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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

B-50.COM, LLC, §

§

Plaintiff, §

§

V. § CIVIL ACTION NO. 3: 04-CV-0542-B

§ ECF

XFORMITY, INC., §

§

Defendant. §

ORDER ADOPTING THE SPECIAL MASTER’S FINAL REPORT 

AND RECOMMENDATION ON SUMMARY JUDGMENT

The Special Master’s Final Report and Recommendation on Summary Judgment (“final

report”) in this patent case is before the Court for de novo review. As recounted in previous orders

of this Court, on September 8, 2005, the Court appointed attorney Jerry R. Selinger as Special

Master in this case for the purpose of assisting the Court in its claim construction analysis. On

November 17, 2005, Mr. Selinger filed his report and recommendation on certain disputed claim

terms which the Court adopted in its entirety on February 23, 2006. Thereafter, on April 5, 2006,

the Court re-appointed Mr. Selinger - this time to act as Special Master on the parties’ cross-motions

for summary judgment. He filed his finalreport on the cross-motions on August 3, 2006. Defendant

XFormity, Inc. (“Xformity”) followed with objections to the report on August 17, 2006. Plaintiff B50.com (“B-50”) responded to Xformity’s objections on September 1, 2006. The Special Master’s

final report on the cross-motions for summary judgment and the objections and responses thereto

are now ripe for the Court’s consideration. 

Under Rule 53(g), this Court conducts a de novo review of those portions of the Special

 

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Master’s final report to which objections have been filed and “may adopt or affirm; modify; wholly

or partly reject or reverse ...” the report. FED. R. CIV. P. 53(g). Here, the Court has elected to

conduct a de novo review of the Special Master’s final report in its entirety. Having done so, the

Court ADOPTS the Special Master’s final report in its entirety and OVERRULES XFormity,’s

objections as follows:

The Court GRANTS Xformity’s motion insofar as it seeks summary judgment of

non-infringement based on direct infringement under 35 U.S.C. § 271(a), based on active

inducement infringement under 35 U.S.C. § 271(b), and based on the absence of infringement under

the doctrine of equivalents, except with respect to “a central computing device.” The Court

otherwise DENIES Xformity’s motion. 

B-50's motion for summary judgment is DENIED, but pursuant to Rule 56(d), the Court

determines that the QSRx product meets all limitations of independent claim 1, except that the

following genuine issues of material fact remain for trial:

1. Whether the QSRx product has “a central computing device”;

2. Whether a restaurant-industry user logs into a web site for the purpose of performing

(at some point in time), and does perform, the sequence of three selection operations

that constitute defining a custom report format, starting from a report initiating page

and concluding with a report request selection, as required in step “(b)”;

3. Whether QSRx performs the “enabling” step required in step “(d)”; and

4. Whether the QSRx product is a staple article of commerce suitable for substantial

non-infringing use.

SO ORDERED.

 

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SIGNED October 13 , 2006 th

_________________________________

JANE J. BOYLE

UNITED STATES DISTRICT JUDGE

 

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