As we've recognized before, motions for reconsideration can be tough.
First, the deadline to move for reargument or reconsideration is fairly easy to miss. It's just 14 days after the order or opinion, and there are no CMECF reminders to flag it for counsel.
Second, the standard for reconsideration is fairly narrow. As we've discussed, you can't rehash arguments you already made—but you also can't make new arguments you could have raised earlier.
What does that leave? New arguments that you couldn't have raised earlier. And those typically result from something unanticipated in the Court's ruling or order.
This week we had a good example of a worthwhile motion for reconsideration. In Wi-LAN Inc. v. Sharp Electronics Corp., C.A. No. 15-379-LPS (D. Del.), Judge Stark recently granted a $4.2m fee award under 35 U.S.C. § 284 following a very-poorly-supported accusation of infringement by plaintiff, which resulted in the Court granting summary judgment of non-infringement.
Shortly after the Court awarded fees, the plaintiff moved for reconsideration, arguing that the fee award should exclude period after the grant of summary judgment and before final judgment—an issue the parties had not addressed. The Court agreed:
As to the appropriate end date, on reconsideration the Court agrees with Wi-LAN that during the period between the Court’s entry of summary judgment and its entry of final judgment as to the ’654 patent, “[t]here was no perpetuation of the ‘exceptional’ conduct found by the Court.” . . . While Defendants are correct that, during that time, they incurred costs as they prepared briefing related to final judgment on the ’654 patent, at that time the parties were “simply engaged in disputes as to how exactly to resolve the underlying case prior to appeal.” . . . Having reconsidered the issue, the Court finds it made an error of apprehension; it overlooked the fact that there is no causal connection between Wi-LAN’s misconduct and the fees expended by Defendants between February 14, 2019 and September 12, 2019.
It did not fault plaintiff for failing to raise the issue earlier:
Given the absence of misconduct during that period (i.e., February to September 2019), the parties – reasonably – did not focus on it during briefing and argument. Nor did the Court. Relatedly, the Court does not view Wi-LAN’s argument relating to this period as one that “should have been presented” previously . . . as it did not become particularly relevant until after the Court issued its Order establishing the pertinent window of time.
The Court granted reconsideration and altered the scope of the original fees order :
Upon reconsideration, the record does not reveal any conduct by Wi-LAN after February 14, 2019 that the Court should be seeking to deter. Therefore, the Court exercises its discretion to modify its Order and sets the end date for the period of attorneys’ fees to February 14, 2019, the date it entered summary judgment in favor of Defendants.
This cuts about seven months' worth of attorneys' fees off of the judgment. How much is that in actual fees? It's hard to tell, because the fees briefing is entirely redacted. But it still serves as another good example of a motion for reconsideration that actually worked.
P.S. Judge Stark is still issuing opinions! It's not yet clear when he is going to fully depart for the Federal Circuit.
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