Case 2:22-md-03034-TGB ECF No. 218, PageID.12194 Filed 01/22/24 Page 1 of 5
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`
`IN RE NEO WIRELESS, LLC
`PATENT LITIGATION
`
`
`
`2:22-MD-03034-TGB
`
`HON. TERRENCE G. BERG
`
`OPINION AND ORDER
`DENYING MOTION FOR
`RECONSIDERATION
`(ECF NO. 201)
`
`THIS MEMORANDUM
`OPINION AND ORDER
`RELATES TO ALL CASES
`
`Plaintiff Neo Wireless, LLC (“Plaintiff” or “Neo”) has filed a Motion
`for Reconsideration of the Court’s Indefiniteness Determination. ECF
`No. 201. Defendants1 joined in filing their Opposition. ECF No. 202.
`On June 21, 2023, the Court held a hearing to determine the proper
`construction of the disputed claim terms in U.S. Pat. No. 8,467,366 (the
`“’366 Patent”); U.S. Pat. No. 10,833,908 (the “’908 Patent”); U.S. Pat. No.
`
`1 Defendants include Ford Motor Company, American Honda Motor Co.,
`Inc., Honda Development & Manufacturing of America, LLC,
`Volkswagen Group of America, Inc., Volkswagen Group Of America
`Chattanooga Operations, LLC, Nissan North America, Inc., Nissan
`Motor Acceptance Corporation a/k/a Nissan Motor Acceptance Company,
`LLC, Toyota Motor Corporation, Toyota Motor North America, Inc.,
`Toyota Motor Sales, U.S.A., Inc., Toyota Motor Engineering &
`Manufacturing North America, Inc., Toyota Motor Credit Corporation,
`General Motors Company, General Motors, LLC, Tesla, Inc., and FCA
`US, LLC (collectively “Defendants”).
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`Page 1 of 5
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`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`
`IN RE NEO WIRELESS, LLC
`PATENT LITIGATION
`
`
`
`2:22-MD-03034-TGB
`
`HON. TERRENCE G. BERG
`
`OPINION AND ORDER
`DENYING MOTION FOR
`RECONSIDERATION
`(ECF NO. 201)
`
`THIS MEMORANDUM
`OPINION AND ORDER
`RELATES TO ALL CASES
`
`Plaintiff Neo Wireless, LLC (“Plaintiff” or “Neo”) has filed a Motion
`for Reconsideration of the Court’s Indefiniteness Determination. ECF
`No. 201. Defendants1 joined in filing their Opposition. ECF No. 202.
`On June 21, 2023, the Court held a hearing to determine the proper
`construction of the disputed claim terms in U.S. Pat. No. 8,467,366 (the
`“’366 Patent”); U.S. Pat. No. 10,833,908 (the “’908 Patent”); U.S. Pat. No.
`
`1 Defendants include Ford Motor Company, American Honda Motor Co.,
`Inc., Honda Development & Manufacturing of America, LLC,
`Volkswagen Group of America, Inc., Volkswagen Group Of America
`Chattanooga Operations, LLC, Nissan North America, Inc., Nissan
`Motor Acceptance Corporation a/k/a Nissan Motor Acceptance Company,
`LLC, Toyota Motor Corporation, Toyota Motor North America, Inc.,
`Toyota Motor Sales, U.S.A., Inc., Toyota Motor Engineering &
`Manufacturing North America, Inc., Toyota Motor Credit Corporation,
`General Motors Company, General Motors, LLC, Tesla, Inc., and FCA
`US, LLC (collectively “Defendants”).
`
`
`
`
`
`
`Page 1 of 5
`
`
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`Case 2:22-md-03034-TGB ECF No. 218, PageID.12195 Filed 01/22/24 Page 2 of 5
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`10,447,450 (the “’450 Patent”); U.S. Pat. No. 10,075,941 (the “’941
`Patent”; U.S. Pat. No. 10,771,302 (the “’302 Patent”); and U.S. Pat. No.
`10,965,512 (the “’512 Patent”) (collectively “Asserted Patents”).
`On November 20, 2023, the Court entered a Claim Construction
`Order construing the disputed claim terms identified by the parties,
`pursuant to the procedure set forth in Markman v. Westview
`Instruments, Inc., 517 U.S. 370 (1996). ECF No. 198. In the Order, the
`Court provided analysis for its indefiniteness determination for the
`disputed phrase “low peak-to-average power ratio in the time domain”
`recited in Claims 1 and 17 of the ’366 Patent. Id., PageID.11570–79. Neo
`moves the Court for reconsideration of this determination pursuant to
`EDMI Local Rule 7.1(h)(2)(A).
`Neo argues that the Court erred by requiring the specification to
`expressly state a specific threshold or comparator for evaluating a term
`of degree. ECF No. 201, PageID.11661–64. Neo also argues that the
`Court “appears” to have adopted a rule that a single, uniform industry
`standard is required for term to be definite. Id. at PageID.11664–65.
`Finally, Neo contends that the Court failed to consider and give effect to
`unrebutted evidence that a person of skill in the art (“POSA”) in this field
`would know what the ’366 Patent intended by a “low” peak-to-average
`power ratio (“PAPR”). Id., PageID.11665–68.
`The Court finds that Neo has not presented “[a]n intervening
`change in controlling law,” “new facts warrant[ing] a different outcome,”
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`Case 2:22-md-03034-TGB ECF No. 218, PageID.12196 Filed 01/22/24 Page 3 of 5
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`or a “mistake” as required by the Local Rules to justify reconsideration.
`L.R. 7.1(h)(2)(A–C). Neo’s motion proffers the same attorney argument,
`case law, and extrinsic evidence that it previously presented as
`supporting its position. Thus, the Court finds that Neo’s motion is an
`improper attempt at re-arguing
`its rejected claim construction
`arguments. Evans v. City of Ann Arbor, No. 21-10575, 2022 U.S. Dist.
`LEXIS 134314, at *3 (E.D. Mich. July 28, 2022) (“[M]otions for
`reconsideration are not an opportunity to re-argue a case, present new
`arguments, or otherwise relitigate issues that the court previously
`considered.”).
`At the outset, the Court notes that the parties agree that the phrase
`“low peak-to-average power ratio in the time domain” is a term of degree.
`Neo concedes that the Court correctly stated that the legal standard for
`indefiniteness requires that “the claims must ‘inform those skilled in the
`art about the scope of the invention with reasonable certainty,’ in light of
`the specification and prosecution history.” ECF No. 198, PageID.11572
`(citing Nautilus Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 910
`(2014)). The Court further noted that this requires that “[t]he claims,
`when read in light of the specification and the prosecution history, must
`provide objective boundaries for those of skill in the art.” Id.,
`PageID.11572–73 (citing Interval Licensing LLC v. AOL, Inc., 766 F.3d
`1364, 1371 (Fed. Cir. 2014)).
`Contrary to Neo’s contention, the Court did not require the intrinsic
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`Page 3 of 5
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`Case 2:22-md-03034-TGB ECF No. 218, PageID.12197 Filed 01/22/24 Page 4 of 5
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`evidence to expressly state a specific threshold or comparator for the
`disputed term to be definite. Likewise, the Court did not adopt a rule that
`a single, uniform industry standard is required for term to be definite.
`Indeed, the Court did not adopt the reasoning of the patent examiner,
`but instead found the examiner’s reasoning persuasive. ECF No. 198,
`PageID.11578. In other words, the examiner’s reasoning was only part of
`the evidence considered by the Court in making its indefiniteness
`determination. The Court analyzed all of the evidence presented by the
`parties, both intrinsic and extrinsic, and concluded that “neither the
`intrinsic [n]or extrinsic evidence provides objective boundaries for the
`term ‘low peak-to-average power ratio.’” Id. at PageID.11576–79.
`To be sure, the Court considered Mr. Alberth’s testimony using the
`proper legal standard for indefiniteness. Id. at PageID.11578–79. As the
`Court determined, Mr. Alberth’s interpretation of one set of data is not
`an objective boundary for determining what qualifies as a low peak-to-
`average-power-ratio or “PAPR.” Id. Moreover, Neo’s argument that
`Defendants’ expert, Dr. Akl, did not rebut Mr. Alberth’s testimony is
`incorrect. See ECF No. 131-2, ¶¶ 35–55 (Decl. of Dr. Robert Akl).
`In summary, the Court understands that Neo disagrees with the
`Court’s indefiniteness determination for the disputed phrase “the
`ranging signal exhibits a low peak-to-average power ratio in the time
`domain.” Neo’s disagreement, however, does not mean that the Court
`committed an error that warrants reconsideration. For these reasons,
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`Page 4 of 5
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`Case 2:22-md-03034-TGB ECF No. 218, PageID.12198 Filed 01/22/24 Page 5 of 5
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`Neo’s motion for reconsideration is DENIED.
`IT IS SO ORDERED.
`
`Dated: January 22, 2024
`
`/s/Terrence G. Berg
`TERRENCE G. BERG
`UNITED STATES DISTRICT JUDGE
`
`
`
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`Page 5 of 5
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