to the docket entry number assigned by the court's Electronic Court Filing (“ECF”) system. In this case, [#170] refers to the publicly available, redacted version of Plaintiffs' Motion to Exclude.
A magistrate judge may not hear and determine certain pretrial matters before the court, including motions for judgment on the pleadings, for summary judgment, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. 28 U.S.C. § 636(b)(1)(A). This provision is interpreted as prohibiting magistrate judges from ruling, rather than recommending disposition of, dispositive motions. Because Plaintiffs seeks to preclude Defendant from pursuing certain defenses in this case, I proceed by Recommendation rather than by Order. See Health Grades, Inc. v. MDX Med., Inc., No. 11-CV-00520-PAB-BNB, 2012 WL 4351601, at *1 (D. Colo. 2012).
BACKGROUND
The background of this action has been discussed in detail in prior orders of the court, see e.g., [#275], and therefore will be discussed only to the extent that it pertains to the pending Motion to Exclude. Plaintiff XY, LLC (“XY”) initiated this action against Defendant Trans Ova Genetics, LC (“Defendant” or “Trans Ova”) on December 6, 2016, in the United States District Court for the Western District of Texas, asserting a variety of causes of action, including infringement of four patents, United States Patent Nos. 9, 145, 590 (“'590 Patent”), 7, 723, 116 (“'116 Patent”), 9, 365, 822 (“'822 Patent”), and 7, 208, 265 (“'265 Patent”); trade secret misappropriation; and unfair competition. [#5]. At that time, XY and Trans Ova were litigating a separate action before this court, XY, LLC v. Trans Ova Genetics, LC, No. 13-cv-0876-WJM-NYW (“XY I”). On December 19, 2016, prior to Trans Ova filing a responsive motion or pleading, XY filed a First Amended Complaint including two additional patents, United States Patent No. 6, 372, 422 (‘'422 Patent”) and 8, 652, 769 (“'769 Patent”). Then, on April 21, 2017, following the transfer of this action to this District, XY filed a Second Amended Complaint adding co-plaintiff Beckman Coulter, Inc., (referred to collectively with XY as “XY”) and an additional patent, United States Patent No. 9, 134, 220 (“'220 Patent”). Trans Ova moved to dismiss based on its court-imposed license theory and that the asserted claims of the ‘116, '265, ‘422, and '769 Patents, as well as the claims for trade secret misappropriation under the Defend Trade Secrets Act, common-law trade secret misappropriation, common-law unfair competition, quantum meruit, and unjust enrichment were barred by claim preclusion. [#31].
XY subsequently filed Third and Fourth Amended Complaints without objection from Trans Ova. [#51, filed July 26, 2017; #74, filed October 18, 2017]. The Third Amended Complaint added another co-plaintiff, Inguran, LLC d/b/a STGenetics (“Inguran”), an exclusive licensee to the ‘116, '265, '590, '822, '422, and '769 Patents (referred to collectively with XY and Beckman Coulter, Inc. as “Plaintiffs”). [#51]. The currently-operative Fourth Amended Complaint replaced the '220 Patent with a reissued patent, United States Patent No. RE46, 559 (“'559 Patent”). The Parties also filed a Joint Status Report informing the court that the Motion to Dismiss directed at the Second Amended Complaint could be determined as if directed at the Fourth Amended Complaint. [#83].
On July 25, 2017, Trans Ova served its Initial Infringement Contentions on Plaintiffs. [#90-1, #170-2]. Around the same time, the Parties stipulated to the infringement of the most claims asserted by the Fourth Amended Complaint, except two claims of the '116 Patent. [#88].On November 17, 2017, Trans Ova filed a Motion to Supplement Invalidity Contentions, raising the following issues:
The Patent Local Rules do not name these first set of Invalidity Contentions, and this court has previously referred to them in this action and others as “Preliminary” Infringement Contentions. The term “Preliminary, ” however, may leave the (mis)impression that these first set of Invalidity Contentions are necessarily incomplete and require amendment. Accordingly, this court now uses “Initial” to refer to this first set of Invalidity Contentions.
On August 31, 2018, Defendant filed an “Opposed Partial Withdrawal and Substitute Stipulation Regarding Infringement, ” seeking to withdraw its stipulation of infringement as to the Asserted Claims of the '590 Patent based on its assertion that “ as of May 7, 2018, all of the PMTs in Trans Ova's commercial sperm-sorters (MoFlo SX instruments) have been operating above 400 volts at all times.” [#292 at 1]. Recently, Plaintiffs filed a Motion to Strike Trans Ova's Opposed Partial Withdrawal and Substitute Stipulation Regarding Infringement [#315, filed September 12, 2018], which is not yet fully briefed and is still pending.
1. Do this Court's Local Patent Rules implicitly require a “good cause” showing any time a defendant wishes to supplement its invalidity contentions before its Final Invalidity Contentions are due?
2. Can a plaintiff preemptively challenge a defendant's ability to supplement its invalidity contentions, or must it wait until after the contentions are supplemented and then file a motion to exclude?
3. Assuming the answers to Questions 1 and 2 are “yes, ” has Trans Ova made a showing of “good cause” sufficient to raise newly-identified indefiniteness arguments in its Opening Claim Construction Brief and, more broadly, to supplement its Initial invalidity contentions with newly-discovered prior art and arguments?[#84]. The court understood (perhaps mistakenly) the Parties' Joint Status Report dated January 26, 2018, [#133], to moot this first Motion to Supplement Invalidity Contentions, and therefore, entered an order to that effect without substantively considering the arguments. [#134]. On January 11, 2018, the presiding judge, the Honorable William J. Martinez, granted in part and denied in part Trans Ova's Motion to Dismiss. Judge Martinez rejected Defendant's theory that the royalty imposed in XY I equated to a perpetual license to practice all of XY's patents, but dismissed the asserted claims of the '116, '265, '422, and '769 Patents with prejudice, leaving the asserted claims of the '590, '822, and '559 Patents at issue. [#120].
Trans Ova then filed a Second Motion to Supplement its Initial Invalidity Contentions [#135, filed February 16, 2018] seeking to supplement its Initial Invalidity Contentions and served Supplemental Invalidity Contentions on Plaintiffs. [#135-1]. By Order dated May 14, 2018, this court permitted the Supplemental Invalidity Contentions, but reserved ruling on whether any proposed amendments between the Initial Invalidity Contentions and Final Invalidity Contentions were supported by good cause. [#168]. The court also extended the time for Plaintiffs to file the Motion to Exclude to May 21, 2018, when they filed this instant Motion. [Id.; #170].
On February 21, 2018, XY and Inguran filed a Motion for Leave to File a Fifth Amended Complaint seeking to add two new patents, United States Patent Nos. 9, 625, 367 (“'367 Patent”) and 9, 835, 541 (“'541 Patent”), as well as adding Inguran as a named Plaintiff on the currently pleaded Count XII, which alleges infringement of the ‘559 Patent. [#137]. Trans Ova objects to the addition of the '367 Patent. The following day, Trans Ova filed a Motion for Judgment on the Pleadings with respect to the ‘559 Patent, arguing that the patent claimed unpatentable subject matter. [#138]. On August 9, 2018, Judge Martinez granted Trans Ova's Motion for Judgment on the Pleadings as to the '559 Patent, and denied the Motion for Leave to File a Fifth Amended Complaint. [#262]. Judge Martinez subsequently summarily denied a Motion for Reconsideration on August 22, 2018. [#276]. Accordingly, the only remaining claims arise from the '590 and the ‘'822 Patents (collectively “Remaining Patents-in-Suit”).
Given Judge Martinez's August 9 ruling, this court directed the Parties to meet and confer and file a Joint Status Report regarding the impact of that ruling upon the motions then-referred to the undersigned Magistrate Judge. [#263]. The Parties filed the Joint Status Report on August 15. [#265]. In that Report, the Parties agreed that at least some portions of Plaintiffs' Motion to Exclude New Invalidity Arguments were moot, but jointly requested that “the Court rule on Plaintiffs' motion to the extent it seeks to exclude certain written description and enablement arguments relating to the ‘590 patent.” [#265 at 1-2.] Trans Ova posited that the remaining challenges to whether changes to the written description and/or enablement arguments arising from the '590 Patent as related to “light emission material” (claims 4 and 30); “between about 5 micrometers and about 10 micrometers” (claims 7 and 33); “fluid stream generator” (claims 9 and 35); and “flow cytometer” (claim 26). [Id. at 2-3]. XY counters that the remaining written description and/or enablement arguments include an additional five claim terms from the '590 Patent: “particle differentiation apparatus” (claim 1 and 27); “particles” (claim 1 and 27); “capable of altering an operating voltage” (claim 1); “range of nearly 0 volts to below 400 volts” (claim 1); and “analyzer” (claim 27). [Id. at 2-3].
LEGAL STANDARDS
I. Colorado Local Patent Rules
As previously discussed [#168], the Colorado Local Patent Rules contemplate two sets of Invalidity Contentions. An initial set of Invalidity Contentions (“Initial Invalidity Contentions”) are required early in the case, typically within sixty days of the Scheduling Conference. See D.C.COLO.LPtR 4, 8 and D.C.COLO.LPtR Sched. Ord. Then a final set of Invalidity Contentions (“Final Invalidity Contentions”) are served in response to a final set of the Infringement Contentions after claim construction. See D.C.COLO.LPtR 16. A party seeking to amend contentions between the Initial and Final Invalidity Contentions must provide a separate statement of good cause. D.C.COLO.LPtR 16(a)(3), 16(b)(3). The court notes that the specific language of Local Patent Rule 16(b)(3) refers only to the identification of “additional prior art, ” but does not address additional invalidity theories. D.C.COLO.LPtR 16(b)(3). A party may move to exclude amendments between the Initial and Final Invalidity Contentions on the grounds that good cause for the amendment does not exist. D.C.COLO.LPtR 16(a)(4), 16(b)(4). A party may not present invalidity theories that are not properly disclosed. D.C.COLO.LPtR 16(b)(2); Crocs., Inc. v. Effervescent, Inc., No. 06-cv-00605-PAB-KMT, 2015 WL 5171332, at *2 (D. Colo. 2017).
The purpose of the Initial Invalidity Contentions is to facilitate robust disclosure of the Parties' respective positions, as the party asserting infringement is required to respond to the Initial Invalidity Contentions. D.C.COLO.LPtR10. As noted by XY, contentions are intended to ensure that parties “crystalize their theories of the case early in litigation so as to prevent the shifting sands approach” to the case. Wyers Prods. Grp., Inc. v. Cequent Performance Prods., Inc., No. 12-cv-02640-REB-KMT, 2015 WL 3494718, at *2 (D. Colo. Jun. 2, 2015). As with any pretrial disclosure, Initial and Final Invalidity Contentions are intended to aid the court in the efficient administration of justice by guiding the parties in framing the appropriate scope of discovery and eliminating unfair surprise. See Jama v. City and County of Denver, 304 F.R.D. 289, 295 (D. Colo. 2014) (observing that mandatory disclosure serves several purposes, including giving the opposing party information about the identification and locations of knowledgeable individuals to determine whether an individual should be deposed during discovery). Accordingly, despite the language of Local Patent Rule 16(b)(3), this court construes the requirement to show good cause with respect to amendments between the Initial and Final Invalidity Contentions to also include amendment to non-prior art arguments, including invalidity theories based on lack of written description and enablement. This is because a patent's specification and claims do not ordinarily change between the time of the Initial and Final Invalidity Contentions.
II. Good Cause
Good cause is not defined by the Local Patent Rules, but the Rules do provide for examples of good cause, e.g., discovery of previously undiscovered information or an unanticipated claimconstruction ruling. The Federal Circuit has found that “good cause” requires a showing of diligence. See O2 Micro Int'l Ltd. v. Monolithic Power Sys., 467 F.3d 1355, 1366 (Fed. Cir. 2006). This is consistent with the Tenth Circuit's interpretation of “good cause” under Rule 16(b)(4), which requires a movant to establish that scheduling deadlines cannot be met despite diligent efforts. See, e.g., Gorsuch, Ltd. B.C. v. Wells Fargo Nat'l Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014). Another judicial officer in this District has recently held that good cause is satisfied when a party seeking to amend infringement contentions demonstrated that amendment arose from discovery that was not available at the time of the Initial contentions. Brandt v. Honnecke, Civil Action No. 15-cv-02785-RM-NYW, ECF No. 176 (denying Defendant's Motion to Exclude/Strike Plaintiffs' Supplemental Infringement Contentions).
ANALYSIS
For a patent to be valid, its specification must “reasonably convey[] to the artisan that the inventor had possession at that time of the later claimed subject matter.” In re Kaslow, 707 F.2d 1366, 1375 (Fed. Cir. 1983). Section 112 of Title 35 of the United States Code includes a written description requirement separate from enablement that in “full, clear, concise, and exact terms.” 35 U.S.C. § 112(a) (2018); see also Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) ([T]his court has consistently held that § 112, first paragraph, contains a written description requirement separate from enablement . . . (citing Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1562-63 (Fed.Cir.1991)). The written description must “clearly allow persons of ordinary skill in the art recognize that the inventor invented what is claimed” at the time of the filing of the patent. Id. (citations and internal quotations omitted). The specification must also enable a person of ordinary skill in the art to make or use the full scope of the invention, without undue experimentation. ALZA Corp. v. Andrx Pharm., LLC, 603 F.3d 935, 940 (Fed. Cir. 2010). In its Initial Invalidity Contentions served on July 25, 2017, Defendant argued that the asserted claims of the '590 Patent were invalid for lack of written description and enablement. [#170-2 at 6-8]. Generally, in its Initial Infringement Contentions, Defendant contends that the patentee fails to disclose a particle differentiation apparatus that operates in a range from nearly 0 volts to below 400 volts, including at “just above 0 volts.” [Id. at 8]. Defendant argues that the written description does not support such a broad range of voltage, as it contains only information regarding the apparatus operating at very specific voltages, and no guidance as to how such operation to be expanded to the range of voltage. [Id.] Thus, Defendant argues that each of the asserted claims 1, 3-10, 13-20, 22-23, 26-27, 29-36, 39-46, 48-49, and 52 of the '590 Patent are invalid for lack of written description and/or enablement. [Id. at 8.] Defendant also argues that these claims are invalid as indefinite because the phrases “nearly 0 volts” or “just above 0 volts” lack the requisite specificity and definition, and claims 8 and 34 are invalid due to the indefiniteness because “the limitation of the irradiation beam being the height of the length of an asymmetrical particle along a longitudinal axis is immeasurable, and unable to be discerned.” [Id. at 9].
In its Final Invalidity Contentions, Trans Ova adds a table with additional written description and/or enablement arguments. [#170-1 at 13-16]. Plaintiffs argue that there are nine new written description/enablement arguments that this court should strike because there is no good cause to support the addition of these arguments from the Initial to Final Invalidity Contentions. [#170 at 4]. Specifically, Plaintiffs contend that arguments related to the written description and enablement are developed only by considering the '590 Patent itself, without the need for a prior art search or deposition testimony. [Id. at 22]. Plaintiffs further argue that “Trans Ova cannot reasonably assert that it has good cause for its new written description and enablement arguments based on the recent deposition of Ryan Christensen, Inguran's Chief Intellectual Property Counsel, ” because “Trans Ova tried injecting these same invalidity arguments back in December, long before Mr. Christensen's deposition.” [Id. at 11 n.5.] Trans Ova argues that the Local Patent Rules do not require good cause to support amendments to the Initial Invalidity
Contentions that are not based on prior art. [#185 at 8-9.] Defendant further contends that even if good cause was necessary to supplement non-prior art arguments, Trans Ova argues that its engagement of its technical expert led it to “identif[y] additional technical issues of impermissible overreach, ” and that “these were not technically ‘new' bases of invalidity as Trans Ova's preliminary contentions had already identified numerous written description and enablement issues with the claims.” [#185 at 9].
I. Requirement of Good Cause
As discussed above, this court interprets the Local Patent Rules to require good cause to support amendment or addition of non-prior art arguments from the Initial to Final Invalidity Contentions despite the language of D.C.COLO.LPtR 16(b)(3). Given the intent of the Local Patent Rules to facilitate early and robust disclosure of both infringement and invalidity theories, this court is not persuaded that the manner in which Local Patent Rule 16(b)(3) is written should be interpreted to mean that Invalidity Contentions can be changed repeatedly, or at any time, so long as such amendments do not implicate prior art. Indeed, as observed by Plaintiffs, invalidity arguments based on the manner a patent is written, e.g., lack of enablement or written description under 35 U.S.C. § 112(a), are less dependent upon or influenced by fact discovery to at least identify. Therefore, this court's answer to Defendant's first question: “[d]o this Court's Local Patent Rules implicitly require a “good cause” showing any time a defendant wishes to supplement its invalidity contentions before its Final Invalidity Contentions are due, ” is simply, yes.
Though not posed specifically by the Parties in this action, this court expressly addresses a question implicit to this inquiry: what types of changes constitute amendments that must be supported by good cause? In holding that amendments between Initial and Final Invalidity Contentions must be supported by good cause, this court finds that it is not productive, nor efficient, for the court to mechanically compare the words of the Initial Invalidity Contentions to those of the Final Invalidity Contentions to determine whether there are amendments that must be justified by good cause. To do so seems, to this court, to elevate form over function. Rather, consistent with the purpose of these contentions to give notice to the opposing party so that it may adequately prepare its positions, this court considers whether the amendments or additions to the Final Invalidity Contentions from the Initial ones are substantive and material, i.e., whether Defendant seeks to introduce new theories that have not previously been raised. Though this exercise will necessarily require the Parties' and a court's judgment and perhaps be less precise than a simple redline, to hold otherwise would be to require both the Parties and the Court to spend valuable time and resources finely parse each and every contention.
The court answered Defendant's second question, “[c]an a plaintiff preemptively challenge a defendant's ability to supplement its invalidity contentions, or must it wait until after the contentions are supplemented and then file a motion to exclude, ” with its Order dated May 14, 2018. [#168 at 21.] In this case, given the timing of the disclosures and the progress of the case, this court deferred ruling on the supplementation until the motion to exclude was filed and brief. [Id. at 22].
II. Did Trans Ova Satisfy Good Cause Here?
The court now turns to applying this standard to the case at hand. Contrary to Trans Ova's arguments, this court is not persuaded that all of Defendant's arguments in its Final Invalidity Contentions were not “technically new.” In the Final Contentions, Trans Ova concedes that there are new bases when it states that “Trans Ova's bases for the claims of the '590 patent lacking written description and/or enablement are further (and additionally) set out with reference to the table below.” [#170-1 at 12.] In comparing Trans Ova's Final Invalidity Contentions to its Initial ones, this court concludes that Trans Ova originally articulated its written description and enablement arguments as a failure to adequately disclose or enable particle differentiation apparatus that includes an analyzer that operates at any voltage other than what is specifically descripted by the specification, e.g., 200 volts, 262 volts and “below 300 volts” [#170-2 at 6-8; #1-4 at 53, col. 13, ll. 13-15, 37], and therefore, agrees that its arguments regarding “capable of altering a operating voltage, ” “range of nearly 0 volts to below 400 volts, ” and “analyzer” are not sufficiently “new” to require a showing of good cause.
But Defendant's arguments regarding certain terms, “particle differentiation apparatus, ” “particles, ” “light emission material, ” “between about 5 micrometers and about 10 micrometers, ” “fluid stream generator, ” and “flow cytometer, ” are, in fact, new. There are no arguments related to either these terms or their concepts in the Initial Invalidity Contentions. [#170-2 at 6-8.] Accordingly, the court now turns to whether good cause exists to justify the amendments, guided by the principle that the touchstone of good cause is a party's diligence, not prejudice to the non- moving party. Pumpco, Inc. v. Schenker Int'l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001) (explaining that, in the context of good cause for the amendment of a scheduling order, the court's focus was upon the moving party's diligence rather than bad faith or prejudice to the non-moving party).
Here, the court is not persuaded that Trans Ova has acted with diligence to identify its written description or enablement arguments with respect to “particle differentiation apparatus, ” “particles, ” “light emission material, ” “between about 5 micrometers and about 10 micrometers, ” “fluid stream generator, ” and “flow cytometer.” As an initial matter, whether a disclosure is enabling under § 112(a) is a question of law based on underlying factual inquiries. ALZA Corp., 603 F.3d at 940. And while compliance with the written description requirement is a question of fact, Vas-Cath Inc., 935 F.2d at 1563, Trans Ova points to no specific disputed facts that discovery was required to resolve before it could identify and advance these arguments. Defendant certainly did not need Ryan Christensen and Mike Evans to testify that the specification of the '590 Patent “fails to disclose any embodiments of the alleged invention other than a MoFlo® SX sperm sorter, having 2 PMTs, sorting for two particles (X- and Y-bearing bovine sperm), and using the Hoeschst 33342 dye” [#170-1 at 16] before it could argue that there is no written description support for “light emission material, ” “between about 5 micrometers and about 10 micrometers, ” “fluid stream generator, ” “flow cytometer, ” “particle differentiation apparatus, ” or “particles.” And to the extent that Trans Ova is relying testimony from either Mr. Christensen or Mr. Evans to establish that the specification of the '590 Patent does not enable a person of ordinary skill in the art to make or use the full scope of the invention, without undue experimentation, it includes no specific, substantive testimony by either witness that the court can consider. And while this court agrees that any § 112 addition to invalidity contentions should not be considered per se untimely if they are not included in the Initial Invalidity Contentions [#185 at 10], this court finds that there is simply not an adequate showing that Trans Ova was diligent in this particular case, based on the facts before the court. Trans Ova provides no substantive explanation as to why these § 112(a) arguments could not have been identified by the time of the Initial Invalidity Contentions; does not specifically identify which “technical expert” was needed to identify these additional written description and enablement arguments; fails to provide any declaration from that technical expert explaining why these additional arguments needed additional time for development; and does not explain why, after being well-versed in the technology for years as a licensee and a litigant since at least 2013, it needed additional testimony from Mr. Christensen or Mr. Evans to understand what technology was actually enabled by Plaintiffs. Therefore, this court simply cannot conclude that Trans Ova was diligent as to these additional arguments.
Though the Final Invalidity Contentions cited to certain deposition testimony from Messrs. Christensen and Evans [#170-1 at 16], that testimony does not appear to be before the court. [#185 at 8-9].
CONCLUSION
Accordingly, for the foregoing reasons, this court respectfully RECOMMENDS that:
(1) Plaintiffs' Motion to Exclude New Invalidity Arguments Under D.C.COLO.LPtR 16(b)(5) [#170, #171] be GRANTED IN PART and DENIED IN PART;
(2) Defendant's arguments related to written description and enablement of “light emission material, ” “between about 5 micrometers and about 10 micrometers, ” “fluid stream generator, ” “flow cytometer, ” “particle differentiation apparatus, ” or “particles” be STRICKEN;
(3) Defendant's arguments related to written description and enablement of “capable of altering a operating voltage, ” “range of nearly 0 volts to below 400 volts, ” and “analyzer” be PERMITTED; and
(4) All other relief requested by Plaintiffs' Motion to Exclude New Invalidity Arguments Under D.C.COLO.LPtR 16(b)(5) be DENIED as moot.
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the “firm waiver rule”); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).