Motion to Reconsider

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Neurografix v. Brainlab, Inc., No. 12 C 6075, Slip Op. (N.D. Ill. Feb. 26, 2020) (Kennelly, J.)

Judge Kennelly denied plaintiffs’ (collectively “Neurografix”) motion for reconsideration of the Court’s order granting defendants (collectively “Brainlab”) summary judgment on lost profits in this patent case tractographies.

Fed. R. Civ. P. 54(b) allows a court to reconsider…

Marshall Feature Recognition, LLC v. Wendy’s Int’l., Inc., No. 14 C 865, Slip Op. (N.D. Ill. Nov. 16, 16) (Coleman, J.).

Judge Coleman denied plaintiff Marshall Feature Recognition’s (“MFR”) Fed. R. Civ. P. 59 motion for new trial in this patent case involving QR codes.

As an initial matter, a motion for new trial…

Balshe LLC v. Ross, No. 08 C 3256, Slip Op. (N.D. Ill. Jul. 7, 2011) (Zagel, J.).
Judge Zagel granted in part defendants’ motion to reconsider the Court’s prior ruling regarding the parties’ settlement agreement in this case regarding a patent to a system of pooling life insurance policies to create a predictable income stream. Pursuant to the agreement, defendants were to transfer their respective interests in the patent to newly-created, third party Institutional Pooled Benefits LLC (“IPB”). Defendants refused to transfer their rights, arguing that provisions of IPB’s operating agreement were in tension with the agreement.
The Court held that, while the agreement did not require that defendants sign IPB’s operating agreement, terms of the operating agreement did require defendants’ signature. Those signatures, however, were mere formalities.
Defendants’ argument that they did not agree to naming the Newco contemplated by the agreement IPB was no different than the argument in defendants’ original papers and was, therefore, improper as a motion for reconsideration.
The Court denied defendants’ request, in its reply brief, for additional relief. Defendants were limited to the relief sought in their motion to reconsider.
Normally, courts do not consider new evidence presented in a reply. But in light of the particular circumstances of this case, the Court considered defendants’ new evidence offered in their reply.
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Continue Reading Court Reconsiders Ruling re Patent Settlement Agreement

Eva’s Bridal Ltd. v. Halanick Enters., Inc., No. 07 C 1668, Slip Op. (N.D. Ill. Aug. 4, 2010) (Darrah, J.)
Judge Darrah granted in part defendants’ (collectively “Halanick”) motion to reconsider the Court’s summary judgment decisions in this trademark dispute. Initially, the Court overturned its decision that Sarniti could not file a proper claim in light of the Court’s earlier decision allowing the same claim.
The Court also reversed its decision regarding plaintiffs’ trademark claims. Plaintiffs exercised new control over defendants’ use of the marks. Proof of plaintiff paying sales tax and keeping tabs on sales were insufficient. As such, plaintiffs’ license is a “naked license”.
Finally, the Court declined to exercise supplemental jurisdiction over the state law claims.
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Continue Reading Proof of Paying Sales Tax and Tracking Sales are not Enough Control for Trademark Licensing

Von Holdt v. A-1 Tool, No. 04 C 4123, Slip Op. (N.D. Ill. Aug. 3, 2010) (Manning, J.)
Judge Manning granted in part plaintiffs’ motion to reconsider the Court’s opinion granting defendants summary judgment on plaintiffs’ patent claims and dismissing plaintiffs’ related state law claims for lack of supplemental jurisdiction.
The Court reversed its supplemental jurisdiction decision because Illinois law barred the refiling more than once of a claim that was voluntarily dismissed. Presented with the “new” fact that plaintiffs had previously filed suit in state court, the Court vacated its prior decision and ordered plaintiffs to brief whether the Court should retain jurisdiction over the state law claims.
The Court, however, did not reverse its summary judgment of noninfringement. On that Plaintiffs agreements were a “rehash” of its prior agreements.
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Continue Reading Court Reconsiders Supplemental Jurisdiction to Assert Tort Claims

Wm. Wrigley Jr. Company v. Cadbury Adams USA LLC, Case No. 04 C 346, Slip Op. (N.D. Ill. Mar. 30, 2010) (Dow, Jr.).
Judge Dow denied plaintiff Wrigley’s motion for reconsideration of the Court’s opinion granting defendant Cadbury summary judgment of invalidity based upon anticipation and obviousness in this patent case regarding menthol-enhanced chewing gum. Because Wrigley originally only opposed the anticipation arguments by claiming the prior art was not enabling, the Court refused to consider any arguments unrelated to enablement. And the fact that the Court did not specifically address each of the seven undue experimentation factors in denying Wrigley’s argument against invalidity was irrelevant. The Court was not required to consider every factor. And Wrigley did not specifically tie any of its original arguments to the factors. Finally, Wrigley never provided “meaningful evidence” showing the amount of experimentation that would have been required. The Court did not address Wrigley’s arguments regarding obviousness because they sough to “re-hash rejected arguments.”
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Continue Reading Summary Judgment Arguments Not Made Originally Not Reclaimable

Ho v. Taflove, No. 07 C 4305, Slip Op. (N.D. Ill. Apr. 9, 2010 (Bucklo, J.)
Judge Bucklo denied plaintiffs’ motion for reconsideration of the Court’s order granting defendants summary judgment as to plaintiffs’ Copyrights, Lanham Act and related state law claims in this dispute over whether defendants took plaintiffs’ mathematical model (the “Model”). As an initial matter, the Court noted that the Federal Rules of Civil Procedure do not provide for “motions to reconsider.” Rather, parties file either a Rule 59(e) motion to alter or amend judgment (within 28 days of the judgment) or a Rule 60(b) motion for relief from judgment (within a “reasonable time”). The substance of the motion determines whether it is heard pursuant to Rule 59(e) or Rule 60(b). Plaintiffs’ motion was brought pursuant to Rule 60(b), but the Court treated it as a Rule 59(e) motion because it sought to alter the judgment, not for relief from it.
A Rule 59(e) motion requires newly discovered evidence or manifest errors of law. Plaintiffs’ motion as to their state law conversion, copyright and Lanham Act claims relied upon additional facts that were available during the initial briefing, but not raised at that time. The Court, therefore, did not consider the evidence and the plaintiffs’ arguments were denied.
As to the Court’s decision that the Model was not copyrightable as a mathematical formula pursuant to §102(b) of the Copyright Act, plaintiffs provided no convincing authority showing that it was copyrightable. And plaintiffs provided not even a single example of an alternate expression of the Model to satisfy the merger doctrine.
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Continue Reading Court Will Not Amend Summary Judgment Based Upon “New” Evidence

Easypower Corp. v. Alden Corp., __ F. Supp.2d __, 2007 WL 4191837 (N.D.Ill. Nov. 21, 2007) (Denlow, Mag. J.).
Judge Denlow denied defendant Alden Corp.’s (“Alden”) motion for reconsideration of the Court’s construction of “acute angle relative to the axis.” The Court’s construction required an angle less than 90°, and further required that if there were two or more angles, any two angles together be greater than 90°. Alden argued that the requirement regarding two or more angles was improperly read into the claim without support in the specification. But the Court held that the limitation was required based upon the clear language of the specification. Additionally, the Court noted that the parties were given ample opportunities to argue the issue, both on the papers and during the Markman hearing.
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Continue Reading Court Denies Claim Construction Reconsideration Motion

Abbott Labs. v. Sandoz, Inc., No. 05 C 5373, 2007 WL 1549498 (N.D. Ill. May 24, 2007) (Coar, J.).
Judge Coar denied defendant Sandoz, Inc.’s (“Sandoz”) motion to stay the Court’s preliminary injunction pending appeal to the Federal Circuit pursuant to Fed. R. Civ. P. 62(c). The Court previously granted plaintiff Abbott’s motion for a preliminary injunction (you can read more about that decision and related cases in the Blog’s archives). The PI enjoined defendant Sandoz from selling a generic version of Abbott’s patented extended release antibiotic (clarithromycin, an erythromycin derivative which Abbott markets as Biaxin XL). Sandoz argued that the PI should be stayed pending appeal because of conflicting Federal Circuit law regarding the Court’s claim construction and because of the Supreme Court’s KSR decision.
First, Sandoz argued that two different Federal Circuit panels had issued differing rulings construing the claims at issue. Judge Coar rejected this argument because the construction relied upon in the PI ruling was the Federal Circuit’s second, broader claim construction. The Court explained that the “only rational assumption” was that the second panel was aware of the constructions in the first, but relied upon something different in the record or identified a fact missed by the first panel. Further, the Court predicted that the Federal Circuit would not retreat from its second opinion to its first, prior opinion.
Second, the Court held that the KSR decision did not change its analysis of Sandoz’s likelihood of success on its obviousness argument. The Court provided a detailed explanation of KSR and its reasoning, but differentiated the current case because the Court held that one of the limitations in the Abbott claims did not exist in Sandoz’s cited combination of prior art references. Because the references did not disclose one of the elements of the claims, whether or not the Court used a strict application of the Federal Circuit’s teaching, suggestion or motivation test did not change the outcome of its analysis. Both the Federal Circuit’s and the Supreme Court’s standards required that all elements be disclosed by the combined prior art references.
Finally, the Court held that Sandoz had not provided sufficient evidence that it would be irreparably harmed. Sandoz argued that if it could not enter the market at the same time as other generics, which are not subject to PI’s, pharmacists would be reluctant to later restock their shelves with Sandoz’s generic version of the drug. But the Court reasoned that the lure of generics is their prices, not their brand recognition, so Sandoz should have no trouble re-entering the market at a later date should it prevail.
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Continue Reading Neither Federal Circuit Split Nor KSR Warranted Stay of a Preliminary Injunction Pending Appeal