A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: reconsideration

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. ...