A Blog About Intellectual Property Litigation and the District of Delaware


Late last year, we posted about a decision from Judge Connolly dismissing an action by Chromadex because Chromadex had licensed the patent to another party along with the right to sublicense, making the licensee a required party, but had failed to join that party in the complaint.

To remedy the situation, Chromadex apparently executed a new license agreement to provide Chromadex with standing to bring a complaint alone. The licensee was dissolved.

Chromadex then moved for reconsideration. Judge Connolly denied the motion. He pointed out that a plaintiff cannot rely on evidence arising after the original decision to support a motion for reconsideration:

"newly discovered evidence" within the purview of Rule 60(b )(2) . . . refers to evidence of facts in existence at the time of [the decision] of which the aggrieved party was excusably ignorant[.]

(quoting Brown v. Pa. R. Co., 282 F.2d 522, 527 (3d Cir. 1960)).

He noted that two "new factual matters" identified by the plaintiffs were "not newly available evidence for purposes of the pending motion because they did not exist at the time [the Court] issued the Revised Memorandum Opinion and Orders."

Judge Connolly's decision included other grounds for denial, including that Chromadex had been in control of the events:

The matters are also not fairly characterized as "not previously obtainable" because Plaintiffs point to no fact or circumstance that precluded Healthspan from dissolving or . . . ChromaDex from executing the cited amendment before [the original opinion]. Finally, the matters are not accurately described as "discovered" because ChromaDex played a role in their creation after December 17, 2020 [the date of the original opinion].

A more commonly cited description of "new evidence," for the purposes of reargument, in Howard Hess Dental Labs. Inc. v. Dentsply Int'l, Inc., seems to leave some more room for after-arising evidence:

"new evidence," for reconsideration purposes, does not refer to evidence that a party obtains or submits to the court after an adverse ruling. Rather, new evidence in this context means evidence that a party could not earlier submit to the court because that evidence was not previously available.

602 F.3d 237, 252 (3d Cir. 2010). Regardless of which definition is used, "new evidence" is a narrow concept, and litigants should bring all available pertinent evidence to the court's attention before it issues its decision.

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