Case 1:14-cv-01153-SCJ Document 89 Filed 02/02/16 Page 1 of 7
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`IN THE UNTTED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATTANTA DTVISION
`
`MICROWAVE VISION S.A., MVG
`INDUSTRIES, SAS, and MGV INC.,
`
`Plaintiffs,
`
`v.
`
`ET$LINDGREN INC.,
`
`Defendant.
`
`CTVI ACTION FILE
`NO. 1:14-CV-1153-SCJ
`
`ORDER
`
`This matter is before the Court on Defendant's motion for clarification
`
`andf or reconsideration [62] and Defendant's motion to file reply brief under seal
`
`1721.
`
`Plaintiff, Microwave Visiory S.A. and its wholly owned subsidiaries MVG
`
`Industries, SAS, and MVG, hrc., filed suit against Defendant ETglindgren Inc.
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`contending that Defendant's over-the-air measurement system utilizes technology
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`claimed by Plaintiff Microwave Vision's U.S. Patent No. 2443,120 ("the'lT0
`
`Patent").l Defendant filed counterclaims seeking declarations that (1) it has not
`
`infringed the '170 Patent and (2) the'170 Patent is invalid. The parties filed
`
`'As originally filed, ESCO Technologies, Inc. was also a named defendant.
`On November 30,2015, the parties filed a joint dismissal with prejudice of ESCO
`Technologies, Inc. See Doc. No. [81].
`
`AO72A
`(Rev.8/82)
`
`
`
`IN THE UNTTED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATTANTA DTVISION
`
`MICROWAVE VISION S.A., MVG
`INDUSTRIES, SAS, and MGV INC.,
`
`Plaintiffs,
`
`v.
`
`ET$LINDGREN INC.,
`
`Defendant.
`
`CTVI ACTION FILE
`NO. 1:14-CV-1153-SCJ
`
`ORDER
`
`This matter is before the Court on Defendant's motion for clarification
`
`andf or reconsideration [62] and Defendant's motion to file reply brief under seal
`
`1721.
`
`Plaintiff, Microwave Visiory S.A. and its wholly owned subsidiaries MVG
`
`Industries, SAS, and MVG, hrc., filed suit against Defendant ETglindgren Inc.
`
`contending that Defendant's over-the-air measurement system utilizes technology
`
`claimed by Plaintiff Microwave Vision's U.S. Patent No. 2443,120 ("the'lT0
`
`Patent").l Defendant filed counterclaims seeking declarations that (1) it has not
`
`infringed the '170 Patent and (2) the'170 Patent is invalid. The parties filed
`
`'As originally filed, ESCO Technologies, Inc. was also a named defendant.
`On November 30,2015, the parties filed a joint dismissal with prejudice of ESCO
`Technologies, Inc. See Doc. No. [81].
`
`AO72A
`(Rev.8/82)
`
`
`
`Case 1:14-cv-01153-SCJ Document 89 Filed 02/02/16 Page 2 of 7
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`numerous construction claim briefs and the Court held a Markman hearing. On
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`July 15, 2015, the Court issued a detailed order construing the patent claims. See
`
`Doc. No. [59]. Defendant asks the Court to reconsider or "clari\1t" that order.
`
`Before discussing the specifics of Defendant's motion, the Court notes that
`
`motions for reconsideration are generally disfavored and only permitted under
`
`limited circumstances. The Court finds Defendant's motion essentially to be asking
`
`the Court to "give it another ffy" which is not a permissible basis for a motion for
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`reconsideration.3 Motions forreconsiderationinthe patentcontextare particularly
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`costly because claims construction is a complicated and detailed process. After
`
`carefully weighing the parties' arguments, the Court made numerous decisions in
`
`its initial order. While the parties are certainly free to disagree with or appeal those
`
`decisions, the reason the standard for a motion for reconsideration is so high is that
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`it requires a depletion of judicial resources to engage in motions to reconsider -
`
`2To take just one example, Defendant argues that there is no link between the
`structure of the mast and support and the function. But that very argument was
`discussed in the Markmanhearing, see Doc. No. [64], HearingTranscript, pp.18-19,
`and addressed by the Court in its initial order.
`3Alttrough Defendant attempts to characterize its arguments as addressing
`"cleat etror," the Court does not agree.
`
`AO72A
`(Rev.8/82)
`
`
`
`Case 1:14-cv-01153-SCJ Document 89 Filed 02/02/16 Page 3 of 7
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`particularly it matters of claim construction for which the parties and the Court
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`have already expended a great deal of resources.*
`
`With these considerations in mind, the Court endeavors to answer
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`Defendant's motion for reconsideration without completely restating its original
`
`claims construction order. Defendant makes three arguments: (1) the Court erred
`
`by not addressing its "indefiniteness" argument on the "and / or" issue, (2) the
`
`Court erred in finding that the means for providirg limitation is not indefinite
`
`because the "support/mast" is not capable of "providirg measurements," and (3)
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`the Court (and Claim 12, for that matter), have used "network of probes" in both
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`a singular and plural sense which renders that term ambiguous at the very least.
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`In its order, the Courtconsidered both Plaintiffs' and Defendant's argument
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`as to what the phrase "pivoting one or more of" modified. Defendant argued that
`
`it modified probes, such that both the probes and the support had to be pivoting,
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`while Plaintiffs contended it modified both "network of probes" and"srrpport,"
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`such that the function could be (1) pivoting only the "network of probes," (2)
`
`pivoting only the "support," arrd (3) pivoting both tlte "network of probes" and the
`
`aThe Court most certainly will not consider additional evidence on a motion
`for reconsideration such as the declaration of Dr. Michael Foegelle, presented by
`Defendant in conjunction with the instant motion. Nor will the Court address any
`arguments raised for the first time in Defendanfs reply brief , such as Defendant's
`contention that "network of probes" should not be interpreted as a singular, fixed
`network of probes." See Doc. No. [73], p.13.
`
`AO72A
`(Rev.8/82)
`
`
`
`Case 1:14-cv-01153-SCJ Document 89 Filed 02/02/16 Page 4 of 7
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`"support." The Court accepted Plaintiffs' argument, thereby finding the functions
`
`to be " and.f or" and rejected Defendant's argument for "and" orly. Id. at 41.42.
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`Implicit in the Court's ruling, therefore, is a finding that the claim was not
`
`indefinite. The Court not only considered the parties' proposed constructions, it
`
`also engaged in lengthy consideration of the patent specification and the
`
`prosecution history, as well as the Court's previous interpretation of "network of
`
`probes," which itself considered the parties' proposed constructions, the
`
`specificatiory as well as intrinsic and extrinsic evidence. As such, this is not a
`
`situation where the Court simply picked a construction offered by one or the other
`
`of the parties and presumed by selecting one that the claim was not indefinite. The
`
`Court found that the claim was not indefinite because "the patent's claims, viewed
`
`in light of the specification and prosecution history, inform those skilled in the art
`
`about the scope of the invention with reasonable certainty." See Dow Chemical Co.
`
`v. Nova Chemicals Corp. (Canada). 803 F.3d 620, 6U (Fed. Cir. 2015) (quoting
`
`Nautilus. Inc. v. Biosig Instruments. Inc.. 134 S. Ct.2120,2124,2129 (2014)).
`
`The Court's construction may be right or wrong, but more importantly
`
`Defendant has not offered any relevant reason it should be reconsidered or that the
`
`Courtsomehow did notconsider the possibility thatitwas indefinite. Because the
`
`Court thoroughly considered the parties' proposed constructions, the specificatiory
`
`AO72A
`(Rev.8/82)
`
`4
`
`
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`Case 1:14-cv-01153-SCJ Document 89 Filed 02/02/16 Page 5 of 7
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`the prosecution history, as well as extrinsic and intrinsic evidence before construing
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`the claim, the Court rejects Defendanfs argument that the claim is too indefinite.
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`Next, the Court found that Claim 12 first set forth a structural element
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`describing a device made up of two main structural elements: (1) a "support for
`
`receiving the object" and (2) a "network of probes." fu id. at29. The Court then
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`found the claim had truo "means-plus-function" limitations. The first describes a
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`"means for providi.g a plurality of measurements" and the second describes "a
`
`means for pivoting." Id. Thus, the Court found there were "structural" elements
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`to Claim 12 ("suppor(' and a "network of probes"), as well as functional
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`("providing measurements" and "pivotirg"). Id. at 30.
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`The Court specifically rejected Defendanfs argument that the patent failed
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`to disclose and clearly link any structure that corresponds to the proposed function
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`and therefore should be invalid for indefiniteness. Id. at 32-33 (citing several
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`locations in the patent describing "support" and "network of probes" that can be
`
`"tilted . . . in relation to each other"). The Court found that the "network of probes"
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`itself was capable of obtaining at least one measurement, but the plurality of
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`measurements comes only from the support that pivots in relationship to the
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`network of probes. Id. at 35. The Court rejected Defendant's argument that th e'170
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`Patent fails to clearly identify a structure for performing the claimed function. Id.
`
`AO72A
`(Rev.8/82)
`
`
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`Case 1:14-cv-01153-SCJ Document 89 Filed 02/02/16 Page 6 of 7
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`at 39 ("But the Court cannot agree that adequate structure for performing this
`
`function is not disclosed (as Defendants have argued), because the specification
`
`clearly associates the claimed function with structures in which the 'support' for the
`
`test object and the 'network of probes' pivot with respect to each other."). The
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`means includes the means for "pivoting" which is what the "suppor{'
`
`accomplishes. The "function" here is the plurality of measurements and the means
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`to do that is both the support and the network of probes. Without the support
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`(which allows the pivot), there cannot be plurality of measurement.
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`Defendant's third argument really circles back to its first argument.
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`Defendant argues that once the Court accepted Plaintiffs' " artd/ or" argument to
`
`mean probes, or support, or both, the Court set up an inconsistency with whether
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`"network of probes" as used in the patent should be singular or plural. Defendant
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`argues that the Court has construed it as "singular" in that the entire network of
`
`probes must move as one, but the Court later used it in a "pltttal" form: "an angle
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`formed between the given one of the network of probes and the main axis of the
`
`support."
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`The Court does not agree that there is an inconsistency or that each usage can
`
`be described as "singular" ot "plrJral." The Court has determined that the
`
`"network of probes" moves as one and not as separate probes, but there is more
`
`AO72A
`(Rev.8/82)
`
`
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`Case 1:14-cv-01153-SCJ Document 89 Filed 02/02/16 Page 7 of 7
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`than one probe in the "network of probes."
`
`The
`
`Court does not find that a
`
`construction that multiple probes move as
`
`one is
`
`"singular/' it is simply a
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`construction of the phrase "network of probes" as it is used in the claim. As to the
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`second usage, as the Court explained in its initial order, there is a different angle
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`between any one of the probes in the network and the main axis of the support. See
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`id. at 35 n.L8 (assuming a network of five probes, the "pivoting places each of the
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`five'probes' in a novel relative angle to the test object"). Because there are multiple
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`probes, there are multiple angles. This determination is not inconsistent with the
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`Court's finding that the network of probes moves as one.
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`Conclusion
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`For the foregoing reasons/ the Court DENIES Defendant's motion for
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`clarification and/or reconsideration [62] and GRANTS Defendant's motion to file
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`reply brief under seall72l.
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`IT IS SO ORDERED this I s+ day of February 2076.
`
`HONORABLE STEVE C. PNES
`UNITED STATES DISTRICT IUDGE
`
`AO72A
`(Rev.8/82)
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