I've read it four times now, and I'm pretty sure the title of this post is correct. But for those who want to follow the byzantine history of the recently (and one must imagine finally) denied motion for reconsideration in PACT XPP Schweiz AG v. Intel Corporation, C.A. No. 19-1006-JDW (D. Del. June 9, 2023), the current state of play is:
- March 24 - the Court Grants summary judgment of noninfringement of one of the patents in suit
- March 29 - the plaintiff moves for reconsideration
- April 17 - The Court denies the motion for reconsideration
- May 10 - as part of a larger brief, Plaintiff requests leave to file a second motion for reconsideration
- May 17 - the Court denied the motion for leave as moot, noting "as with its initial reconsideration motion, PACT seems to be trying to rewrite history."
- June 2 - the plaintiff files its second motion for reconsideration anyway
- June 9 - The Court denies the new motion to reconsider
Motions to reconsider are tough in the first place, but you do see the occasional success story. A second-order motion to reconsider, however, strikes me as a bridge too far. A bit of digging didn't turn up any cases where the Court had granted one (please drop me a line if you're aware of any). Honestly, I don't expect to ever see it happen.
My pessimism on this point was only Bolstered by Judge Wolson's denial; which issued before the defendant had even responded and featured some pretty harsh criticisms:
In litigation, lawyers argue, and judges decide. Oftentimes, the lawyers (and their clients) are unhappy with the way that a judge decides an issue. But when lawyers disagree with a judge, the remedy is not to tell the judge how “strenuously” they feel about their position. That approach didn’t work for Lt. Cdr. JoAnne Galloway because that’s not “how it’s done.” Unfortunately, the lawyers representing PACT XPP Schwiez AG must not like courtroom dramas because they have not learned that lesson. They are unhappy with my summary judgment decision, and they want me to know it. So, for the third time, they have asked me to revisit the ruling. This try fairs no better than the last two. If anything, this latest attempt is worse because PACT’s effort has become dilatory. It’s time to stop. If PACT wants to appeal my ruling, it will have an opportunity to do so at the end of the case. It cannot keep fighting a rearguard action to revisit decisions I’ve made, particularly when its constant attempts to do so ignore everything I’ve said about the reason I granted summary judgment in the first place . . .
Repeated motions for reconsideration that attempt to undo its mistakes are improper, futile, and dilatory. PACT will have a chance to appeal when there is a final judgment in this case, and maybe it will persuade the Federal Circuit that it did enough to preserve the issue. It’s far past time that it stops trying to persuade me of that fact.
Id. at 1, 6.
I think its safe to say at this point that there will be no third motion for reconsideration.
Aside from the merits, I just wanted to call out the "A Few Good Men" reference (which is explained in a footnote for the uncouth reader). There's a quite a few of these pop culture call outs in Judge Wolson's opinions. My personal favorite so far is from BoardActive Corp. v. Foursquare Labs, Inc., C.A. No. 22-597-JDW (D. Del. Mar. 21, 2023):
Not everyone is as receptive to a billboard advertisement as Homer Simpson on New Billboard Day.
We at IP/DE have to read quite a lot of opinions for the blog, and little touches like this make it a bit easier.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
