SOURCE SEARCH TECHNOLOGIES, LLC v. KAYAK.COM., INC.
OPINION. Signed by Judge Noel L. Hillman on 12/19/2016. (dmr)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
SOURCE SEARCH TECHNOLOGIES,
KAYAK SOFTWARE CORPORATION,
Civil No. 11-3388(NLH/KMW)
KAPLAN BREYER SCHWARZ & OTTESEN, LLP
By: Jeffrey I. Kaplan, Esq.
Daniel Basov, Esq. (pro hac vice)
100 Matawan Road
Matawan, New Jersey 07747
Counsel for Plaintiff Source Search Technologies, LLC
K&L GATES LLP
By: Rosemary Alito, Esq.
C. Bryan Cantrell, Esq.
One Newark Center, Tenth Floor
Newark, New Jersey 07102
By: John J. Cotter, Esq. (pro hac vice)
State Street Financial Center
One Lincoln Street
Boston, Massachusetts 02111
Counsel for Defendant KAYAK Software Corporation
HILLMAN, United State District Judge:
Plaintiff Source Search Technologies, LLC (“Plaintiff” or
“SST”) brought this patent action against Defendant KAYAK
Software Corporation (“Defendant” or “Kayak”) alleging
infringement of U.S. Patent No. 5,758,328 (the “’328 Patent”).
Presently before the Court is SST’s Motion for
Reconsideration (“SST’s Motion” or “SST Mot.”) [Dkt. No. 300].
For the reasons set forth below, SST’s Motion will be DENIED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Court, in an Opinion dated March 31, 2016 [Dkt. No.
295], reported at Source Search Techs., LLC v. Kayak Software
Corp., Civ. No. 11-3388 (NLH/KMW), 2016 WL 1259961 (D.N.J. Mar.
31, 2016) (“Fees Opinion”), granted-in-part and denied-in-part
Kayak’s Motion for Attorneys’ Fees.
The Court set out the
factual background and procedural history of this case in its
Fees Opinion, 2016 WL 1259961, at *1–2, and will restate only
what is relevant for the disposition of SST’s Motion.
Kayak sought, inter alia, attorneys’ fees and a declaration
that the case was exceptional pursuant to 35 U.S.C. § 285.
request hinged on two different bases:
(1) that SST had
contradicted previous arguments made with respect to the meaning
of the word “quote”; and (2) that SST contradicted previous
arguments made to the U.S. Patent and Trademark Office (the
“PTO”) in reexamination with respect to the meaning of
Fees Op., 2016 WL 1259961, at *3.
rejected the first argument, finding no exceptional conduct on
behalf of SST in its arguments regarding the meaning of “quote.”
Id. at *4–5.
The Court accepted the second argument, and
summarized its findings as follows:
In summary, SST first argued for patentability based on
it being “no small task” to create a database query,
then argued for a claim construction based on the fact
that a person of ordinary skill in the art would have
been able to use software that existed “for decades”
prior to the ’328 Patent to make a database query, and
finally argued for patent eligible subject matter based
on the “inventive concept” of a specialized software to
make the database query. The Court agrees with Kayak
that SST changed its positions back and forth to suit
the argument of the day.
Id. at *7.
As a result of this finding, the Court declared the case
exceptional under 35 U.S.C. § 285, awarded partial attorneys’
fees to Kayak, and ordered supplemental submissions to determine
the amount of attorneys’ fees.
See id. at *7, 10–11.
timely filed this Motion for Reconsideration, and subsequently
filed a Notice of Appeal [Dkt. No. 305]. 1
As explained in the Fees Opinion, the Court exercises
subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
See Fees Op., 2016 WL 1259961, at *2.
On June 8, 2016, the United States Court of Appeals for the
Federal Circuit dismissed the appeal for lack of jurisdiction
because this Court had not quantified the amount of attorneys’
fees. Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1345
(Fed. Cir. 2001). The mandate issued July 15, 2016.
III. LEGAL STANDARD
In this District, Local Civil Rule 7.1(i) governs motions
Local Civil Rule 7.1(i) will apply where
no final judgment has been entered pursuant to Rule 54(b).
Warner v. Twp. of S. Harrison, 885 F. Supp. 2d 725, 747–48
However, the standard for evaluating the request
is the same as the standard under Rule 59(e).
“The scope of a motion for reconsideration . . . is
Blystone v. Horn, 664 F.3d 397, 415 (3d
“The purpose of a motion for reconsideration is ‘to
correct manifest errors of law or fact or to present newly
Lazaridis v. Wehmer, 591 F.3d 666, 669
(3d Cir. 2010) (citing Max’s Seafood Cafe ex rel. Lou-Ann, Inc.
v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)).
A motion for
reconsideration “must rely on one of three grounds:
intervening change in controlling law; (2) the availability of
new evidence; or (3) the need to correct clear error of law or
prevent manifest injustice.”
Id. (citing N. River Ins. Co. v.
CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).
“A party seeking reconsideration must show more than a
disagreement with the Court’s decision, and recapitulation of
the cases and arguments considered by the court before rendering
its original decision fails to carry the moving party’s burden.”
Facteon, Inc. v. Comp Care Partners, LLC, Civ. No. 13-6765, 2015
WL 519414, at *1 (D.N.J. Feb. 9, 2015) (quoting G–69 v. Degnan,
748 F. Supp. 274, 275 (D.N.J. 1990)).
“A motion for
reconsideration should not provide the parties with an
opportunity for a second bite at the apple.”
Tishcio v. Bontex,
Inc., 16 F. Supp. 2d 511, 533 (D.N.J. 1998) (citation omitted).
SST asks this Court to reconsider is finding that the case
was exceptional under 35 U.S.C. § 285.
SST appears to argue
that the Court has overlooked or misinterpreted evidence, and
that this motion is needed to correct a clear error of law or
prevent manifest injustice.
No. 300-1].) 2
(See generally SST Mot. Br. [Dkt.
In support of its position, SST argues two points:
(1) that SST argued its patent solved two “computer centric”
problems based on DDR Holdings, LLC v. Hotels.com, L.P., 773
F.3d 1245 (Fed. Cir. 2014) separate and apart from its other
arguments related to the inventive concept required by the test
for patent eligible subject matter under Alice Corp. Pty. Ltd.
v. CLS Bank Int’l, 134 S. Ct. 2347 (2014) (SST Mot. Br. at 2–5);
and (2) the Court misunderstood SST’s argument related to
SST’s Motion never clearly articulates under which of the three
prongs of the standard for a motion for reconsideration it is
bringing its motion. However, it is clear that there has been
neither an intervening change in controlling law nor any new
predistributed software (SST Mot. Br. at 6–10.)
Both of these
With respect to its second position, the Court has already
considered SST’s argument as it related to predistributed
As this Court has stated before, “[t]he law in this
District is clear that ‘[a] motion for reconsideration is
improper when it is used to ask the Court to rethink what it had
already thought through -- rightly or wrongly.’”
Franchising LLC, Inc. v. AA Hosp. Northshore, LLC, 937 F. Supp.
2d 537, 547 (D.N.J. 2013) (quoting Fishbein Fam. P’ship v. PPG
Indus., Civ. No. 93-653 (WHW), 1994 U.S. Dist. LEXIS 18812, at
*3 (D.N.J. Dec. 28, 1994)) (second modification in original).
If SST disagrees with the Court’s assessment of its argument in
its Alice brief, the proper recourse is through appeal to the
Federal Circuit, as SST has noticed this Court of its intent to
Turning to its first position, while true that SST
presented a separate argument based on DDR Holdings, SST’s
argument presents a misunderstanding of DDR Holdings.
submits that DDR Holdings stands for the proposition that the
second step of the Alice test can be satisfied by either having
an inventive concept or solving a computer centric problem.
(See SST Mot. Br. at 2–4.)
This is incorrect.
The Federal Circuit in DDR Holdings clearly stated, “[t]his
second step is the search for an ‘inventive concept,’ or some
element or combination of elements sufficient to ensure that the
claim in practice amounts to ‘significantly more’ than a patent
on an ineligible concept.”
S. Ct. at 2355).
773 F.3d at 1255 (quoting Alice, 134
The purpose of “or” following “inventive
concept” in the preceding quote is not to turn the second step
of the Alice test into a disjunctive test; rather, it serves to
introduce the definition of what the “inventive concept” is.
What made the claims in DDR Holdings patent eligible was
that, at Alice step two, “the claimed solution is necessarily
rooted in computer technology in order to overcome a problem
specifically arising in the realm of computer networks.”
And, as pointed out by both parties, the Federal Circuit
in DDR Holdings made it abundantly clear that “not all claims
purporting to address Internet-centric challenges are eligible
Id. at 1258 (cited by SST Mot. Br. at 5 n.5 and
Kayak Opp. [Dkt. No. 308] at 10.)
For SST to now submit that its Alice briefing argued that
the ’328 Patent was survived Alice step two only because it
solved a computer centric problem is indeed a frivolous argument
based on the plain reading of DDR Holdings.
The ’328 Patent
still needed to demonstrate an inventive concept, and the
inventive concept is what SST effectively abandoned in its
Markman position, as explained by this Court in the Fee Opinion.
See Fee Op., 2016 WL 1259961, at *5–7.
Further, the Court in finding the ’328 Patent invalid under
35 U.S.C. § 101 remarked that SST’s arguments were “somewhat
disingenuous” as SST attempted to “set aside the ultimate
direction of the patent, a clearly well-worn business practice,
in order to align its case with DDR Holdings.”
Techs., LLC v. Kayak Software Corp. (“Invalidity Opinion”), 111
F. Supp. 3d 603, 612–13 (D.N.J. 2015).
SST submits in its
Motion here that “SST’s DDR Holdings argument was in no way
dependent upon SST’s cited footnote in the Patent Office
(SST Mot. Br. at 5.)
But as the Court explained in
invalidating the ’328 Patent, SST did indeed point to
predistributed software -- the same software that was “no small
task” to create according to the footnote argued to the PTO -as the inventive concept of the ’328 Patent, and that software
was insufficient to bring the claims of the ’328 Patent under
Invalidity Op., 111 F. Supp. 3d at 616–17.
argument relying on DDR Holdings thus still required SST to
argue that the software was an inventive concept.
otherwise is incorrect.
The Court does not find SST’s Motion persuasive, and finds
that it does not meet the high threshold required to warrant
reconsideration of the Fees Opinion.
SST’s Motion presents
merely disagreement with the Court’s decision, and does not
present any error that must be corrected to prevent a manifest
SST has failed to meet its burden in the instant
Accordingly, reconsideration is improper.
For the foregoing reasons, SST’s Motion will be denied.
appropriate order accompanies this opinion.
Date: December 19, 2016
At Camden, New Jersey
___s/ Noel L. Hillman_____
NOEL L. HILLMAN, U.S.D.J.
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