Interval Licensing LLC v. AOL, Inc. et al

Filing 258

ORDER Denying Plaintiff's (254) Motion for Reconsideration, by Judge Marsha J. Pechman. ( Order posted in C10-1385MJP and all related actions) (CL)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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INTERVAL LICENSING LLC,
Plaintiff,

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CASE NO. C10-1385 MJP
ORDER DENYING
RECONSIDERATION

v.
AOL, INC.,
Defendant.

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THIS ORDER RELATES TO:

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C10-1385 MJP, C11-708 MJP,
C11-709 MJP, C11-710 MJP,
C11-711 MJP, C11-712 MJP,
C11-713 MJP, C11-714 MJP,
C11-715 MJP, C11-716 MJP,
C11-717 MJP.

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This matter comes before the Court on Plaintiff’s motion for reconsideration. (Dkt. No.

21 254.) Having reviewed the motion and the response (Dkt. No. 256), the Court DENIES the
22 motion. Plaintiff filed a reply brief, which the Court did not request. (Dkt. No. 257.) The Court
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ORDER DENYING RECONSIDERATION- 1

1 does not consider the matters set forth in the reply brief because the Court did not authorize the
2 submission of the reply brief. See Local Rule CR 7(h)(3).
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Analysis
Motions for reconsideration are disfavored in this District. Local Rule CR 7(h)(1). “The

5 court will ordinarily deny such motions in the absence of a showing of manifest error in the prior
6 ruling or a showing of new facts or legal authority which could not have been brought to its
7 attention earlier with reasonable diligence.” Id. Plaintiff does not acknowledge this standard.
8 Instead, Plaintiff argues more generally that certain “new facts warrant reconsideration.” (Dkt.
9 No. 254 at 3.)
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The facts Plaintiff presents in its motion for reconsideration do not appear to be new facts

11 that Plaintiff could not have raised when it filed its opposition to the motion to stay. When it
12 filed its opposition brief to the motion to stay on June 6, 2011, Plaintiff chose to refer the Court
13 to its March 28, 2011 brief to oppose the motion to stay. (Dkt. No. 246 (citing Dkt. No. 206).)
14 Plaintiff now argues that it had engaged in substantially more work than it cited in its March
15 briefing. Yet, nowhere does Plaintiff explain why it failed to bring those facts to the Court’s
16 attention on June 6, 2011, when it filed its opposition to the motion to stay. If this information is
17 as critical as Plaintiff contends, Plaintiff should have presented it when presented the opportunity
18 in June. Raising the matters now with no explanation as to why it could not have been raised
19 earlier is no basis for obtaining reconsideration. This alone warrants denial of the motion for
20 reconsideration.
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Even if the Court considers the work expended on briefing the Markman issues and

22 discovery, it does not find that time spent is a compelling reason to deny the stay. Crucially,
23 Plaintiff has failed to show why any of the work will be lost pending the outcome of
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ORDER DENYING RECONSIDERATION- 2

1 reexamination. That some review work of source code may need to be repeated is not sufficient
2 alone to warrant reconsideration. The additional expenditure of time now raised to the Court’s
3 attention does not convince the Court of any manifest error in its decision to stay the case.
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Plaintiff also argues that its experts retained to review source code will be prejudiced by

5 virtue of the stay because they have agreed to a patent prosecution bar until one year after
6 resolution of the case. (Dkt. No. 254 at 5.) The Court is not convinced that this narrow patent
7 prosecution bar merits reconsideration. First, the protective order was entered on April 14, 2011,
8 and Plaintiff could have pointed to its restrictive clause when it filed its opposition to the motion
9 to stay. This is not a new fact that could not have been brought to the Court’s attention earlier.
10 Second, the restriction itself does not convince the Court that the stay was improperly issued.
11 That an expert faces a limited patent prosecution bar for the pendency of this litigation does
12 factor into whether the Court should have issued the stay. Presumably, the restriction to which
13 the experts choose to submit is more than offset by the benefit of generating substantial income
14 by rendering expert services.
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Plaintiff also quibbles with the Court’s statement that “Defendants have presented a

16 substantial body of prior art that they believe will reshape the four patents at issue in this
17 litigation.” (Dkt. No. 254 at 6 (quoting Dkt. No. 253 at 2).) Plaintiff admits that although the
18 examiner has granted reexamination on fewer references than Defendants reported “the examiner
19 is not precluded from relying on the other references.” (Id.) This does not show any manifest
20 error.
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The Court DENIES the motion for reconsideration. Plaintiff has failed to show any

22 manifest error in the order granting the stay or any new facts that could not have been brought to
23 the Court’s attention earlier that compel the Court to reconsider its order.
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ORDER DENYING RECONSIDERATION- 3

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The clerk is ordered to provide copies of this order to all counsel.

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Dated this 12th day of July, 2011.

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A

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Marsha J. Pechman
United States District Judge

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ORDER DENYING RECONSIDERATION- 4