United States District Court, D. Delaware
before me is Plaintiffs Motion for Reconsideration of the
Court's May 21, 2018 Memorandum Opinion regarding
Defendant's Motion for Summary Judgment on the License
Issue (D.I. 414) and related briefing (D.I. 428,
reasons that follow, IT IS HEREBY ORDERED
THAT Plaintiffs Motion for Leave to File a Reply
Brief in Support of its Motion for Reconsideration (D.I. 438)
is GRANTED; and Plaintiffs Motion for Reconsideration (D.I.
414) is DENIED, as to the new evidence, and
GRANTED, as to the May 21, 2018 Memorandum Opinion. (D.I.
398). Plaintiffs Motion is also DENIED, as
to overbreadth, because there is nothing to reconsider. As
Defendant notes, "The Court's ruling says nothing
about Broadcom chips, and does not suggest or imply that
those chips are licensed," and Defendant "does not
contend that the Broadcom chips are licensed under the
Lantiq/Aware license." (D.I. 428 at 10).
purpose of a motion for reconsideration is to "correct
manifest errors of law or fact or to present newly discovered
evidence." Max's Seafood Cafe ex rel. Lou-Ann,
Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
"A proper Rule 59(e) motion . . . must rely on one of
three grounds: (1) an intervening change in law; (2) the
availability of new evidence; or (3) the need to correct
clear error of law or prevent manifest injustice."
Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir.
argues, "Newly discovered evidence indicates . .. that
the Accused Products that use a Lantiq chipset, use an
unlicensed Adtran-created chip to provide the core DSL
bonding functionality claimed by the Family 2 patents."
(D.I. 414 at 1-2).
September 1, 2016 response to Plaintiffs request to produce
source code, Defendant stated, "Source Code directed to
'DSL functionality' is chip-level Source Code"
that should "be obtained from such third party xDSL chip
manufacturers[.]" (D.I. 415 at ¶¶ 28-29).
Similarly, in a September 29, 2015 response to Plaintiffs
Interrogatory No. 2, which asked Defendant, "For each
Accused Product, state and explain with particularity each
reason why Defendant contends that such Accused Product does
not infringe .. .," Defendant stated,
Further, [Plaintiffs] allegations regarding infringement of
the Patents-in-Suit . . . are directed towards internal
structures, methods, processes, functions, and capabilities
of DSL transceivers, which are not designed or manufactured
by [Defendant] and the internal structures, methods,
processes, functions, and capabilities of which are not known
or largely not known by [Defendant].
(D.I. 415 at ¶ 25) (emphasis omitted). Additionally, in
its September 2015 non-infringement contentions for claim 17
of the '881 patent, Defendant asserted that Defendant
"ha[d] no information in its possession, custody, or
control regarding whether [the 'plurality of bonded
transceivers'] limitation is met by any accused ...
product." (Id. at ¶ 26).
February 26, 2018, Plaintiffs counsel asked Defendant's
counsel, "whether [Defendant] will produce, in
accordance with the provisions of the Protective Order, the
requested source code." (D.I. 415 at ¶ 30). The
parties then held a meet and confer on March 7, 2018, where
Defendant informed Plaintiff for the first time that
Defendant had in its possession Defendant-created source code
"related to the DSL bonding functionality of the Accused
Products." (Id. at ¶ 32).
May 8, 2018, [Defendant] produced a listing of code required
by the Protective Order that identified over 100 source code
files." (D.I. 414 at 3 (citing D.I. 415 at ¶ 41)).
As a result, Plaintiff argues that it only learned on May 11,
2018, that Plaintiff "created its own code to perform
the accused DSL bonding functions." (D.I. 414 at 3
(citing D.I. 416 at ¶ 6)). More specifically, Plaintiff
says it learned that "ADTRAN-created source code is used
to program a field programmable gate array ('FPGA')
chip to provide 'DSL bonding' capability," and
"[n]either the FPGA nor the DSL Bonding Code used to
program is made or sold by Lantiq." (Id.).
Plaintiff argues that this information means Defendant's
"Accused Products are not 'licensed' to at least
the Family 2 patents." (D.I. 414 at 3).
Defendant argues that Plaintiff "first hinted at"
its theory "more than two years ago in May 2016" by
asserting that the Accused Products were licensed "only
to the extent" that the "functionality [is]
provided by such Lantiq chipset." (D.I. 428 at 2)
(emphasis omitted). Thus, says Defendant, Plaintiff waived
the argument that the Family 2 patents are not licensed
because the Lantiq chips do not provide the infringing
functionality. (Id.). Defendant also argues,
"Since March 2015, [Defendant] has produced numerous
documents showing that its products perform bonding with the
involvement of FPGAs." (D.I. 428 at 3 (citing D.I.
431-1, Exh. 3; D.I. 431-2, Exh. 4-8)). Defendant does not
argue that these documents show FPGAs programmed with
Defendant-created source code. (See generally D.I.
does not account for the nearly-18-month gap between
Defendant's September 1, 2016 communication, and
Plaintiffs February 26, 2018 communication asserting for the
first time that Defendant's response was deficient. Even
though Plaintiff did not receive access to the "new
evidence" until May 8, 2018, that delay is primarily the
result of Plaintiff's own actions. The time to claim
that Plaintiffs relevant discovery production has not been
provided is before the Court rules, not after. I will
therefore DENY Plaintiffs Motion for
Reconsideration (D.I. 414), as to the "new
May 21 Summary ...