Case 1:19-cv-01006-JDW Document 417 Filed 06/09/23 Page 1 of 6 PageID #: 55590
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`PACT XPP SCHWEIZ AG,
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`
`Plaintiff,
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`v.
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`INTEL CORPORATION,
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`
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`Defendant.
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`
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`Case No. 1:19-cv-01006-JDW
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`
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`MEMORANDUM
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`In litigation, lawyers argue, and judges decide. Oftentimes, the lawyers (and their
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`clients) are unhappy with the way that a judge decides an issue. But when lawyers disagree
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`with a judge, the remedy is not to tell the judge how “strenuously” they feel about their
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`position. That approach didn’t work for Lt. Cdr. JoAnne Galloway because that’s not “how
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`it’s done.”1 Unfortunately, the lawyers representing PACT XPP Schwiez AG must not like
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`courtroom dramas because they have not learned that lesson. They are unhappy with my
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`summary judgment decision, and they want me to know it. So, for the third time, they
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`have asked me to revisit the ruling. This try fairs no better than the last two.
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`If anything, this latest attempt is worse because PACT’s effort has become dilatory.
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`It’s time to stop. If PACT wants to appeal my ruling, it will have an opportunity to do so at
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`the end of the case. It cannot keep fighting a rearguard action to revisit decisions I’ve
`
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`1 A Few Good Men (Castle Rock Entertainment 1992).
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`PACT XPP SCHWEIZ AG,
`
`
`Plaintiff,
`
`v.
`
`
`INTEL CORPORATION,
`
`
`
`
`
`
`Defendant.
`
`
`
`
`Case No. 1:19-cv-01006-JDW
`
`
`
`
`
`
`
`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).
`
`
`
`Case 1:19-cv-01006-JDW Document 417 Filed 06/09/23 Page 2 of 6 PageID #: 55591
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`made, particularly when its constant attempts to do so ignore everything I’ve said about
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`the reason I granted summary judgment in the first place.
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`I.
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`PROCEDRAL HISTORY
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`On May 30, 2019, PACT filed a complaint asserting that Intel Corp. infringed 12 of
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`its patents, including the ’301 Patent. I issued a summary judgment opinion on March 24,
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`2023, which granted Intel summary judgment of non-infringement of the ‘301 Patent. On
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`March 29, 2023, PACT filed a Motion For Reconsideration of my summary judgment
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`opinion regarding the ‘301 Patent. In its Motion, PACT argued that its expert Dr. Conte
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`offered evidence that “Intel’s accused chips … perform sequential data processing.” (D.I.
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`402 at 2.) I denied the reconsideration motion on April 17, 2023. In my ruling, I explained
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`that PACT didn’t cite Dr. Conte’s report or any other evidence in response to Intel’s
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`statement of facts to create a factual dispute about whether Intel’s chips process data or
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`only sequences of instructions. I also explained that Dr. Conte’s report doesn’t say that
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`Intel’s chips process data, only that they are capable of processing data, and that was not
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`how PACT described Dr. Conte’s report to me. That is, I found PACT’s description of Dr.
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`Conte’s report misleading (a fact that I now suspect was intentional).
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`On April 26, 2023, Intel moved to stay this case pending ex parte review of the only
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`remaining patent. In response, on May 10, 2023, PACT filed a Conditional Cross-Motion
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`For Entry Of Final Judgment Of Noninfringement. In that Cross-Motion, PACT asked for
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`leave to submit a second motion for reconsideration. PACT explained that it wanted to
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`2
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`Case 1:19-cv-01006-JDW Document 417 Filed 06/09/23 Page 3 of 6 PageID #: 55592
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`seek reconsideration to address my holding that PACT had to show that Intel’s chips
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`process data. (D.I. 410 at 11-12.) On May 15, 2023, I denied both Intel’s Motion To Stay
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`and PACT’s Cross-Motion. In my ruling, I explained that (a) in rejecting PACT’s first
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`reconsideration motion, I considered the evidence that PACT had put forward in response
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`to Intel’s summary judgment motion and (b) if PACT had other evidence available to it (or
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`even in the record), but did not cite it in response to Intel’s statement of facts, then I did
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`not have to consider it in ruling on summary judgment. (D.I. 414 at ¶ 4 (citing Fed. R. Civ.
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`P. 56(c)(1)(A)).) I also explained that “PACT should not think I will allow it to rewrite history
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`in the future.” (Id.)
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`On June 2, 2023, PACT filed this second Motion For Reconsideration. As it did with
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`its first Motion For Reconsideration, PACT argues that Dr. Conte’s report creates a genuine
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`issue of fact. Incredibly, there’s nothing in PACT’s Motion to explain how this Motion is
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`different from the first.
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`II.
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`LEGAL STANDARD
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`PACT invokes Federal Rule of Civil Procedure 59 in its Motion, but that rule only
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`applies to a motion to alter or amend a judgment. Because I have only granted partial
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`summary judgment tin this case, I have not entered judgment, and Rule 59 does not apply.
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`Instead, I treat PACT’s Motion like any other motion to reconsider an interlocutory order.
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`A court may reconsider a prior ruling if the moving party shows: “(1) an intervening change
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`in the controlling law, (2) the availability of new evidence that was not available when the
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`3
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`Case 1:19-cv-01006-JDW Document 417 Filed 06/09/23 Page 4 of 6 PageID #: 55593
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`court issued its order, or (3) the need to correct a clear error of law or fact or to prevent
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`manifest injustice.” U.S. ex rel Schumann v. Astrazeneca Pharmaceuticals L.P., 769 F.3d 837,
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`848-49 (3d Cir. 2014). Courts should grant reconsideration “sparingly.” United States v.
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`Cephalon, Inc., 159 F. Supp. 3d 550, 555 (E.D. Pa. 2016). A litigant may not use a motion
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`for reconsideration to get a “second bite at the apple.” Bhatnagar v. Surrendra Overseas
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`Ltd., 52 F.3d 1220, 1231 (3d Cir. 1995).
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`III.
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`DISCUSSION
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`I did not invite PACT to file a second motion for reconsideration. PACT alluded to
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`the fact it might do so in its Conditional Cross-Motion For Entry Of Final Judgment, and I
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`warned PACT against rehashing its arguments. I noted that I based my decision, both for
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`summary judgment and PACT’s first Motion For Reconsideration, on the arguments PACT
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`made during its briefing for summary judgment.
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`Despite that warning, PACT takes up the pen once again. In this Motion PACT
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`repeats its attempt to persuade me that I made a mistake based on arguments it didn’t
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`raise at summary judgment. Although this time PACT tries to stick to evidence it included
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`in its Opposition to Intel’s summary judgment motion, it still doesn’t overcome the basic
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`flaws in its original argument.
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`Every piece of evidence to which PACT points in Dr. Thomas Conte’s expert report
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`says that Intel’s cores have the “capability” to process data, not that they do so. It’s
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`irrelevant that PACT framed the report as “evidence that The Accused Products
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`4
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`Case 1:19-cv-01006-JDW Document 417 Filed 06/09/23 Page 5 of 6 PageID #: 55594
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`sequentially process data,” because it didn’t say that. When I ruled on summary judgment,
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`I read every portion of Dr. Conte’s report that PACT cited at summary judgment. No part
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`of it claims that Intel’s cores process data. Dr. Conte only said they can. PACT never offered
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`facts to show that Intel’s chips are sequential data processors, so there was no dispute on
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`that issue.
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`PACT now suggests that Dr. Conte’s report raises an issue of fact concerning an
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`apparatus claim. The problem for PACT is that it didn’t make that argument during
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`summary judgment briefing. It raised its legal argument regarding apparatus claims for
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`the first time in its Motion For Reconsideration. Notably, of the six cases PACT cites for
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`this argument, none—not one—appears in its Opposition to Intel’s summary judgment
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`motion. As I wrote when I denied PACT’s Cross-Motion, I didn’t reject arguments about
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`apparatus claims in my summary judgment ruling. Instead, I assessed the evidence and
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`arguments that PACT put forward and concluded that that evidence didn’t create a
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`genuine factual dispute about certain parts of Intel’s statement of facts. If PACT wanted
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`to argue about apparatus claims at summary judgment, it could have done so. It chose
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`not to do so. Allowing PACT to make new legal arguments regarding apparatus claims at
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`the reconsideration stage would be the definition of allowing it a “second bite at the
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`apple.” I won’t let it do so.
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`5
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`Case 1:19-cv-01006-JDW Document 417 Filed 06/09/23 Page 6 of 6 PageID #: 55595
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`IV.
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`CONCLUSION
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`PACT made its bed with the arguments it made at summary judgment and the way
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`that it presented its evidence. It wasn’t my job to ferret out every argument that PACT
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`might have made. Now, PACT must sleep in the bed that it made. Repeated motions for
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`reconsideration that attempt to undo its mistakes are improper, futile, and dilatory. PACT
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`will have a chance to appeal when there is a final judgment in this case, and maybe it will
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`persuade the Federal Circuit that it did enough to preserve the issue. It’s far past time that
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`it stops trying to persuade me of that fact. An appropriate Order follows.
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`June 9, 2023
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`BY THE COURT:
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`/s/ Joshua D. Wolson
`JOSHUA D. WOLSON, J.
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`6
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