Kewazinga Corp. v. Microsoft Corp., 1:18-cv-4500-GHW

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Writing for the Court: GREGORY H. WOODS, United States District Judge:
• Parties: KEWAZINGA CORP., Plaintiff, v. MICROSOFT CORPORATION Defendant.
• Docket Number: 1:18-cv-4500-GHW
• Decision Date: 14 September 2022

KEWAZINGA CORP., Plaintiff,
v.
MICROSOFT CORPORATION Defendant.

No. 1:18-cv-4500-GHW

United States District Court, S.D. New York

September 14, 2022

MEMORANDUM OPINION & ORDER

GREGORY H. WOODS, United States District Judge:

In Kewazinga Corp. v. Microsoft Corporation (“Kewazinga I”), the Court granted in part Defendants' motion for summary judgment. Dkt. No. 1:18-cv-4500-GHW, 558 F.Supp.3d 90 (S.D.N.Y. 2020). Plaintiff now seek reconsideration of the Court's decision to grant Defendant summary judgment with respect to the applicability of the doctrine of equivalents. Because Plaintiff has failed to carry its burden to show that the Court erred in Kewazinga I, its motion for reconsideration is DENIED.

I. BACKGROUND

Kewazinga I provides all of the relevant background. That decision addressed the dueling motions for summary judgment brought by the parties to this action. The only aspect of the Court's opinion in Kewazinga I at issue here is the Court's decision to grant Defendant's motion for summary judgment with respect to Plaintiff's infringement claim based on the doctrine of equivalents. In Kewazinga I, the Court held that Plaintiff could not prevail with respect to its claim based on the doctrine of equivalents, concluding that the concept of equivalency promoted by Plaintiff was specifically excluded from the scope of the claims. Kewazinga I, 558 F.Supp.3d at 118 (“‘[T]he concept of equivalency cannot embrace a structure that is specifically excluded from the scope of the claims.' Indeed, the Federal Circuit has ‘found “specific exclusion” where the patentee seeks to

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encompass a structural feature that is the opposite of, or inconsistent with, the recited limitation.'” That is the case with Kewazinga's proposal.” (internal citations omitted)).

In the memorandum of law presented in support of its motion for reconsideration, Dkt. No. 325 (the “Motion”), Plaintiff argues that the “Court's conclusion that ‘no reasonable jury could find equivalence to the “array of cameras” limitation' because the accused structure was outside of the scope of the claims as construed by the Court, i.e., ‘a set of multiple cameras, each fixed in relation to each other,' was legal error.” Motion at 5.

Plaintiff's motion also purports to seek clarification regarding the effect of the Court's decision to exclude portions of the testimony of its damages expert, Michelle Riley. In Kewazinga Corp. v. Microsoft Corp., No. 1:18-CV-4500-GHW, 2021 WL 4066597 (S.D.N.Y. Sept. 1, 2021) (“Kewazinga II”), the Court evaluated Ms. Riley's proposed testimony regarding damages, which relied on her opinion of the appropriate royalty rate. The Court concluded that “Ms. Riley failed to identify a properly apportioned royalty base that accounted for both the patented and unpatented features of Streetside, her testimony is unreliable and should be excluded.” Id. at *21. Because the Court excluded the testimony of Ms. Riley, the Court granted Defendant's motion for summary judgment with respect to the damages case that Plaintiff had presented because it relied only on the excluded testimony of Ms. Riley. Kewazinga I, 558 F.Supp.3d at 122.

In the Motion, Plaintiff “requests clarification of the Court's Orders excluding limited aspects of Ms. Riley's opinion . . . and granting summary judgment ‘as to Kewazinga's damages theory.'” Motion at 21. Plaintiff requests leave to file a supplemental expert report to supplement Ms. Riley's expert report, which Plaintiff describes as “the ordinary course” response for when an expert report is stricken. Id.

II. LEGAL STANDARD

Motions for reconsideration are governed by Local Rule 6.3, which provides that the moving party must set forth “the matters or controlling decisions which counsel believes the Court has

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overlooked.” “Motions for reconsideration are . . . committed to the sound discretion of the district court.” Immigrant Def. Project v. U.S. Immigration and Customs Enf't, No. 14-cv-6117 (JPO), 2017 WL 2126839, at *1 (S.D.N.Y. May 16, 2017) (citing cases). “Reconsideration of a previous order by the Court is an extraordinary remedy to be employed sparingly.” Ortega v. Mutt, No. 14-cv-9703 (JGK), 2017 WL 1968296, at *1 (S.D.N.Y. May 11, 2017) (quoting Anwar v. Fairfield Greenwich Ltd., 800 F.Supp.2d 571, 572 (S.D.N.Y. 2011)). “A motion for reconsideration should be granted only when the [moving party] identifies ‘an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (quoting Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)); see also Gottlieb v. Tyler, 795 Fed.Appx. 82, 83 (2d Cir. 2020). A motion for reconsideration “may not be used to advance new facts, issues or arguments not previously presented to the Court, nor may it be used as a vehicle for re-litigating issues already decided by the Court.” R.B. ex rel. A.B. v. Dep't of Educ. of City of N.Y., No. 10-6684, 2012 WL 2588888, at *3 (S.D.N.Y. July 2, 2012). “[A] motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).

III. DISCUSSION

A. The Showing Required for a Motion for Reconsideration Has Not Been Made

At the outset, the motion for reconsideration should be denied because Plaintiff has not made the showing required for a motion for reconsideration. Plaintiff's motion does not present new law or evidence. Instead, its arguments are based on evidence previously presented to the Court and caselaw that cannot be described as new. While the motion argues that the Court erred in reaching its conclusion, it does not point to “clear error.” Instead, it retreads disputed issues that the Court resolved against the Plaintiff. Because the motion is being used as an opportunity to relitigate issues already decided by the Court and does not raise new legal issues, the Court could

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deny much of it on that basis alone. Nonetheless, the Court considers the specific issues raised by Plaintiff below.

B. Reconsideration of the Court's Conclusion Regarding the Doctrine of Equivalents Is Not Warranted

Plaintiff's argument that the Court erred because it made its decision regarding the applicability of the doctrine of equivalents merely “because the accused structure was outside the scope of the claims as construed by the Court” is spurious. Motion at 5. Plaintiff argues that the Court erred because it based its conclusion solely on the fact that the accused structure was outside of the...