R-Boc Reps., Inc. v. Minemyer, No. 11 C 8433, Slip Op. (N.D. Ill. Sep. 18, 2014) (Cole, Mag. J.).
Judge Cole denied plaintiff R-Boc’s motion for reconsideration regarding the Court’s prior denial of its motion for leave to amend its Final Invalidity Contentions and supplement its expert reports to add an indefiniteness argument in this patent case. In the underlying motion, R-Boc argued that the Supreme Court’s recent Nautilus decision which relaxed the indefiniteness standard — created a new indefiniteness argument regarding the term “approximately perpendicular.” After an explanation of the meaning of Shakespeare’s phrase “hoist with his own petard.” The Court explained that R-Boc was hoist by its own petard in the form of its strategy decisions to propose a construction of the term which defendant agreed to and the Court adopted. The Court then turned to French in italics to emphasize R-Boc’s repeated strategy decisions since 2008:
- “C’est une petard”: R-Boc proposed its construction.
- “C’est deux petards”: After defendant accepted R-Boc’s construction, R-Boc chose to forego a claim construction hearing.
- “Le troisieme petard”: R-Boc waived its indefiniteness arguments.
- “Le quatrieme petard”: R-Boc filed a summary judgment motion that undercut its instant motion to amend.
Based upon these strategic decisions, R-Boc could not reclaim its indefiniteness arguments despite the changed indefiniteness standard.