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Judge Netburn Holds That a Motion for Reconsideration is Not a Vehicle for Taking a "Second Bite at the Apple"

On November 29, 2017, United States Magistrate Judge Sarah Netburn (S.D.N.Y.) denied plaintiff Seoul Viosys Co., Ltd.'s ("Seoul Viosys") motion for reconsideration of the Court's claim construction ruling.

The Court previously construed the term "exposed from" recited in U.S. Patent No. 9,269,867 to mean "removed by photolithography, etching, or other methods." Seoul Viosys moved for reconsideration on the ground that the Court overlooked certain legal precedent and facts. But, the Court found that Seoul Viosys either already discussed these issues in its claim construction brief or they constitute new arguments not previously presented to the Court. The Court explained that a motion for reconsideration "is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a 'second bite at the apple.'"

Moreover, the Court found that Seoul Viosys's motion misinterprets the claim construction ruling and misconstrues the governing case law. Seoul Viosys argued that the Court's construction of "exposed from" violates axiomatic patent law prohibiting the importation of process steps from the patent specification into the claim. Thus, Seoul Viosys urged the Court to construe the term to mean simply "uncovered by." The Court explained, however, this construction is at odds with the term's ordinary meaning, which requires the first conductivity-type semiconductor layer to undergo the process steps of being covered and then being revealed. The Court noted that its construction is also consistent with the patent's specification and each of the patent's preferred embodiments.

Accordingly, the Court denied Seoul Viosys's motion for reconsideration.

Case: Seoul Viosys Co., Ltd. v. P3 Int'l Corp., No. 16-CV-06276 (AJN)(SN), Dkt. No. 130 (S.D.N.Y. Nov 29, 2017).