UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PACKAGING SPECIALTIES,

INCORPORATED,

HON. MARIANNE O. BATTANI

Plaintiff,

Civil No: 09-10232

v.

ANCHOR BAY PACKAGING

CORPORATION,

Defendant.

___________________________________/

OPINION AND ORDER REGARDING CLAIM CONSTRUCTION

Before the Court are the parties’ claim construction briefs relating to interpretation of

a disputed claim term in U.S. Patent 6,832,562B2 (“the ‘652 patent”). In this patent

infringement litigation, Plaintiff Packaging Specialties, Inc. (“PSI”) and Defendant Anchor

Bay Packaging Corporation (“Anchor Bay”) have tasked the Court with claim construction

pursuant to Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995) (en banc),

aff'd, 517 U.S. 370 (1996). At a hearing conducted on November 2, 2010, the parties

agreed that the term "shelf flap," found in Claims 1 and 13, is the only term that requires

construction at this time. PSI says that the Court should interpret the term broadly given its

ordinary meaning in the context of the intrinsic record. Anchor Bay contends that the term

is narrowly defined in the specification and that this definition should be read into the claims.

For the reasons that follow, the Court construes "shelf flap" to mean: “a member that is

bendable along a fold line and has a support surface engaging the face section of the shelf

support block.”
I. BACKGROUND

Entitled “Shipping Container,” the ‘652 patent was issued to Kurt, Kent, and Keith

Tabor and is currently assigned to PSI. (Doc.1 Ex. A). Kurt Tabor explained that he

conceived of the shipping container claimed in the ‘652 patent in response to certain

European Union requirements that automotive sunroof shipping containers be manufactured

from 100% recyclable materials. (Doc. 40 Ex. C). Anchor Bay developed a competing,

nonpatented shipping container in response to the same requirements. PSI filed the instant

civil action alleging that Anchor Bay’s container infringes PSI’s rights in the ‘652 patent.

The Court held a tutorial session in which the parties informed the Court about the

industry context from which this dispute arose, provided physical exhibits of the shipping

containers at issue, and described the elements of each container as they relate to the

disputed claim term. After the session, the Court received concise briefing on the claims

that require construction and conducted a Markman hearing on November 2, 2010. 

II. CLAIMS REQUIRING CONSTRUCTION

A. U.S. Patent No. 6,832,562B2

At this point in the proceedings, the parties dispute what the term “shelf flap” means

in Claims 1 and 13. The full text of these claims is set forth below. The claim term requiring

construction is underlined.

1. Claim 1

A container for shipping and storing manufactured articles, said

container comprising:

a container body having a base assembly and a plurality of wall

assemblies, wherein each of said plurality of wall assemblies

includes a wall panel with a lower edge attached to said base

assembly, and at least one lateral edge joined to an adjacent wall

panel;

a plurality of shelf assemblies secured to said wall assemblies and

protruding into an interior of said container body, each of said
plurality of shelf assemblies including at least one shelf support

block and at least one shelf flap having a support surface; wherein

 said at least one shelf flap is attachable to said at least one shelf

support block, thereby engaging the support surface with a face

section located on the at least one shelf support block.

2. Claim 13

A shipping container with an integral interior shelf assembly comprising:

a container base;

a plurality of attached wall members, each of said wall members

having a bottom edge affixed to an exterior side of said container

base, said container base and said wall members defining an

interior cavity;

a front wall assembly having a front wall panel with at least one

attached positioning block and left and right flap sections connected

to said front wall panel, said left and right flap sections being

securable to said container body;

at least two shelf assemblies, said at least two shelf assemblies each

comprising a plurality of shelf flaps mounted to at least one shelf

support block; wherein

each of said plurality of shelf flaps has a planar support surface in

substantially flush engagement with a face on said at least one

shelf support block.

III. CLAIM CONSTRUCTION STANDARDS

Claim construction is a process by which a court determines the meaning and scope

of patent claims. “It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define

the invention to which the patentee is entitled the right to exclude.’ ” Phillips v. AWH Corp.,

415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water, Inc. v. Safari

Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). When there is an

allegation that a claim is ambiguous, or a dispute as to the meaning of a claim term, a court

must “construe claims by considering the evidence necessary to resolve [such] disputes ...

[and] assign a fixed, unambiguous, legally operative meaning to the claim.” Liquid

Dynamics Corp. v. Vaughan Co., Inc., 355 F.3d 1361, 1367 (Fed.Cir.2004) (citing Vitronics
4

Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996)). The claim construction

process is “simply a way of elaborating the normally terse claim language in order to

understand and explain, but not to change, the scope of the claims.” Embrex, Inc., v. Serv.

Eng'g Corp., 216 F.3d 1343, 1347 (Fed.Cir. 2000) (quotation omitted). Claim construction

is a matter of law for the Court. Markman, 52 F.3d at 979. The Court's task is limited to

construing controverted claim terms. Vivid Technologies v. American Science &

Engineering, Inc., 200 F.3d 795, 803 (Fed.Cir.1999) (“[O]nly those terms need be construed

that are in controversy, and only to the extent necessary to resolve the controversy.”).

The claim construction analysis begins with the words of the claim. Vitronics Corp.,

90 F.3d at 1582; Innova/Pure, 381 F.3d at 1116 (“[A] claim construction analysis must begin

and remain centered on the claim language itself....”). The words of the claim are generally

given their ordinary and customary meaning. Vitronics Corp., 90 F.3d at 1582. The ordinary

and customary meaning of a claim term “is the meaning that the term would have to a

person of ordinary skill in the art in question at the time of the invention.” Phillips, 415 F.3d

at 1313. The person of ordinary skill in the art views the claim term in the light of the entire

intrinsic record. See, id. 

The intrinsic record consists of the claim language, the specification, and the

prosecution history. Phillips, 415 F.3d at 1312. “It is well settled that ... [s]uch intrinsic

evidence is the most significant source of the legally operative meaning of disputed claim

language.” Vitronics Corp., 90 F.3d at 1582 (internal citation omitted). “The claims,

specification, and the file history, rather than extrinsic evidence, constitute the public record

of the patentee's claim, a record on which the public is entitled to rely. In other words,
5

competitors are entitled to review the public record, apply the established rules of claim

construction, ascertain the scope of the patentee's claimed invention and, thus, design

around the claimed invention.” Id. at 1583. 

A court must always read the claim language in conjunction with the specification,

which is “highly relevant to the claim construction analysis. Usually it is dispositive; it is the

single best guide to the meaning of a disputed item.” Vitronics Corp., 90 F.3d at 1582; see

also Phillips, 415 F.3d at 1315-16 (identifying the importance of the specification in claim

construction). When reviewing the specification, the court should “determine whether the

inventor has used any terms in a manner inconsistent with their ordinary meaning.”

Vitronics Corp., 90 F.3d at 1582 (alteration added); see also, Phillips, 415 F.3d at 1316

(“[T]he specification may reveal a special definition given to a claim term by the patentee

that differs from the meaning it would otherwise possess. In such cases, the inventor's

lexicography governs.”). “In determining whether a statement by a patentee was intended

to be lexicographic, it is important to determine whether the statement was designed to

define the claim term or to describe a preferred embodiment.” E-Pass Tech., Inc. v. 3Com

Corp., 343 F.3d 1364, 1369 (Fed. Cir. 2003). “Such special meaning, however, must be

sufficiently clear in the specification that any departure from common usage would be so

understood by a person of experience in the field of the invention.” Multiform Desiccants,

Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998). Accordingly, “claim terms take

on their ordinary and accustomed meanings unless the patentee demonstrated an intent to

deviate from the ordinary and accustomed meaning of a claim term by redefining the term

or by characterizing the invention in the intrinsic record using words or expressions of
6

manifest exclusion or restriction, representing a clear disavowal of claim scope. Teleflex,

Inc. v. Ficosa North America Corp., 299 F.3d 1313, 1324 (Fed. Cir. 2002).

When reviewing the specification and the claim, a court must keep in mind two

axioms: (1) the claims must be construed in view of the specification and (2) reading a

limitation from the specification into the claims is improper. See, Playtex Prods., Inc. v.

Proctor & Gamble Co., 400 F.3d 901, 906 (Fed. Cir. 2005) (noting both axioms). The

inherent tension between these axioms becomes apparent when “the written description of

the invention is narrow, but the claim language is sufficiently broad that it can be read to

encompass features not described in the written description, either by general

characterization or by example in any of the illustrative embodiments.” Liebel-Flarsheim Co.

v. Medrad, Inc., 358 F.3d 898, 905 (Fed. Cir. 2004). When faced with this particular

situation, a court should look “ ‘to the specification to ascertain the meaning of the claim

term as it is used by the inventor in the context of the entirety of his invention,’ and not

merely to limit a claim term.” Interactive Gift Exp., Inc. v. Compuserve Inc., 256 F.3d 1323,

1332 (Fed. Cir. 2001) (quoting Comark Communications, Inc. v. Harris Corp., 156 F.3d

1182, 1187 (Fed. Cir. 1998)). Moreover, “[e]ven when the specification describes only a

single embodiment, the claims of the patent will not be read restrictively unless the patentee

has demonstrated a clear intention to limit the claim scope using words or expressions of

manifest exclusion or restriction.” Decisioning.com, Inc. v. Federated Dept. Stores, Inc.,527

F.3d 1300, 1309 (Fed. Cir. 2008) (citing Liebel-Flarsheim Co., 358 F.3d at 906). 

A court may also consider the prosecution history of the patent. “[T]he prosecution

history can often inform the meaning of the claim language by demonstrating how the
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inventor understood the invention and whether the inventor limited the invention in the

course of the prosecution, making the claim scope narrower than it otherwise would be.”

Phillips, 415 F.3d at 1317 (citing Vitronics Corp., 90 F.3d at 1582-83). While the history

gives the claim language context, it should not be used to “enlarge, diminish, or vary the

limitations in the claims.” Markman, 52 F.3d at 980 (quotations omitted).

In addition to reviewing the available intrinsic evidence, a court may also receive

extrinsic evidence “to aid [it] in coming to a correct conclusion as to the true meaning of the

language employed in the patent.” Markman, 52 F.3d at 980 (quotations omitted). Extrinsic

evidence consists of all evidence external to the patent and prosecution history, including

testimony of inventors or experts, dictionaries, and learned treatises. Id. “However, extrinsic

evidence cannot be used to contradict the established meaning of the claim language.” Gart

v. Logitech, 254 F.3d 1334, 1340 (Fed. Cir. 2001). Ultimately, a court may arrive at the

ordinary and customary meaning of a claim term by reviewing a variety of sources.

Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1298 (Fed. Cir. 2003). These

sources “include the claims themselves, dictionaries and treatises, and the written

description, the drawings, and the prosecution history.” Id. (internal citations omitted).

IV. ANALYSIS

A. Disputed Term: “Shelf Flap”

The disputed claim term “shelf flap” appears in Claims 1, 2, 7, 8, 9, 11, 13, and 15.

The parties disagree what “shelf flap” means as used in Claims 1 and 13. Claims 1 and 13

are both independent claims. The term “shelf flap” is not expressly defined in the claims or

the specification. The parties proposed constructions of that term are as follows:
8

Plaintiff / PSI:

A member that is bendable along a fold line

and has a support surface engaging the

face section of the shelf support block.

Defendant / Anchor Bay:

A folded member constructed from multiple

corrugated laminations having an upper

member and a lower member, separated by

a central fold line. The upper member has

a plurality of attached foldable upper tabs

that, with upper member, define a first

channel. The lower member has a plurality

of attached foldable lower tabs that, with

lower member, define a second channel.

The upper member and lower member

each have a set of foldable end tabs, which

are glued to each other when the shelf flap

is in a fully folded configuration, and are

secured by inserting a barbed tab into a

slot. With end tabs secured, each shelf flap

is roughly triangular in an end-view cross

section, with closed ends.

Plaintiff PSI acknowledges that while the “shelf flap” of the single preferred

embodiment (shown as 54 in Figure 4 and 5 of the ‘652 patent) contains the tabs as

described in Defendant’s proposed construction, these tabs are not part of the broadest

claim. Therefore, the Court should not read the limitations from the specification into the

claim. Defendant Anchor Bay responds by arguing that the specification defines “shelf flap”

with a visual depiction, Fig. 8, and a written description at column 4 on lines 24-48.

Defendant contends that this is the only description giving notice to the public for the

meaning of that term and must be limited accordingly.

 The Court begins by noting that the parties agree that (1) there is no industry

standard definition of “shelf flap” and (2) any construction of that term must include a fold

line. Turning to the language of the claims themselves, Plaintiff acknowledges that “shelf
9

flap” means that same thing in claim 13 as it does in claim 1. A claim term must be given

its ordinary meaning unless the patentee characterized the invention in the intrinsic record

with words or expressions of manifest exclusion or restriction that represents “a clear

disavowal of claim scope.” Teleflex, 299 F.3d at 1325. Defendant notes that the

specification contains only one preferred embodiment of the shelf flap structure. From that

foundation, it argues that the Court should limit the definition of “shelf flap” to that single

preferred embodiment, as described in column 4 on lines 24 – 48 of the specification. While

Defendant is correct that ‘562 patent has but one preferred embodiment of the shelf flap,

that observation does not end the analysis. The Federal Circuit has repeatedly and

“expressly rejected the contention that if a patent describes only a single embodiment, the

claims of the patent must be construed as being limited to that embodiment.” Laryngeal

Mask Co. Ltd. v. Ambu, 618 F.3d 1367, 1372 (Fed. Cir. 2010) (quoting Phillips, 415 F.3d

at 1323); Tex. Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1204-05 (Fed. Cir. 2002);

SRI Int'l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1121 n. 14 (Fed. Cir. 1985) (en

banc). When presented with this argument, a court should “not limit broader claim language

to that single application unless the patentee has demonstrated a clear intention to limit the

claim scope using words or expressions of manifest exclusion or restriction.” Abbott

Laboratories v. Sandoz, Inc., 566 F.3d 1282,1288 (Fed. Cir. 2009) (en banc) (internal

quotations omitted). Therefore, the Court reviews the record to decide whether the

inventors expressed a desire to limit the invention disclosed to the preferred embodiments

contained in the specification.
10

The intrinsic record of the ‘652 patent does not show that the patentees clearly

intended to limit the claim term “shelf flap” to the preferred embodiment. To the contrary,

the patentees expressly rejected any limitation at all. In the final paragraph of the

specification, immediately before the claims begin, the inventors plainly state: “It should be

understood that the present description is for illustrative purposes only, and should not be

interpreted to limit the scope of the present invention in any way.” ‘652 Patent at col. 6, ll

14-15. Standing alone, this nonspecific boilerplate is not very helpful in the claim

construction exercise. However, that qualifying statement is consistent with the

specification’s repeated reference to the “preferred embodiment,” as well as descriptions of

alternative embodiments of various substructures.

The inventors carefully and consistently used phrases throughout the specification

such as: “in a preferred embodiment . . . ,” “preferably constructed . . . ,” “preferably glued

. . . ,” “preferably foldable . . . ,” or “preferred embodiment of the present invention. . . . ”

See generally, id. at col. 2-6. These phrases reflect the inventors’ teaching that those skilled

in the art can embody the invention with “various modifications.” Id. at col. 6, ll 17-18.

Relatedly, the specification describes alternative ways to build the invention. This provides

further evidence that the inventors’ did not intend to have the specification limit the claim

scope. See, id. at col. 6, ll 22-33 (“a preferred embodiment has been illustrated as having

four walls, however, the shelf assembly that is an object of the present invention might find

application in three sided or many sided containers, or even as a separate stand alone shelf

... substantial variations might be made to the number and positioning of shelf assemblies

within the container, allowing goods of differing shapes and sizes to be positioned in the
11

same container ... the presently disclosed shelf assembly could find application in containers

designed not for shipping, but for permanent storage or display of manufactured articles.”)

The specification also describes at least three alternative embodiments of various

substructures of the invention. These include the hinged support panel that could be

attached to the sidewalls and the rear wall of the container in a wraparound fashion; the

shelf assemblies may be attached only to the sidewalls of the container and not the back

wall, and that the container may use a removable top or front wall assembly rather than

secured panels. Id. at col. 2, ll 48-51; col. 2, ll 55-57; col. 6, ll 8-9. The fact that the

inventors do not describe an alternative embodiment of the shelf flap, when they have

included descriptions for alternative embodiments of other structures, does not show that

the inventors clearly intended to limit the meaning of “shelf flap” solely to what they have

described in the specification. The inclusion of these alternative embodiments is evidence

that the inventors did not intend to limit their claims to the preferred embodiment.

Defendant’s proposed construction comes from a section in the specification where

the inventors clearly explain that the “shelf flap” described therein relates only to the

preferred embodiment. Specifically, in Col. 4, from which Defendant pulls its proposed

interpretation, the inventors explain:

Referring now to FIG. 8, there is shown a flattened (unfolded) shelf flap 54 as

used in the preferred construction of each shelf assembly 50 ... Each shelf

flap 54 is preferably constructed of multiple corrugated laminations, however,

some other material such as a flexible, non-corrugated material might be

employed ... In a preferred embodiment, upper surface 57 and lower surface

58 each have a set of foldable end tabs 55, which are preferably glued to

each other when shelf flap 54 is in a fully folded conformation, and are

securable by inserting a barbed tab 76 into a slot 78 ... In a preferred
12

embodiment, the end tabs 55 attached to shelf support surface 57 slope

slightly downward with respect to support surface 57 when the shelf is fully

constructed, facilitating loading of articles into container 10. A small foldable

rectangular section 79 is preferably included on shelf flap 54, and can fold

slightly outward to accommodate a shelf support block 52.... 

Id. at col. 4, ll 24-48 (emphasis added). This is a curious place from which the Defendant’s

source their proposed construction. The above passage makes clear that the inventors

were describing the “shelf flap” of the preferred embodiment instead of defining what that

term means in claims 1 and 13. 

The intrinsic record leads to the conclusion that the specification’s description of the

“shelf flap” is not “the invention” itself, but rather the “preferred embodiment” of the

invention. The Court rejects Defendant’s argument that since the specification refers to one

preferred embodiment, it becomes “the invention” and the claims must be limited

accordingly. Defendant premised this argument on the claim construction principle that if

the specification defines features of “the invention,” rather than describing an embodiment

of that invention, it is appropriate to apply to this definition to the claims. See, Verizon

Services Corp. v. Vonage Holdings Corp., 503 F.3d 1295, 1308 (Fed. Cir. 2007) (“When a

patent thus describes the features of the ‘present invention’ as a whole, this description

limits the scope of the invention.”); Honeywell International, Inc., v. ITT Industries, Inc., 452

F.3d 1312, 1318 (Fed. Cir. 2006) (written description discussing “this invention” and “the

present invention” may limit claim scope); C.R. Bard, Inc. v. United States Surgical Corp.,

388 F.3d 858, 864 (Fed. Cir. 2004) (“Statements that describe the invention as a whole,

rather than statements that describe only preferred embodiments, are more likely to support

a limiting definition of a claim term.”); Newfrey, LLC v. Burnex Corp., 637 F.Supp.2d 527,
13

538 (E.D. Mich. 2008) (“It is a well established canon of claim construction that when a

particular embodiment is described in the specification as the invention itself, and not just

one way of utilizing it, the claims are not entitled to a scope broader than that

embodiment.”). As discussed above, the cited passages from the specification

unambiguously describe the “shelf flap” of the preferred embodiment. The specification

makes clear that description of the shelf flap is not “the invention,” but rather the preferred

embodiment of the invention. Therefore, the claim construction principle advanced by

Defendant does not alter the Court’s finding.

The doctrine of claim differentiation further undermines Defendant’s proposed

construction. The Federal Circuit has generally characterized the doctrine of claim

differentiation as the “presumption that each claim in a patent has a different scope.”

Curtiss-Wright Flow Control Corp. v. Velan, Inc., 438 F.3d 1374, 1380 (Fed. Cir. 2006)

(quoting Versa Corp. v. Ag-Bag Int'l Ltd., 392 F.3d 1325, 1330 (Fed. Cir. 2004)).

“Differences among claims can also be a useful guide in understanding the meaning of

particular claim terms.” Phillips, 415 F.3d at 1314 (citing Laitram Corp. v. Rexnord, Inc., 939

F.2d 1533, 1538 (Fed. Cir.1991)). When this doctrine is applied to a pair of independent

claims, such as the case here, a court should determine whether a proposed construction

“would render additional, or different, language in another independent claim superfluous.”

Curtiss-Wright, 438 F.3d at 1381. In this matter, the Court has compared the language of

the unasserted independent claim 7 to the language of claims 1 and 13. Each of these three

claims references a “shelf flap.” Only claim 7 adds the additional limitations that the “first”

and “second surfaces” of the “shelf flap” include “a plurality of foldable tabs” that are
14

“insertable through” “lateral slots” defined in a panel of the claimed “shelf assembly.” Claim

7 essentially describes the preferred embodiment of the shelf flap. If the Court were to

adopt Defendant’s construction and restrict “shelf flap” to the preferred embodiment, the

language relating to foldable tabs in claim 7 would be superfluous. The uniform use of “shelf

flap” throughout claims 1, 7, and 13 demonstrates that the “plurality of foldable tabs” and

related language in claim 7 is not inherent “shelf flap” as found in claims 1 and 13. The

claim differentiation doctrine shows that the inventor did not intend for the specification to

narrowly define “shelf flap.” This doctrine persuades the Court that Defendant’s construction

is improper because it would make other claim terms in the ‘652 patent redundant.

Given the above discussion, this is not the rare case in which the Court will limit the

claims to the preferred embodiment. See, Taskett v. Dentlinger, 344 F.3d 1337, 1340 (Fed.

Cir. 2003) (“Though it is true that we must read a claim in light of the specification, rarely will

we limit the claim to the preferred embodiments described in that specification.” (citing

Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1325 (Fed. Cir .2003))).

Throughout the specification, the inventors explicitly state that the embodiment described

therein is merely illustrative of the preferred embodiment and should not limit the various

alternative forms the invention might take. The Court finds that a person of ordinary skill in

the art would arrive at the conclusion that the patentees did not intend the specification’s

description of “shelf flap” to limit the definition of that term as used in claims 1 and 13.

Having rejected Defendant’s construction, the Court finds that the intrinsic record

validates Plaintiff’s proposed construction. The specification teaches that the "shelf flap"

can be constructed with bendable material. '652 Patent at col. 4, ll 26-28 ("Each shelf flap
15

54 is preferably constructed of multiple corrugated laminations, however, some other

material such as a flexible, non-corrugated material might be employed."). The parties

agree that any construction of “shelf flap” must include a fold line. The specification explains

that each “shelf flap” has a fold line. Id. at col. 4, ll 29-31 (“Each shelf flap 54 has an upper

surface 57 and a lower surface 58, separated by a central fold line 51"). Plaintiff then adds

to its definition a support surface engaging the face section of the shelf support bar. The

text of claims 1 and 13 supports this addition. Claim 1 provides, "at least one shelf flap is

attachable to said at least one shelf support block, thereby engaging the support surface

with a face section located on the at least one shelf support block." Id. at col. 6, ll 49-52.

Claim 13 contains similar language, "each of said plurality of shelf flaps has a planar support

surface in substantially flush engagement with a face on said at least one shelf support

block." Id. at col. 8, ll 24-26. The specification further confirms Plaintiff’s definition. Id. at

col. 2, ll 17-20 (“Each of the plurality of shelf flaps has a support surface in substantially

flush engagement with a face on the at least one shelf support block.”). Accordingly, the

Court adopts Plaintiff’s proposed construction. 

V. CONCLUSION

For the reasons discussed above, the Court adopts Plaintiff’s proposed construction.

The term “shelf flap,” as used in Claims 1 and 13, means “a member that is bendable along

a fold line and has a support surface engaging the face section of the shelf support block.”

IT IS SO ORDERED.
16

s/Marianne O. Battani 

MARIANNE O. BATTANI

UNITED STATES DISTRICT JUDGE

DATED: December 13, 2010

CERTIFICATE OF SERVICE

Copies of this Order were served upon Petitioner and counsel of record on this date

by ordinary mail and/or electronic filing.

 s/Bernadette M. Thebolt

Case Manager