A Blog About Intellectual Property Litigation and the District of Delaware

Threading the Needle
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Motions for reconsideration are almost impossible to win, often because the legal standard requires parties to thread a very small needle. On one hand, you can't rehash arguments you already made. On the other hand, you can't raise new arguments that you could have made earlier.

Judge Connolly illustrated this catch-22 a few days ago, when the plaintiffs on the wrong end of a Markman order tried to convince the judge to reconsider one of his claim constructions. He ignored many of the plaintiffs' arguments, which "simply regurgitate the arguments [they] made in their share of the 113-page Joint Claim Construction Brief and at the Markman hearing."

The plaintiffs raised one new argument: that Judge Connolly's construction "will exclude all embodiments." But in the briefing and oral argument, the plaintiffs only argued that a small handful of embodiments would be excluded (out of at least ten), and "they offered no justification for why they failed to raise this argument in a timely fashion."

So the next time you're thinking about filing a motion for reconsideration, think carefully about how you can thread the needle. Leave out your arguments that are just reheated leftovers, and make sure you have a good explanation for your new ones.

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