United States District Court, S.D. New York
Attorneys for Plaintiff TROUTMAN SANDERS LLP By: James M.
Bollinger, Esq. Timothy P. Heaton, Esq. Phoenix S. Pak, Esq.
Katherine Harihar, Esq.
Attorneys for Defendants BLANK' ROME LLP By: Kenneth L.
Bressler, Esq. BLANK ROME LLP By: Russel T. Wong, Esq. Linh
W. SWEET U.S.D.J.
Daktronics, Inc. and Daktronics Hoist, Inc.
("Daktronics" or the "Defendants") have
moved for reconsideration of this Court's October 26,
2016 decision to deny Defendants' motion for summary
judgment on non-infringement regarding Defendants' Vortek
winch and Plaintiff Olaf Soot Design, LLC's ("Olaf
Soot" or the "Plaintiff") U.S. Patent No. 6,
520, 485 ("the M85 Patent"). For the reasons set
forth below, Defendants' motion for reconsideration is
brought this patent infringement action on June 26, 2015. On
October 26, 2016, after hearing Plaintiff's motion for
claim construction and Defendants' motion for summary
judgment, the Court construed twelve claim constructions on
the M85 Patent and denied Defendants' summary judgment
motion. (Dkt. 72.)
November 9, 2016, Defendants moved for reconsideration. (Dkt.
74.) The motion was taken on submission and marked fully
submitted on January 12, 2017. (Dkt. 87.)
Local Rule 6.3, a party moving for reconsideration "must
demonstrate that the Court overlooked controlling decisions
or factual matters that were put before it on the underlying
motion." Eisenmann v. Greene, 204 F.3d 393, 395
n.2 (2d Cir. 2000) (quotation marks and citation omitted).
"The major grounds justifying reconsideration are an
intervening change of controlling law, the availability of
new evidence, or the need to correct a clear error or prevent
manifest injustice." Virgin Atl. Airways, Ltd. v.
Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.
1992) (quotation marks and citation omitted).
standard for granting such a motion is "strict" and
should only be done when the movant "can point to
controlling decisions or data that the court
overlooked-matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court."
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d
Cir. 1995). "Such motions are not vehicles for taking a
second bite at the apple, " Rafter v. Liddle,
288 F.App'x 768, 769 (2d Cir. 2008) (internal quotation
marks and citation omitted), and "should not be granted
where the moving party seeks solely to relitigate an issue
already decided, " Shrader, 70 F.3d at 257.
Motion For Reconsideration Is Denied
their motion for reconsideration, Defendants contend that
when the Court found that a reasonable jury could find the
accused Vortek winch insubstantially different to the M85
Patent under the doctrine of equivalents, it ignored Federal
Circuit precedent and violated part of the "all elements
rule." (Defs.' Memo in Supp. at 1, Dkt. 75.) As this
issue was previously raised by Defendants in their motion
papers, considered by the Court, and has not been shown to be
clear error, Defendants' motion is denied.
"all elements rule" states that "an accused
product or process is not infringing unless it contains each
limitation of the claim, either literally or by an
equivalent." Freedman Seating Co. v. Am. Seating.
Co., 420 F.3d 1350, 1358 (Fed. Cir. 2005) (citations
omitted). This rule "constraints] when and how the
doctrine of equivalents is to be applied" by finding
that "an element of an accused product or process is
not, as a matter of law, equivalent to a limitation of the
claim invention if such a finding would entirely vitiate the
limitation." Id. (citing Warner-Jenkinson
Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29 (1997)).
To find a claim limitation vitiated is a "legal
determination that the evidence is such that no reasonable
jury could determine two elements to be equivalent."
Deere & Co. v. Bush Hog, LLC, 703 F.3d 1349,
1356 (Fed. Cir. 2012) (citing Warner-Jenkinson, 520
U.S. at 39 n.8). "[T]he vitiation test cannot be
satisfied by simply noting that an element is missing from
the claimed structure or process because the doctrine of
equivalents, by definition, recognizes that an element is
missing that must be supplied by the equivalent
substitute." Id. "[F]or example, courts
properly refuse to apply the doctrine of equivalents
'where the accused device contain[s] the antithesis of
the claimed structure.'" Id. (citation
repeatedly argued vitiation during briefing for their summary
judgment motion. (See Defs.' Memo in Supp. at
10-11, Dkt. 33; Defs.' Reply Br. at 9-10, Dkt. 51.) While
citing different cases here, it is difficult to.construe
Defendants' instant motion as anything but an attempt to
"repeat the same arguments included in previous motion
papers." Cipollaro v. NYC Transit Authority,
2015 WL 110147, at *1 (S.D.N.Y. Jan. 3, 2015) (citing