Opinion
5:14-cv-1122 (TJM/DEP) LEAD CASE 5:16-cv-538 (TJM/DEP) MEMBER CASE
09-27-2017
WELCH ALLYN, INC., Plaintiff, v. OBP CORPORATION and OBP MEDICAL, INC., Defendants.
Thomas J. McAvoy, D.J.
DECISION and ORDER
The Court referred these patent infringement actions to the Hon. David E. Peebles, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72.3(d) of the Local Rules of the Northern District of New York. Presently at issue is claim construction. See Plaintiff's Opening Claim Construction Brief, dkt. # 119; Defendants' Opening Claim Construction Brief, dkt. # 120.
The Report-Recommendation, dated June 23, 2017, recommended construction language for the claim terms at dispute in the matter.
Defendants filed objections to the Report and Recommendation. When objections to a magistrate judge's Report-Recommendation are lodged, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1). After such a review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." Id.
Having reviewed the record de novo and having considered the issues raised in the Plaintiff's objections, this Court has determined to accept and adopt the recommendations of Magistrate Judge Peebles for the reasons stated in the Report-Recommendation.
Accordingly:
Defendants' objections to the Report-Recommendation, dkt. # 131, are hereby OVERRULED, and the Report-Recommendation, dkt. # 126, is hereby ADOPTED. The following constructions of the claim terms at issue are hereby adopted:
| Term | Construction |
|---|---|
| illumination assembly | a self-contained illumination assembly thatcan be easily moved from place-to-place |
| mechanism for energizing/mechanism forselectively energizing | a slider switch with a conductive strip; arotary switch with a conductive strip; anoptical switch; a magnetic/reed switch; anON/OFF throw switch that can be enabledwith the speculum when engagedtherewith to automatically or manuallyenergize and de-energize the LED; andequivalents of the foregoing switches |
| the housing extends along the innersurface of the curved portion of the lowerblade | the housing extends along, but can extendbeyond, the inner surface of the lowerblade that is curved |
| the proximal end of the housing isdisposed along the inner surface of thecurved portion of the lower blade/aproximal end of the housing is disposedalong the inner | the proximal end of the housing ispositioned along the lower portion of theinner surface of the lower blade that is thecurved portion of the lower blade |
| the housing of the portable illuminationassembly being attached to the innersurface of the curved portion of the lowerblade and shaped in accordance with thecurved portion/the housing of the portableillumination assembly is attached to theinner surface of the curved portion of thelower blade and shaped in accordancetherewith/defined by a shape thatconforms with the curved portion | the housing of the portable illuminationassembly is attached to the inner surfaceof the curved portion of the lower bladeand is shaped in accordance with thecurved portion of the lower blade, but neednot be attached to that curved portion at allpoints |
| retained | held in place |
| a switch disposed on the exterior of thehousing | at least a portion of the switch is placed incontact with the exterior of the housing |
| at least one of the speculum and theillumination assembly is configured for atleast oneof single use or single patient use | the speculum, the illumination assembly,or both, are designed to be discarded aftera single use or a single patient use |
| circuitry | two or more components through which anelectric current can flow |
IT IS SO ORDERED.
Dated:September 27, 2017
/s/_________
Thomas J. McAvoy
Senior, U.S. District Judge