PACT XPP Schweiz AG v. Intel Corporation

Filing 417

MEMORANDUM Signed by Judge Joshua D. Wolson on 6/9/2023. (mpb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

PACT XPP SCHWEIZ AG,

Case No. 1:19-cv-01006-JDW

Plaintiff,
v.
INTEL CORPORATION,

Defendant.
MEMORANDUM
In litigation, lawyers argue, and judges decide. Oftentimes, the lawyers (and their
clients) are unhappy with the way that a judge decides an issue. But when lawyers disagree
with a judge, the remedy is not to tell the judge how “strenuously” they feel about their
position. That approach didn’t work for Lt. Cdr. JoAnne Galloway because that’s not “how
it’s done.” 1 Unfortunately, the lawyers representing PACT XPP Schwiez AG must not like
courtroom dramas because they have not learned that lesson. They are unhappy with my
summary judgment decision, and they want me to know it. So, for the third time, they
have asked me to revisit the ruling. This try fairs no better than the last two.
If anything, this latest attempt is worse because PACT’s effort has become dilatory.
It’s time to stop. If PACT wants to appeal my ruling, it will have an opportunity to do so at
the end of the case. It cannot keep fighting a rearguard action to revisit decisions I’ve

1

A Few Good Men (Castle Rock Entertainment 1992).

made, particularly when its constant attempts to do so ignore everything I’ve said about
the reason I granted summary judgment in the first place.
I.

PROCEDRAL HISTORY
On May 30, 2019, PACT filed a complaint asserting that Intel Corp. infringed 12 of

its patents, including the ’301 Patent. I issued a summary judgment opinion on March 24,
2023, which granted Intel summary judgment of non-infringement of the ‘301 Patent. On
March 29, 2023, PACT filed a Motion For Reconsideration of my summary judgment
opinion regarding the ‘301 Patent. In its Motion, PACT argued that its expert Dr. Conte
offered evidence that “Intel’s accused chips … perform sequential data processing.” (D.I.
402 at 2.) I denied the reconsideration motion on April 17, 2023. In my ruling, I explained
that PACT didn’t cite Dr. Conte’s report or any other evidence in response to Intel’s
statement of facts to create a factual dispute about whether Intel’s chips process data or
only sequences of instructions. I also explained that Dr. Conte’s report doesn’t say that
Intel’s chips process data, only that they are capable of processing data, and that was not
how PACT described Dr. Conte’s report to me. That is, I found PACT’s description of Dr.
Conte’s report misleading (a fact that I now suspect was intentional).
On April 26, 2023, Intel moved to stay this case pending ex parte review of the only
remaining patent. In response, on May 10, 2023, PACT filed a Conditional Cross-Motion
For Entry Of Final Judgment Of Noninfringement. In that Cross-Motion, PACT asked for
leave to submit a second motion for reconsideration. PACT explained that it wanted to

2

seek reconsideration to address my holding that PACT had to show that Intel’s chips
process data. (D.I. 410 at 11-12.) On May 15, 2023, I denied both Intel’s Motion To Stay
and PACT’s Cross-Motion. In my ruling, I explained that (a) in rejecting PACT’s first
reconsideration motion, I considered the evidence that PACT had put forward in response
to Intel’s summary judgment motion and (b) if PACT had other evidence available to it (or
even in the record), but did not cite it in response to Intel’s statement of facts, then I did
not have to consider it in ruling on summary judgment. (D.I. 414 at ¶ 4 (citing Fed. R. Civ.
P. 56(c)(1)(A)).) I also explained that “PACT should not think I will allow it to rewrite history
in the future.” (Id.)
On June 2, 2023, PACT filed this second Motion For Reconsideration. As it did with
its first Motion For Reconsideration, PACT argues that Dr. Conte’s report creates a genuine
issue of fact. Incredibly, there’s nothing in PACT’s Motion to explain how this Motion is
different from the first.
II.

LEGAL STANDARD
PACT invokes Federal Rule of Civil Procedure 59 in its Motion, but that rule only

applies to a motion to alter or amend a judgment. Because I have only granted partial
summary judgment tin this case, I have not entered judgment, and Rule 59 does not apply.
Instead, I treat PACT’s Motion like any other motion to reconsider an interlocutory order.
A court may reconsider a prior ruling if the moving party shows: “(1) an intervening change
in the controlling law, (2) the availability of new evidence that was not available when the

3

court issued its order, or (3) the need to correct a clear error of law or fact or to prevent
manifest injustice.” U.S. ex rel Schumann v. Astrazeneca Pharmaceuticals L.P., 769 F.3d 837,
848-49 (3d Cir. 2014). Courts should grant reconsideration “sparingly.” United States v.

Cephalon, Inc., 159 F. Supp. 3d 550, 555 (E.D. Pa. 2016). A litigant may not use a motion
for reconsideration to get a “second bite at the apple.” Bhatnagar v. Surrendra Overseas

Ltd., 52 F.3d 1220, 1231 (3d Cir. 1995).
III.

DISCUSSION
I did not invite PACT to file a second motion for reconsideration. PACT alluded to

the fact it might do so in its Conditional Cross-Motion For Entry Of Final Judgment, and I
warned PACT against rehashing its arguments. I noted that I based my decision, both for
summary judgment and PACT’s first Motion For Reconsideration, on the arguments PACT
made during its briefing for summary judgment.
Despite that warning, PACT takes up the pen once again. In this Motion PACT
repeats its attempt to persuade me that I made a mistake based on arguments it didn’t
raise at summary judgment. Although this time PACT tries to stick to evidence it included
in its Opposition to Intel’s summary judgment motion, it still doesn’t overcome the basic
flaws in its original argument.
Every piece of evidence to which PACT points in Dr. Thomas Conte’s expert report
says that Intel’s cores have the “capability” to process data, not that they do so. It’s
irrelevant that PACT framed the report as “evidence that The Accused Products

4

sequentially process data,” because it didn’t say that. When I ruled on summary judgment,
I read every portion of Dr. Conte’s report that PACT cited at summary judgment. No part
of it claims that Intel’s cores process data. Dr. Conte only said they can. PACT never offered
facts to show that Intel’s chips are sequential data processors, so there was no dispute on
that issue.
PACT now suggests that Dr. Conte’s report raises an issue of fact concerning an
apparatus claim. The problem for PACT is that it didn’t make that argument during
summary judgment briefing. It raised its legal argument regarding apparatus claims for
the first time in its Motion For Reconsideration. Notably, of the six cases PACT cites for
this argument, none—not one—appears in its Opposition to Intel’s summary judgment
motion. As I wrote when I denied PACT’s Cross-Motion, I didn’t reject arguments about
apparatus claims in my summary judgment ruling. Instead, I assessed the evidence and
arguments that PACT put forward and concluded that that evidence didn’t create a
genuine factual dispute about certain parts of Intel’s statement of facts. If PACT wanted
to argue about apparatus claims at summary judgment, it could have done so. It chose
not to do so. Allowing PACT to make new legal arguments regarding apparatus claims at
the reconsideration stage would be the definition of allowing it a “second bite at the
apple.” I won’t let it do so.

5

IV.

CONCLUSION
PACT made its bed with the arguments it made at summary judgment and the way

that it presented its evidence. It wasn’t my job to ferret out every argument that PACT
might have made. Now, PACT must sleep in the bed that it made. Repeated motions for
reconsideration that attempt to undo its mistakes are improper, futile, and dilatory. PACT
will have a chance to appeal when there is a final judgment in this case, and maybe it will
persuade the Federal Circuit that it did enough to preserve the issue. It’s far past time that
it stops trying to persuade me of that fact. An appropriate Order follows.
BY THE COURT:

/s/ Joshua D. Wolson
JOSHUA D. WOLSON, J.
June 9, 2023

6