Opinion
Civil Action No. 98-118
April 2, 2002
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that the Report and Recommendation (Docket #105) of February 8, 2002, be amended so as to clarify that no "hard-wired conduction path" limitation applies to the terms "electrical communication/electronically connected" wherever they appear.
II. REPORT
A Report and Recommendation (Docket #105) was filed in this patent case on February 8, 2002, which recommended that the claims in suit be interpreted as set out in detail therein. All parties were informed of their right to file written objections.
On February 22, 2002, plaintiff Sightsound.com, Inc. filed a Request for Clarification of (or, in the Alternative, an Objection to) One Aspect of Report and Recommendation on Claim Construction (Docket #107). An order (Docket #108) was entered on February 25, 2002, calling for the defendant to respond to the plaintiff's request/objection by March 4, 2002. Counsel for defendant informed the court by telephone that it would not be responding to the plaintiff's request, presumably relying on their more extensive objections to the Report.
At issue is the recommended construction of the terms "electrical communication/electronically connected" appearing at pages 64-65 of the Report. The terms are used in claims 4-8, 10, 11-14 and 26 of the `734 patent and in claims 13-15 of the `440 patent.
The defendant's proffered construction of the terms at issue began by proposing a requirement of "a continuous hard-wired conduction path. . . ." As the plaintiff correctly notes, the Report recommended a construction that, in respect to nearly all the claims, rejected the proposed "hard-wired conduction path" limitation. But when discussing whether the individual components of the first and second party memories must be connected by a hard-wired conduction path, the Report departed from the approach generally taken and proposed that the court hold that "as to invention elements at the same location `electronically connected' and `electrical communication' each require a hard-wired conduction path." (Report and Recommendation at 65). This is the recommendation which the plaintiff requests be clarified or, in the alternative, to which it objects.
The language quoted above was preceded by this clause: "Thus, the parties are in agreement that. . . ." The plaintiff argues vigorously and persuasively that it is not now, nor has it ever been "in agreement" that the hard-wired conduction path is a limitation on the terms to be interpreted. What the plaintiff did say, and what the undersigned took to be agreement with the defendant, was this:
"Third, with respect to the electrical connection among the invention elements that are in the same location, this [i.e., the defendant's proposed] definition repeats and adds to the language of the claims. The language of the claims specifically uses these terms to link recited elements and it does so by clear and express recitations. Accordingly, the Court should afford these terms their plain and ordinary meaning as they appear in the claims." (Docket #74 at 30)
It is clear now that it was error to interpret the plaintiff's language as expressing its agreement with the defendant's proposed construction. Moreover, neither the claims wherein the terms appear nor the specification nor the prosecution history imply that such a limitation as is proposed by the defendant is necessary or was contemplated.
It is respectfully recommended that the Report and Recommendation (Docket #105) filed on February 8, 2002, be amended so as to make clear that no "hard-wired conduction path" limitation applies to the terms "electrical communication/electronically connected" wherever they appear.
In accordance with the Magistrates Act, 28 U.S.C. § 636 (b)(1)(B) and (C), and Local Rule 72.1.4 B, the parties are allowed ten (10) days from the date of service to file written objections to this report. Any party opposing the objections shall have seven (7) days from the date of service of objections to respond thereto. Failure to timely file objections may constitute a waiver of any appellate rights.