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Comcast Corp. v. Rovi Corp.

United States District Court, S.D. New York

May 15, 2017

COMCAST CORPORATION; COMCAST CABLE COMMUNICATIONS, LLC; COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC; COMCAST OF HOUSTON, LLC; COMCAST BUSINESS COMMUNICATIONS, LLC; COMCAST HOLDINGS CORPORATION; COMCAST SHARED SERVICES, LLC; and COMCAST STB SOFTWARE I, LLC, Plaintiffs,
v.
ROVI CORPORATION; ROVI GUIDES, INC.; ROVI TECHNOLOGIES CORP.; and VEVEO, INC., Defendants.

          OPINION AND ORDER

          J. PAUL OETKEN United States District Judge.

         On June 1, 2016, Comcast[1] filed a motion for preliminary injunction, seeking to enjoin Rovi[2] from continuing to prosecute their patent infringement claims against Plaintiffs in the Eastern District of Texas and before the International Trade Commission (“ITC”). (See Dkt. No. 25). On August 16, 2016, the Court denied Plaintiffs' motion for a preliminary injunction, granted Defendants' motion to the extent that it requested a stay, and denied as moot Plaintiffs' letter motion to stay the ITC proceedings. (See Dkt. No. 75.) In an Opinion and Order dated December 14, 2016, the Court further denied Comcast's motion to enjoin Rovi from prosecuting its ITC action. See Comcast Corp. v. Rovi Corp., No. 16 Civ. 3852, 2016 WL 7235802 (S.D.N.Y. Dec. 14, 2016).

         Comcast has moved for reconsideration of the December Order pursuant to Local Civil Rule 6.3. (Dkt. No. 90.) For the reasons that follow, the motion is denied.

         In addition, on October 25, 2016, when the United States District Court for the Eastern District of Texas granted Plaintiffs' motions to change venue to this Court (Dkt. No. 79-1), that court had before it two fully briefed motions to stay, Rovi Guides, Inc. v. Comcast Corp., No. 16 Civ. 9278 (S.D.N.Y. June 9, 2016), Dkt. Nos. 108, 109. For the reasons that follow, those motions are also denied.

         I. Motion to Reconsider

         A. Legal Standard

          “A motion for reconsideration is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.” Indergit v. Rite Aid Corp., 52 F.Supp.3d 522, 523 (S.D.N.Y. 2014) (internal quotation marks omitted) (quoting Drapkin v. Mafco Consol. Grp., Inc., 818 F.Supp.2d 678, 695 (S.D.N.Y. 2011)). “To prevail, the movant must demonstrate either (i) an intervening change in controlling law; (ii) the availability of new evidence; or (iii) the need to correct clear error or prevent manifest injustice.” Id. (quoting Jacob v. Duane Reade, Inc., 293 F.R.D. 578, 580-81 (S.D.N.Y. 2013)). “[T]he movant cannot rely upon facts, issues, or arguments that were previously available but not presented to the court, or reargue issues that have already been considered.” Id. A motion for reconsideration is not “a second bite at the apple.” Goonan v. Fed. Reserve Bank of N.Y., No. 12 Civ. 3859, 2013 WL 1386933, *2 (S.D.N.Y. Apr. 5, 2013).

         B. Discussion

         Familiarity with the underlying facts of this case, as set forth in the Court's December 14, 2016, Opinion and Order, is presumed. In relevant part, the Court determined that the forum selection clause of the expired patent license agreement (the “Patent Agreement”) did not cover the present action. (Dkt. No. 84 at 7.) The Court reasoned that, while patent infringement claims do arise from license agreements, the present action did not trigger the forum-selection clause of the Patent Agreement because Rovi is seeking relief for allegedly infringing activity that occurred only after the expiration of the agreement. (Id. (citing Texas Instruments Inc. v. Tessera, Inc., 231 F.3d 1325, 1328 (Fed. Cir. 2000); Innovative Display Techs. LLC v. Microsoft Corp., No. 13 Civ. 783, 2014 WL 2757541 (E.D. Tex. June 17, 2014)).)

         Comcast now requests that the Court reconsider its holding in light of statements made by Rovi before the ITC. Comcast argues that these statements demonstrate that, despite Rovi's prior assurances to this Court, Rovi is indeed seeking relief as to alleged unfair acts that occurred before the expiration of the Patent Agreement. (See Dkt. No. 91.) If true, according to Comcast, the forum-selection clause in the Patent Agreement is triggered and the Court should enjoin the ITC action. (See Dkt. No. 91 at 11-12.)

         As an initial matter, the statements made by Rovi in the ITC proceedings were not available to the Court when it issued its December 14, 2016, order. As such, they are properly considered on a motion for reconsideration.[3] See Indergit, 52 F.Supp.3d at 523.

         In particular, Comcast points to two aspects of the now-developed ITC record that it argues undermines Rovi's previous assertions that it is seeking only post-expiration relief: (1) Comcast's alleged stockpiling of infringing products while the Patent Agreement was in effect, and (2) Comcast's testing of infringing products after importation while the Patent Agreement was in effect.

         First, in Rovi's pre-hearing brief filed with the ITC, Rovi claimed that Comcast “import[ed] and stockpile[d] . . . products . . . under license” so that it could “distribute those infringing imported products with impunity immediately after” the LDA expired, and that Comcast “buil[t] up its inventory with imported products under license” that it is “leas[ing] . . . after the license has expired.” (Dkt. No. 94-1 at 3, 9.) Comcast now argues that Rovi is seeking relief in the ITC for this “stockpiling, ” which took place before the expiration of the Patent Agreement, thus triggering the forum-selection clause. Indeed, Comcast argues that the ITC does not have jurisdiction over Rovi's claims unless Rovi's claims are based on the unfair act of importing and stockpiling the allegedly infringing products. (Dkt. No. 91 at 7.)

         Second, Rovi represented to the ITC that Comcast's testing of the allegedly infringing products upon receipt infringes the asserted patents. (See Id. at 4.) Comcast argues that, because Comcast had not acquired any allegedly infringing products since three months prior to the expiration of the Patent Agreement, any testing activity must have occurred while the Patent Agreement was still in effect. (Id. at 10.) Thus, Comcast ...


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