Power Survey, LLC v. Premier Util. Servs., LLC

• Decision Date: 18 February 2015
• Docket Number: Civil Case No. 13-5670 (FSH) (JBC)
• Court: U.S. District Court — District of New Jersey
• Parties: POWER SURVEY, LLC, Plaintiff, v. PREMIER UTILITY SERVICES, LLC, et al., Defendants.

POWER SURVEY, LLC, Plaintiff, v. PREMIER UTILITY SERVICES, LLC, et al., Defendants.

Civil Case No. 13-5670 (FSH) (JBC)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

February 18, 2015

NOT FOR PUBLICATION

OPINION & ORDER

HOCHBERG, District Judge:

This matter comes before the Court upon a motion to reconsider this Court's November 14, 2014, Order granting a motion for a preliminary injunction. The Court has reviewed the submissions of the parties and considers the motion pursuant to Federal Rule of Civil Procedure 78.

Plaintiff Power Survey moved for a preliminary injunction, seeking to enjoin Defendants Premier Utility Services, LLC and L-3 Communications Holdings, Inc. d/b/a Narda Safety Test Solutions (hereinafter "Narda") from infringing several patents. Power Survey holds three issued patents in the United States Patent and Trademark Office (PTO) relating to methods and systems for detecting contact or stray voltage, including U.S. Patent Nos. 8,482,274, 8,536,856, and 8,598,864. Plaintiff asserts that Defendants' use of Narda Models 8950/10 and 8950/20 infringes claims 1, 2, and 8 of the '274 patent. Claim 1 of the '274 patent states:

1. A mobile apparatus mounted to a motor vehicle for delecting an electrie field, comprising:

at least one sensor probe, coupled to an electrically non-interfering support frame mounted to the vehicle, that generates a signal corresponding to an electric field detected by the at least one sensor probe as the sensor probe moves past a plurality of conductive objects proximate a street, wherein the at least one sensor probe comprises two or more electrodes, and wherein the two or more electrodes are each separated by a rigid insulator;

a processor, coupled to the at least one sensor probe, that digitizes the signal to form electric field data represented as a plurality of tune domain samples, produces field strengths of each of the at least one sensor probes using :he plurality of time domain samples, and analyzes the field strengths to identify a line frequency voltage anomaly in the electric field, wherein the electric field data is analyzed based on an expected frequency pertaining to the line frequency voltage anomaly and wherein :he voltage anomaly is generated by leakage of electric power from a power grid to at least one energized object in the plurality of conductive objects proximate the street; and

an indicator, coupled to the processor, that alerts a user to a presence of the voltage anomaly in the electric field and indicates that at least one conductive object proximate the street is energized to a potentially harmful level.

Dependent claims 2 and 8 add the limitations: an "analog to digital converter . . . for digitizing electric signals" and a "graphical user interface that displays electric field signal strength data."

The Court held a preliminary injunction hearing on September 4, 2014, wherein Dr. David Fugate, an electrical engineer, testified regarding the presence of each claim element in Narda's systems; inventor David Kalokitis testified regarding the manner in which Power Survey's device detects stray voltage; and Power Survey Chief Executive Officer Thomas Catanese testified to its loss of market share after stray-voltage detection services were offered using the Narda system. Defendants' primary argument to this Court was a claim constructionargument, which if adopted by this Court would purportedly lead to a ruling that the Defendants did not infringe. Their secondary argument, that the patents were purportedly invalid, consisted of five pages of briefing. All of the aforementioned witnesses testified for Plaintiff; Defendant called no witnesses on invalidity or any other issue.

The Court preliminarily construed the sole disputed claim term "voltage anomaly" to mean "detecting an electric field above a baseline threshold" and then applied the four-factor test for analyzing a preliminary injunction: (1) the likelihood of Plaintiff's success on the merits; (2) the likelihood of irreparable harm in the absence of preliminary relief; (3) the balance of equities; and (4) the public interest. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

In its November 21, 2014, Order, the Court found that Plaintiffs had demonstrated a likelihood of success in proving that Defendants' use of the Narda devices infringed claims 1, 2, and 8 of the '274 patent. Power Survey, LLC v. Premier Util. Servs., LLC, Civ. No. 13-5670, 2014 WL 6611518, at *3 (D.N.J. Nov. 21, 2014). The Court also found that the evidence adduced at the hearing did not raise a "substantial question concerning . . . validity" on the basis of obviousness or inventorship challenges. Id. Regarding irreparable harm, the Court found evidence that Power Survey suffered price erosion and loss of market share for its only product based on Defendants' ability to undercut the market with a cheaper, likely inferior product. Balancing the equities and considering the public interest, the Court found that the evidence of error rates using Narda's device likely exposed the public to additional risk in detecting potentially harmful electrical charges. Considering the four factors, the expert and witness testimony, and the available documentary evidence, the Court found that Plaintiff had demonstrated a clear showing of the need for injunctive relief and granted the motion for a preliminary injunction.

On November 26, 2014, several weeks after this Court had held an evidentiary hearing and a week after it had issued its Opinion and Order, the Patent Trial and Appeal Board of the Patent and Trademark Office initiated inter partes review over all claims of the challenged patents. Defendants had filed six inter partes review petitions, all relating to the same patents, each with different contentions and combinations of prior art references. The PTAB granted some of Defendants' six requests for initiation of inter partes review based on the assertion of obviousness premised upon a combination of the Thomas Reference, the EFA-300 Manual—described as an instructional book distributed to customers regarding use of the prior art EFA-300 sensor—and other references. Defendants thereupon moved for reconsideration of this Court's Preliminary Injunction Order based on their claim of "newly discovered" or "overlooked" evidence: Defendants contended that the PTAB's initiation of inter partes review is "newly discovered evidence."

Local Civil Rule 7.1(i) governs motions for reconsideration. Bowers v. Nat'l. Collegiate Athletics Ass'n, 130 F. Supp. 2d 610, 612 (D.N.J. 2001); see NL Indus., Inc. v. Commercial Union Ins., 935 F. Supp. 513, 515 (D.N.J. 1996). Reconsideration is to be granted only sparingly. See United States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994).

The parties agree that this motion should be analyzed under the standard set forth in Max's Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Under this standard, the movant has the burden of demonstrating either: "(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court [issued its order]; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." Id. (citing N. River Ins. Co. v. CIGNA Reinsurance Co, 52 F.3d 1194, 1218 (3d Cir. 1995)). The Court will grant a motion for reconsideration only where its prior decision has overlooked a factual or legalissue that may alter the disposition of the matter. See United States v. Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999); see also L.Civ.R. 7.1(i); Dunn v. Reed Group, 2010 WL 174861, at *1 (D.N.J. Jan. 13, 2010). Local Civil Rule 7.1(i) creates a specific procedure by which a party may ask the court to take a second look at any decision "upon a showing that dispositive factual matters or controlling decisions of law were overlooked by the court in reaching its prior decision. The word 'overlooked' is the operative term in the Rule." Bowers, 130 F. Supp. 2d at 612 (citation omitted); see also Compaction Sys. Corp., 88 F. Supp. 2d at 345.

Ordinarily, a motion for reconsideration addresses either: (1) those matters of fact or issues of law which were presented to, but not considered by, the court in the course of making the decision at issue, see SPIRG v. Monsanto Co., 727 F. Supp. 876, 878 (D.N.J. 1989), aff'd, 891 F.2d 283 (3d Cir. 1989); or (2) new evidence that was unavailable or unknown at the original hearing. See Levinson v. Regal Ware, Inc., Civ. No. 89-1298, 1989 WL 205724, at *3 (D.N.J. Dec. 1, 1989). Reconsideration is not to be used as a means of expanding the record to include matters not originally before the court. Bowers, 130 F. Supp. 2d at 613; Resorts Int'l. v. Greate Bay Hotel and Casino, Inc., 830 F. Supp. 826, 831 & n. 3 (D.N.J. 1992); Egloff v. N.J. Air Nat'l Guard, 684 F. Supp. 1275, 1279 (D.N.J. 1988). Moreover, L.Civ.R. 7.1(i) does not allow parties to restate arguments which the court has already considered. See G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990). Thus, a difference of opinion with the court's decision should be dealt with through the normal appellate process. Bowers, 130 F. Supp. 2d at 612 (citations omitted); Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F. Supp. 159, 162 (D.N.J. 1988); see also Chicosky v. Presbyterian Medical Ctr., 979 F. Supp. 316, 318 (D.N.J. 1997); NL Indus., Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996) ("Reconsideration motions . . . may not be used to re-litigate old matters, or to raise arguments orpresent evidence that could have been raised prior to the entry of judgment."). In other words, "[a] motion for reconsideration should not provide the parties with an opportunity for a second bite at the apple." Tishcio v. Bontex, Inc., 16 F. Supp. 2d 511, 533 (D.N.J. 1998) (citation omitted).

Prescinding from the question of whether another entity's preliminary ruling is actually "evid...