Ely Holdings Limited v. O'Keeffe's, Inc.

Background

The court had previously granted summary judgment—a ruling without a trial when the evidence does not support a claim—to defendant O’Keeffe’s, Inc., doing business as SaftiFirst, on the plaintiffs’ patent-infringement claims. The earlier ruling focused largely on the plaintiffs’ failure to show that the accused GPX 120 product contained a layer of “fire rated glass” as required by the patent.

The plaintiffs sought leave, or permission, to file a motion asking the court to reconsider that earlier interlocutory order. They relied only on the local rule allowing reconsideration for a manifest failure to consider material facts or decisive legal arguments that had been presented before the earlier order.

Reasons for Denial

The court first held that the plaintiffs had not specifically shown reasonable diligence. They waited nearly two months after the February 3, 2021 summary-judgment order to seek reconsideration and did not explain how that delay satisfied the local rule. The court therefore denied the motion on that ground.

The court also explained that it would deny the motion on the merits even if the plaintiffs had shown diligence. The court’s claim construction defined “fire rated glass” as a multilayered glass sheet with glass outer layers, transparent intumescent material between glass layers, and a designated fire-resistance rating certified by a testing authority. The plaintiffs argued that the court had improperly required the relevant layer to be rated separately rather than relying on the fire rating of the fully assembled flooring unit.

The court found that the plaintiffs had not presented that argument during summary judgment. Their earlier briefing relied on the theory that the lower portion of GPX 120 consisted of another product, SuperLite II-XLB, that had separately received a fire rating. The court concluded that the plaintiffs had presented no evidence that GPX 120 actually used that product as its lower layer. The plaintiffs also had not previously argued that the fire rating for the entire GPX 120 unit satisfied the claim requirement.

The plaintiffs separately argued that the lower portion of the accused product was equivalent to the claimed fire-rated-glass layer under the doctrine of equivalents. The court found that their summary-judgment briefing addressed equivalence mainly in connection with how loads moved through the product, not whether the lower portion was equivalent to fire rated glass. The court also found that the expert opinion on this issue was raised too late in a reply report and that the plaintiffs had not specifically argued before summary judgment that a non-rated layer was equivalent to a fire-rated layer.

Disposition

The court denied the plaintiffs’ motion for leave to file a motion for reconsideration for failure to specifically show diligence under the local rules. The court further stated that, even if diligence had been shown, it would deny the motion because the plaintiffs’ arguments had not been presented before summary judgment was granted. The court excused the plaintiffs’ failure to comply with an earlier meet-and-confer requirement for motions but reminded the parties to follow that requirement in the future.