1

 Allcare initially alleged infringement of Claims 52, 53, and 102 of the

’105 patent but has since withdrawn its allegations of infringement of Claim 102.

To the extent not already done, Allcare’s claim for infringement of Claim 102 of

the ’105 patent is DISMISSED WITH PREJUDICE. (Note that the original order

indicated that the dismissal was without prejudice. The purpose of this amended

order is to point out that the dismissal was with prejudice.)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

HIGHMARK, INC. §

 §

VS. § CIVIL ACTION NO. 4:03-CV-1384-Y

 §

ALLCARE HEALTH MANAGEMENT §

SYSTEMS, INC. §

AMENDED ORDER ADOPTING FINDINGS

AND RECOMMENDATIONS OF SPECIAL MASTER

This is a patent infringement case. Plaintiff Highmark,

Incorporated (“Highmark”), filed this action against defendant

Allcare Health Management Systems, Incorporated (“Allcare”) seeking

declaratory judgment of invalidity, noninfringement, and unenforceability of U.S. Patent No. 5,301, 105 (“the ’105 patent”). Allcare

filed a counterclaim alleging infringement of the ’105 patent.1

The Court previously referred Allcare’s motion for claim

construction to Don Martens as special master. The Court adopted

his recommendations on March 23, 2007. Thereafter, the parties

filed the following motions:

1. Allcare’s motion (doc. #397) for summary judgment on the

enforceability of the ’105 patent.

2. Highmark’s motion (doc. #399) to exclude the expert opinion

and report of Robert A. Sherwin regarding reasonable royalty

calculation (relevant to damages).
2

 The Court conducted a de novo review of Allcare’s objections under Rule

53(g)(3), (4). 

2

3. Highmark’s motion (doc. #400) for summary judgment of noninfringement and invalidity of the ’105 patent.

4. Highmark’s motion (doc. #406) to exclude the testimony of Dr.

Stephen D. Holland on noninfringement.

5. Allcare’s motion (doc. #409) to exclude the expert testimony

of Mark M. Gleason regarding a reasonable royalty calculation

(relevant to damages).

6. Allcare’s motion (doc. #410) to exclude the expert testimony

of Jeremy Nobel, MD. 

Pursuant to the parties’ joint motion, the Court referred

these motions to Martens as a special master and directed him to

provide the Court with a report and recommended disposition.

Martens reviewed the motions, responses, and replies and conducted

a hearing on February 26, 2008. He then filed his report and

recommended decisions on April 25, 2008. Under Federal Rule of

Civil Procedure 53(g)(2), Allcare filed certain objections to

Martens’s recommendations. 

The Court has reviewed Martens’s report and recommendations,

Allcare’s objections, Highmark’s response, and Allcare’s reply.2

After review, the Court OVERRULES Allcare’s objections for the

reasons stated in Martens’s report and recommendations as well as

for the reasons stated in Highmark’s response and the Court ADOPTS,
3

 Because the Court has adopted the special master’s recommendation that

summary judgment of noninfringement of the ’105 patent should be entered,

Sherwin’s testimony is now moot since it would only be relevant if Highmark were

found to have infringed on the ’105 patent. Had the motion not been rendered

moot, the Court would have adopted the special master’s recommendation and denied

the motion. 

4

 Because the Court has adopted the special master’s recommendation that

summary judgment of noninfringement of the ’105 patent should be entered,

Gleason’s testimony is now moot since it would only be relevant if Highmark were

found to have infringed on the ’105 patent. Had the motion not been rendered

moot, the Court would have adopted the special master’s recommendation and

granted the motion in part to exclude the third bullet point on page thirty-one

and footnote 147 of Gleason’s report. In all other aspects, the motion would

have been denied. 

3

as stated below, Martens’s recommendations. See FED.R.CIV.P.

53(g)(1).

Accordingly, 

1. Highmark’s motion (doc. #400) for summary judgment is PARTIALLY GRANTED AND PARTIALLY DENIED. On the issue of

noninfringement, Highmark’s motion for summary judgment is

GRANTED. On the issue of invalidity of the ’105 patent,

Highmark’s motion for summary judgment is DENIED. 

2. Allcare’s motion (doc. #397) for summary judgment on the

enforceability of the ’105 patent is DENIED.

3. Highmark’s motion (doc. #399) to exclude the expert opinion

and report of Robert A. Sherwin is RENDERED MOOT.3 

4. Allcare’s motion (doc. #409) to exclude the expert testimony

of Mark M. Gleason is RENDERED MOOT.4

5. Highmark’s motion (doc. #406) to exclude the testimony of Dr.

Stephen D. Holland is DENIED.

6. Allcare’s motion (doc. #410) to exclude the expert testimony
5

 Because the Court has adopted the special master’s recommendation that

summary judgment of noninfringement of the ’105 patent should be entered, Nobel’s

testimony regarding Highmark’s noninfringement of the patent is now moot. Had

that portion of the motion not been rendered moot, the Court would have adopted

the special master’s recommendation and granted the motion in part to exclude

Nobel’s opinion that the claim preamble does not read on Highmark’s accused

system. Further, the Court would have directed that Nobel amend his report to

cite evidentiary support for the paragraphs identified in the special master’s

report to the extent that such support is available. In all other aspects, the

motion would have been denied. 

4

of Jeremy Nobel, MD, is DENIED vis-á-vis his testimony

regarding the invalidity of the ’105 patent. In regards to

his testimony regarding the non-infringement of the ’105

patent, the motion is RENDERED MOOT.5 

SIGNED September 2, 2008.

____________________________

TERRY R. MEANS

UNITED STATES DISTRICT JUDGE