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Wi-Lan Inc. v. Sharp Electronics Corp.

United States District Court, D. Delaware

December 10, 2018

WI-LAN INC., Plaintiff,
v.
SHARP ELECTRONICS CORPORATION, Defendant. WI-LAN INC., Plaintiff,
v.
VIZIO, INC., Defendant.

          MEMORANDUM ORDER

          HONORABLE LEONARD P. STARK UNITED STATES DISTRICT JUDGE

         Pending before the Court is Plaintiff Wi-LAN Inc.'s ("Plaintiff) Motion for Reconsideration (C.A. No. 15-379 D.I. 364; C.A. No. 15-788 D.I. 281), Plaintiffs Motion for Leave to Supplement the Initial Expert Reports of David Kennedy (C.A. No. 15-379 D.I. 365; C.A. No. 15-788 D.I. 282), and Defendants Sharp Electronics Corporation and Vizio, Inc.'s ("Defendants") Motion to Strike Portions of Plaintiff s Supplemental and Rebuttal Expert Reports (C.A. No. 15-379 D.I. 374; C.A. No. 15-788 D.I. 290).[1] Having reviewed the parties' submissions (D.I. 364, 365, 368, 373, 375, 379, 384, 394), IT IS HEREBY ORDERED that, for the reasons set forth below, Plaintiffs Motion for Reconsideration is GRANTED IN PART and DENIED IN PART, Plaintiffs Motion for Leave to Supplement is DENIED, and Defendants' Motion to Strike is DENIED.[2]

         I. WI-LAN'S MOTION FOR RECONSIDERATION

         1. On June 27, 2018, Defendants filed a Motion to Preclude Portions of Plaintiffs Expert Reports on Infringement that, in relevant part, sought to strike Plaintiffs induced infringement theory and sought to strike the Tanner Report in its entirety. (D.I. 336) Following briefing (D.I. 337, 351, 354), during a teleconference on July 31, 2018 the Court granted those portions of the motion. (See D.I. 362 at 25-28, 38) The Court ruled that Plaintiffs late disclosure of its indirect infringement theories must be stricken because Plaintiff repeatedly assured both the Court and Defendants that all of its liability theories had been disclosed during the multiple reviews of Plaintiff s infringement contentions. (See Id. at 26) The Court further found that the Pennypack factors supported striking Plaintiffs indirect infringement theory. (See Id. at 26-28) Based on this ruling, the Court then determined that the Tanner Report became "largely or at least entirely irrelevant;" however, the Court also felt that Mr. Tanner's reliance on reports of other experts not in this case was not proper. (See Id. at 38) On August 14, Plaintiff moved for reconsideration of these rulings. (D.I. 364)

         2. Pursuant to Local Rule 7.1.5, motions for reconsideration should be granted only "sparingly." The decision to grant such a motion lies squarely within the discretion of the district court. See Dentsply Int'l, Inc. v. Kerr Mfg. Co., 42 F.Supp.2d 385, 419 (D. Del. 1999); Brambles USA, Inc. v. Blocker, 735 F.Supp. 1239, 1241 (D. Del. 1990). These types of motions are granted only if the Court has patently misunderstood a party, made a decision outside the adversarial issues presented by the parties, or made an error not of reasoning but of apprehension. See Shering Corp. v. Amgen, Inc., 25 F.Supp.2d 293, 295 (D. Del. 1998); Brambles, 735 F.Supp. at 1241. "A motion for reconsideration is not properly grounded on a request that a court rethink a decision already made." Smith v. Meyers, 2009 WL 5195928, at *1 (D. Del. Dec. 30, 2009); see also Glendon Energy Co. v. Borough of Glendon, 836 F.Supp. 1109, 1122 (E.D. Pa. 1993). It is not an opportunity to "accomplish repetition of arguments that were or should have been presented to the court previously." Karr v. Castle, 768 F.Supp. 1087, 1093 (D. Del. 1991). A motion for reconsideration may generally be granted only if the movant can show at least one of the following: (i) there has been an intervening change in controlling law; (ii) the availability of new evidence not available when the court made its decision; or (iii) there is a need to correct a clear error of law or fact to prevent manifest injustice. See Max's Seafood Cafe by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). However, in no instance should reconsideration be granted if it would not result in amendment of an order. See Schering, 25 F.Supp.2d at 295.

         3. With respect to the ruling striking Plaintiffs indirect infringement theory, Plaintiff substantially restates its prior arguments that were already considered and rejected by this Court, adding that the Court should have applied the Poulis factors rather than the Pennypack factors. (See D.I. 364 at 8-10) Since Plaintiff relied on the Pennypack factors in its initial motion (see D.I. 351 at 4; D.I. 354 at 2), the Court will not reconsider its prior decision based on a standard Plaintiff could have asked the Court to have applied initially.

         4. With respect to the ruling relating to the Tanner Report, Plaintiff argues that the Court's understanding that its order striking the indirect infringement theories renders the Tanner Report irrelevant is incorrect. Plaintiff argues that Mr. Tanner did not opine on indirect infringement, but rather "demonstrate[d] the extent of use of the methods of the '654 patent by the accused products," which is relevant to damages for direct infringement, observing that the only expert who relied on Mr. Tanner's opinions was Plaintiffs damages expert, Dr. Kennedy. (D.I. 364 at 4-5) Defendants argue that Plaintiffs own citation to Dr. Kennedy's report shows that he "relied on the Tanner Report for his opinions that users likely infringe, not for damages." (D.I. 368 at 7) Based on the limited excerpts of Mr. Kennedy's report provided to the Court, it appears that Mr. Kennedy did, indeed, rely on Mr. Tanner's opinions for the extent of use of the patented invention, i.e., the ubiquity of the invention, which is relevant to damages.

         Accordingly, the Court will amend its prior ruling as follows: the portions of the Tanner Report that cite to and rely on the Wallace and Frankel Reports remain stricken for the reasons stated during the teleconference (see D.I. 362 at 38), but the remainder of the Tanner Report is not stricken from this case.

         II. WI-LAN'S MOTION FOR LEAVE TO SUPPLEMENT THE INITIAL EXPERT REPORTS OF DAVID KENNEDY

         5. On August 17, 2018, Plaintiff moved for leave to supplement the initial expert reports on damages of David Kennedy, in light of the Court's July 31 Order striking the initial Tanner Report. (D.I. 365 at 1) As Plaintiff notes, "Mr. Kennedy's reports were submitted before the Court precluded Mr. Tanner's report." (Id. at 5) With portions of the Tanner Report reinstated pursuant to the Court's ruling above, the request to supplement is moot.

         III. DEFENDANTS' MOTION TO STRIKE PORTIONS OF PLAINTIFF'S SUPPLEMENTAL AND REBUTTAL EXPERT REPORTS

         6. On September 10, 2018, Defendants moved to strike Section IV of Ionut Mirel's Supplemental Expert Report and Section VIII.D.7 of Craig Tanner's Rebuttal Expert Report, on two grounds. (See D.I. 374) First, Defendants argue that the two reports improperly circumvent the Court's July 31, 2018 Order striking the initial Tanner Report. Given the Court's ruling above, and the fact that the two reports do not rely on the Wallace or Frankel Reports, this argument is now moot.

         7. Second, Defendants argue that the Mirel Supplemental Report improperly contains new opinions that are not proper supplementation under the Court's July 30 Order, which limited the supplemental report to "(i) discovery produced by Defendants after June 15, 2018, and (ii) additional discovery ordered by the Court during the June 15, 2018 Discovery Hearing and in C.A. No. 15-379, D.I. 344." (D.I. 360 at 2 n.1) Plaintiff contends that Section IV of the Mirel Supplemental Report, which is entitled "Interlaced Video Sources," provides an "evidence-based description of the [four] sources from which the accused televisions receive interlaced video." (D.I. 384 at 2) Plaintiff further contends that these opinions demonstrate Defendants' direct infringement, particularly through "testing of the accused television[s] using one or more of the discussed interlaced video sources." (Id.) The discovery produced by Defendants after June 15, 2018 included evidence of testing. (See D.I. 344; D.I. 384 at 4)

         Plaintiff argues that it became necessary for Dr. Mirel to explain the interlaced video sources in order to arrive at his ultimate conclusion that the testing constitutes direct infringement, because Defendants had not described the format of the video signals used in their testing. (See D.I. 384 at 3-4) Defendants argue that Dr. Mirel cites evidence that was available prior to June 15, 2018, but they fail to respond to Plaintiffs explanation as to how citation to this earlier-produced evidence only became necessary after ...


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