Here's some interesting language from Judge Andrews yesterday, in an oral order:
In a motion (No. 15-611, D.I. 532) that is as pointless as a motion can be, Plaintiff asks for reconsideration/clarification of an issue that was not decided. Defendants add to the frivolity by writing five pages in opposition (No. 15-611, D.I. 542), while agreeing that I did not decide the issue. Both sides are surely right. Thus, Plaintiffs motion is DISMISSED as moot.
Plaintiff had moved for reconsideration of Judge Andrews' order adopting a special master order that struck a new DOE theory. According to Judge Andrews' original order:
I think TQ . . . advanced a distinctly new DOE theory and did so without permission in derogation of the scheduling order’s deadline for Final Infringement Contentions, and certainly without any “good cause” for doing so . . . .
In response, TQ moved for reconsideration on what seems to be an unrelated issue—whether the Court somehow found that the products at issue do not practice certain standards:
TQ Delta hereby seeks reargument, reconsideration and/or clarification on a single issue – whether SMO #18 or the Memorandum Order summarily found in any way that is conclusive, binding, or final that the Accused Products do not practice the MoCA standards at issue.
The original order barely mentioned the "MoCA standards," other to say that plaintiff still had "viable" theories related to those standards:
I especially note that TQ has source code literal infringement and MOCA literal infringement (which may not have any value) and MOCA mathematical DOE infringement. Thus, TQ has at least two viable theories, and it does not need to add a third after the deadline.
What Happened Here? Looks Like a Failure to Meet and Confer
If the opinion says they have a viable theory of literal infringement under the MoCA standard, why did they bring the motion for reconsideration?
Because, it seems, a defendant in a related case suggested that the Court's order had adopted a statement in the special master opinion, which said that a specific technique in the standard was not used in the accused products. (Of course, the Court did not mention that statement its own opinion, and seems to have held the opposite).
TQ says that it reached out to opposing counsel to resolve this before filing, but they responded that "the team member responsible for this issue is out of the country and thus we’re not in a position to provide a response today." D.I. 543 at 3.
Apparently, that's how you end up filing a motion for reconsideration of an issue that was not actually decided. It remains unclear why opposing counsel felt it necessary to file a five-page answering briefing.
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