2-Way Computing, Inc. v. Sprint Nextel Corporation et al

Filing 216

ORDER denying 163 Motion for Partial Reconsideration. Signed by Judge James C. Mahan on 2/25/2015. (Copies have been distributed pursuant to the NEF - DC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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2-WAY COMPUTING, INC.,

Case No. 2:11-CV-12 JCM (PAL)

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Plaintiff(s),

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ORDER

v.
SPRINT SOLUTIONS, INC., et al.,

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Defendant(s).

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Presently before the court is defendants Sprint Solutions, Inc., Nextel Finance Company,

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Sprint United Management Company, Nextel of California, Inc., Nextel Boost of California, LLC,

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and Nextel Communications, Inc.’s (“Sprint”) motion for partial reconsideration. (Doc. # 163).

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Plaintiff 2-Way Computing (“2-Way”) filed a response (doc. # 165), and Sprint filed a reply (doc.

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#166).

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I.

BACKGROUND

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This is an action brought by 2-Way for patent infringement. 2-Way accuses Sprint of

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infringing U.S. Patent No. 5,434,797 entitled “Audio Communication System for a Computer and

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Network” (“the ‘797 patent”). (Doc. # 1 at 2). 2-Way describes the patent as disclosing an audio

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communication system that allows the user to talk with other users over a shared network, rather

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than having to rely on traditional telephone lines. The user can use a computer to place a call and

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continue to work on other applications and perform other tasks while the audio communication

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system is operating, and does not need to use a standard telephone. (Id. at 6). 2-Way asserts that

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Sprint has infringed on 23 claims of the ‘797 patent. (Doc. # 23 Attach. 1 at 2).

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...

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...

James C. Mahan
U.S. District Judge

Robert Barrus is named as the inventor of the ‘797 patent, which was issued by the U.S.

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Patent Office on July 18, 1995. (Doc. # 1 at 6).

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Sprint filed a motion for summary judgment for non-infringement. (Doc. # 130). 2-Way

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filed an opposition (doc. # 145), and Sprint replied (doc. # 154). On June 13, 2014, this court

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granted summary judgment and dismissed all claims relating to the issue of doctrine of equivalents

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but denied summary judgment relating to the issue of literal infringement for all claims. (Doc. #

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160).

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Sprint filed the instant motion for reconsideration before the court. (Doc. # 163). Sprint

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argues that the failure to determine whether control signals “ever function as arbitration values at

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the same time such signals . . . are combined in the same packet as audio data” is clear error. (Id.

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at 1-2). Arbitration values are control values that are set to determine which transmission has

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priority. (Doc. # 160 at 9).

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II.

LEGAL STANDARD

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A motion for reconsideration “should not be granted, absent highly unusual

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circumstances.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).

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Reconsideration “is appropriate if the district court (1) is presented with newly discovered

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evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is

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an intervening change in controlling law.” School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263

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(9th Cir. 1993).

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Rule 59(e) “permits a district court to reconsider and amend a previous order,” however

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“the rule offers an extraordinary remedy, to be used sparingly in the interests of finality and

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conservation of judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003)

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(internal quotations omitted).

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III.

DISCUSSION

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Sprint argues that the court failed to determine if the control signals “ever function as

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arbitration values at the same time such signals allegedly are combined in the same packet as audio

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data as Claim 6 requires.” (Doc. # 163 at 2). Sprint alleges that the court’s failure to make this

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determination constitutes clear error. (Id. at 3). Sprint argues that since the control signals must

James C. Mahan
U.S. District Judge

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function as arbitration values at the beginning or end of a call where there is no audio data, it is

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impossible for the arbitration value to be included with audio data. If accepted, this temporal

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exclusivity argument defeats 2-Way’s claim 6. (Doc. # 163 at 3-4). 2-Way replies that Sprint’s

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motion is a new argument, disguised as a motion to reconsider, which would be improper for this

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court to consider. (Doc. # 165 at 3).

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Here, Sprint does not present newly-discovered evidence or call the court’s attention to an

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intervening change in controlling law. Thus, this court must have committed plain error in denying

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summary judgment for claim 6’s literal infringement issue, or the result of summary judgment

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must be so manifestly unjust as to compel this court to grant Sprint’s instant motion.

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A review of Sprint’s motion for summary judgment (doc. # 130 at 15-18) and a review of

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its reply in support of summary judgment (doc. # 154 at 6-9) reveal that it did not make this

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temporal exclusivity argument. Instead, Sprint first argued that the group call identifier and the

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group call modifier were not arbitration fields. (Doc. # 130 at 15-17). Sprint then argued that even

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if they were arbitration fields, these arbitration fields were not in packets with audio data. (Doc. #

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154 at 7). The court rejected both arguments. (Doc. # 160 at 9).

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Sprint would have needed to explicitly make the temporal exclusivity argument in its

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motion for summary judgment if Sprint wanted this court to consider that argument. The court is

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not required anticipate all of a party’s potential arguments and include those potential arguments

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in its analysis. See Genevier v. United States, 357 Fed.App’x. 847 (9th Cir. 2008) (stating that the

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“court is not obliged to scour the record in search of potential arguments”) (citing Keenan v. Allan,

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91 F.3d 1275, 1279 (9th Cir. 1996)).

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Regardless of whether Sprint’s temporal exclusivity argument has merit, its failure to

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explicitly raise that argument in its motion for summary judgment and reply means that the court

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did not commit clear error when it did not determine if control signals could function as arbitration

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values when in the same packet as audio data.

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Further, the court’s denial of summary judgment for the literal infringement issues of claim

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6 did not lead to a manifestly unjust outcome. By Sprint’s own admission, the parties anticipate

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James C. Mahan
U.S. District Judge

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proceeding to trial regardless of the result of summary judgment. (Doc. # 166 at 2 n.2). Sprint may

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present its temporal exclusivity argument in later motions or at trial.
Accordingly, because the court did not commit clear error, and because the denial of

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summary judgment was not manifestly unjust, the court will deny Sprint’s motion to reconsider.

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IV.

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Accordingly,

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CONCLUSION

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants’ motion to
reconsider (doc. # 163) be, and the same hereby is DENIED, consistent with the foregoing.
DATED February 25, 2015.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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