A Blog About Intellectual Property Litigation and the District of Delaware

Entries for tag: Reconsideration

It will come as no surprise to our readers that I was an insufferable know-it-all as a child (not anymore though, no-sir-ee). My parents were thus inclined to send me away to visit my grandparents for a couple weeks each summer. The idea was that I would tire myself out and be less bothersome when I returned.

It was a pretty cool place all told, and I wiled away many an hour catching snakes and throwing rocks at things. There wasn't much to do when it got dark, however, except to read over the mountain of old Readers' Digests.

(Eds. note -- what a weird concept "it's a magazine for people who read! Next lets get cooking on that food …

Local Rule 7.1.5 governs motions for reargument, sometimes styled as motions for “reconsideration.” As we’ve noted, the deadline to move for reargument or reconsideration can be easy to miss. The deadline is just 14 days after the order or opinion, and there are no CMECF reminders to flag it for counsel.

What Is a motion for reargument?

A request for “clarification” of the Court’s prior order may be interpreted as a motion for reargument/reconsideration. But a motion for reargument is not a do-over. In fact, you cannot rehash arguments you already made—and you cannot make new arguments you could have raised earlier.

Mick Haupt, Unsplash

The scope of a motion for reargument is very narrow, and must show at …

Judge Andrews issued an interesting opinion last week, in another case that breaks new ground on reconsideration. The (extremely) abridged and expurgated procedural history in MirTech, Inc. et al v. AgroFresh, Inc., C.A. No. 20-1170-RGA (D. Del. June 14, 2023) (Mem. Op.) is as follows:

  • Agrofresh moved for summary judgment on one of its counterclaims alleging breach of a settlement agreement requiring the plaintiffs to assign them several foreign patent applications
  • The plaintiffs responded by arguing that Agrofresh had actually dropped most of these claims. In support, they cited an RFA objection where Agrofresh argued that "[n]o claim or defense at issue in this lawsuit . . . relates to [the allegedly dropped applications]."
  • The Court denied …

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 - …

"Sure, I had my LLC sue a bunch of people in Delaware, but I didn't think the Court would actually make me GO there." Andrew Russell, CC BY 2.0

I guess our post about the Mavexar hearing last week was remiss in failing to talk about the "mansplaining brief." I've had a couple of people ask me about it. Here is the background and some quick thoughts.

Chief Judge Connolly Orders Mavexar-LLC's Sole Member to Testify In Person

The short version of the leadup: Mavexar is an entity that creates LLCs to assert patents against tech companies for quick settlements, often in Delaware. The LLCs take all of the risk, and Mavexar keeps 90-95% of the profits while hiding its …

Pepi Stojanovski, Unsplash

As we've recognized before, motions for reconsideration can be tough.

First, the deadline to move for reargument or reconsideration is fairly easy to miss. It's just 14 days after the order or opinion, and there are no CMECF reminders to flag it for counsel.

Second, the standard for reconsideration is fairly narrow. As we've discussed, you can't rehash arguments you already made—but you also can't make new arguments you could have raised earlier.

What does that leave? New arguments that you couldn't have raised earlier. And those typically result from something unanticipated in the Court's ruling or order.

This week we had a good example of a worthwhile motion for reconsideration. In …

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 …

Piper Saratoga Plane
Alan Lebeda, CC BY 2.0

Last week, Judge Andrews granted a motion for reargument in a products liability diversity action, permitting further argument on summary judgment after the Court had previously ended the case by finding against plaintiff at summary judgment.

In its original opinion, nearly a year ago, the Court found that a federal statute that limits products liability for aircraft parts manufacturers blocked recovery here, and entered a judgment for defendant on all claims.

Plaintiff's motion for reargument asserted that, in addition to bringing actions against defendant as a "manufacturer," it had asserted claims based on the defendant's role as a "rebuilder and seller" of airline parts, and then detailed an argument based on the statutory language, …

Light Bulb
Alessandro Bianchi, Unsplash

While motions for reconsideration are frequently filed, they are not frequently granted. Typically they are shut down pretty easily. The rules put the moving party in a box, because parties can neither repeat arguments from their brief nor offer new arguments.

These motions are sometimes granted, though, and Judge Connolly granted one such motion late last month. I thought it would be interesting to look at what worked.

What happened?

The Court had originally granted a motion to exclude expert testimony from a defendant's infringement expert, on the grounds that the expert had testified that the presence of additional structure in a means-plus-function claim results in non-infringement.

We discussed this opinion at the time, pointing out that violating a well-established rule like that one is a great way to get an expert opinion excluded. ...