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Case 4:19-cv-01072 Document 111 Filed on 07/15/21 in TXSD Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
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`
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`BACKOFF, LLC and NUTEC, INC.,
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`Plaintiffs,
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`v.
`SAMOCO OIL TOOLS, INC., et al.,
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`Defendants.
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`
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`CIVIL ACTION NO. 4:19-cv-01072
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`OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATION
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`Defendants, Samoco Oil Tools, Inc., Samoco Downhole Equipment &
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`Engineering, LLC and Michael Jeremy Hellail (“Defendants” or “Samoco”), submit
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`this memorandum in opposition to Plaintiffs’ untimely Motion for Reconsideration.
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`(Rec. Doc. 107). For the following reasons, Plaintiff’s motion should be denied.
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`Plaintiffs bring this motion pursuant to Fed. R. Civ. P. 59(e), which provides
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`that a “motion to alter or amend a judgment must be filed no later than 28 days after
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`the entry of the judgment.” However, Plaintiffs failed to seek timely reconsideration
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`of the Court’s judgment and, consequently, their untimely motion should be denied
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`on this basis alone. Furthermore, as set forth in more detail below, Plaintiffs fail to
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`reference, let alone demonstrate, that any of the circumstances warranting reversal
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`of the Court’s prior judgment pursuant to Rule 59 exist. Instead, Plaintiffs simply
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`rehash rejected arguments, raise new arguments that they chose not to present
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`before, and seek to attach new, self-serving evidence not previously of record.
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`“A Rule 59(e) motion calls into question the correctness of a judgment.” Templet
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`v. HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004). The standard applied in this
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`1
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`Case 4:19-cv-01072 Document 111 Filed on 07/15/21 in TXSD Page 2 of 11
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`Circuit favors the denial of motions to alter or amend a judgment to protect the
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`interest of the finality of judgments. See, e.g., Southern Constructors Group, Inc. v.
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`Dynalectric Company, 2 F.3d 606, 611 (5th Cir. 1993). It is axiomatic that
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`“[r]econsideration of a judgment after its entry is an extraordinary remedy that
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`should be used sparingly” and should not be used “for rehashing evidence, legal
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`theories, or arguments that could have been offered or raised before the entry of
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`judgment.” Templet, 367 F.3d at 479. See also McGee v. CTX Mortg. Co., LLC, No.
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`3:15-CV-1746-L, 2016 WL 8671540, at *2 (N.D. Tex. Apr. 22, 2016) (“Rule 59(e)
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`cannot be used to relitigate old matters, raise arguments or legal theories that could,
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`and should, have been made before the judgment issued, or rehash evidence.”).
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`Instead, a motion to “alter or amend a judgment must clearly establish either a
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`manifest error of law or fact or must present newly discovered evidence.” Simon v.
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`United States, 891 F.2d 1154, 1159 (5th Cir. 1990) (citing Federal Deposit Ins. Corp.
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`v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)). Specifically, a Rule 59(e) motion should
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`not be granted unless the plaintiff can show: (1) an intervening change in controlling
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`law; (2) the availability of new evidence previously not available; or (3) the need to
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`correct a clear error of law or fact or to prevent a manifest injustice. See, e.g., Brown
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`v. DFS Services, LLC, 719 F. Supp. 2d 785 (S.D. Tex. 2010), citing Brown v.
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`Mississippi Co-op. Extension Serv., 89 Fed. Appx. 437, 437 (5th Cir. 2004) (citing
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`cases). A court may grant a motion to reconsider on the basis of newly discovered
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`evidence only if: (1) the facts discovered are of such a nature that they would probably
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`change the outcome; (2) the facts alleged are actually newly discovered and could not
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`Case 4:19-cv-01072 Document 111 Filed on 07/15/21 in TXSD Page 3 of 11
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`have been discovered earlier by proper diligence; and (3) the facts are not merely
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`cumulative or impeaching. Id., citing Infusion Resources, Inc. v. Minimed, Inc., 351
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`F.3d 688, 696–97 (5th Cir. 2003).
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`Here, Plaintiffs have not and cannot satisfy their burden that their motion to
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`alter the judgment should be considered, much less granted according to FRCP 59(e).
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`Furthermore, the Court’s claim constructions were proper, and Plaintiffs now simply
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`wish to relitigate the Markman hearing simply because they are dissatisfied with the
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`result.
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`A. Plaintiffs’ Motion for Reconsideration is Untimely
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`As Plaintiffs candidly concede in their Motion, “motions for reconsideration
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`from interlocutory orders are governed by the standards for Rule 59(e) motions and
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`must be filed within 28 days after entry of the order.” (Red. Doc. 107, p.2, emphasis
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`added, citing Thakkar v. Balasuriya, 2009 WL 2996727, *1 (S.D. Tex. Sept 9, 2009)).
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`Here, however, the Court issued its claim construction order on May 26, 2021 (Rec.
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`Doc. 103), but Plaintiffs did not file their Motion for Reconsideration until June 24,
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`2021 (Rec. Doc. 107) – 29 days after entry of the Court’s order.
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`Consequently, Plaintiffs’ motion is untimely and should be denied on this basis
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`alone. See, e.g., Oliver v. Klein Indep. Sch. Dist., 472 F. Supp. 3d 367, 373 (S.D. Tex.
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`2020) (“The plaintiffs’ Rule 59 motion is untimely because they filed it 29 days after
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`entry of judgment, which the defendants observe is outside the 28-day window
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`permitted under Rule 59(e).”). See also Brown v. Taylor, 569 F. App’x 212 (5th Cir.
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`3
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`Case 4:19-cv-01072 Document 111 Filed on 07/15/21 in TXSD Page 4 of 11
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`2014) (noting that a motion for reconsideration filed 29 days after the entry of the
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`court’s order is “untimely”).
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`B. The ‘312 Patent
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`Even assuming Plaintiffs had properly filed a timely motion for reconsideration,
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`Plaintiffs’ motion must still be denied, as the motion fails to meet the criteria for
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`reversal pursuant to Rule 59.
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`With respect to the ‘312 Patent, Plaintiffs contend that the Court’s construction
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`of the “rotation lug insert” being hollow is incorrect and “creates an ambiguity.” In
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`support, Plaintiffs assert that the “‘hollow’ argument came from Defendants’ attorney
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`arguments with not a shred of evidence via testimony at the Markman hearing. The
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`term ‘hollow’ or ‘hollow tooth’ is not in the testimony evidence of the Markman
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`hearing transcript. Importing such a definition would lead to manifest injustice.”
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`(Rec. Doc. 107, pp. 3-4). However, Plaintiffs’ assertion completely ignores the
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`longstanding rule that intrinsic evidence “is the most significant source of the legally
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`operative meaning of disputed claim language.” Gillette Co. v. Energizer Holdings,
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`Inc., 405 F.3d 1367, 1370 (Fed. Cir. 2005), quoting Vitronics Corp. at 1582. Reliance
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`on extrinsic evidence is proper only if an analysis of the intrinsic evidence fails to
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`resolve ambiguities in a disputed claim term. Id. Therefore, Plaintiffs’ contention that
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`the lack of witness testimony invalidates the Court’s construction is completely
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`erroneous.
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`The intrinsic evidence clearly supports the Court’s construction. It is
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`indisputable that “rotation lug insert” refers to element 16 in the ‘312 patent. As
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`4
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`Case 4:19-cv-01072 Document 111 Filed on 07/15/21 in TXSD Page 5 of 11
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`Defendants argued in their brief to the Court, element 16 cannot be anything other
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`than hollow since it clearly receives and surrounds the internal mandrel as depicted
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`in Fig. 1. Moreover, Plaintiffs’ argument seems to conflate the “rotation lug insert”
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`with the “lugs” at the top of the rotation lug insert and is arguing that the Court’s
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`construction somehow renders these “lugs” as being hollow. As the Court correctly
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`noted, “it is unclear how a member can be ‘mounted in a surrounding relationship
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`over the internal mandrel’ without that member being hollow, which is defined as an
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`‘unfilled space’ or ‘depressed part of a surface.’” (Rec. Doc. 103, p. 45). However, the
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`Court’s construction is indeed accurate as element 16, the rotation lug insert, is
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`clearly hollow as depicted in the exploded view appearing in FIG. 1 of the ‘312 patent
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`below:
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`Case 4:19-cv-01072 Document 111 Filed on 07/15/21 in TXSD Page 6 of 11
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`The Court never determined that the “lugs,” notches or shoulders of the
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`rotation lug insert must be hollow. The Court instead correctly determined that the
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`rotation lug insert 16, which is clearly a collar, must be hollow.
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`
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`In support of their erroneous arguments, Plaintiffs attempt to submit an
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`annotated, cross-sectional drawing of the ‘312 tool that is neither within the patent
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`specification nor in evidence. Therefore, the drawing should be disregarded. Plaintiffs
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`now offer the concocted drawing to somehow support their assertion that “the spline
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`in the ‘343 patent must also be hollow insofar as it also receives the internal mandrel
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`through it.” (Rec. Doc. 107, p. 3). The pipe of the ‘343 patent includes a spline and is
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`hollow to receive an internal mandrel. Nowhere in the ‘343 patent is the spline
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`described as hollow or receiving any other component. Construing the spline as
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`hollow would be nonsensical.
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`
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`Plaintiffs further argue that the Court’s reliance upon the “Vintage Drum
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`Reference, https://vintagedrumreference.com/lug-inserts/” is misplaced because the
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`website does not relate specifically to BOP test tools. Plaintiffs argue that instead
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`“the oil tool industry should be the focus” and suggest that the Court instead accept
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`the self-serving testimony of their hired expert. Plaintiffs however can offer no
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`independent evidence whatsoever that supports their construction as being somehow
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`standard in “the oil tool industry.” Moreover, Plaintiffs offer no evidence whatsoever
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`that purports to construe or define rotation lug insert but instead simply focus on
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`“lug.” The court construed the “rotation lug insert” using Plaintiffs’ patent
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`specification and drawings. Plaintiffs had the opportunity to chose and define the
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`6
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`Case 4:19-cv-01072 Document 111 Filed on 07/15/21 in TXSD Page 7 of 11
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`claimed terms as they deemed fit when they drafted their patent and chose the ones
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`found in their specification. They cannot now claim the terms actually mean
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`something else according to biased, self-serving, and untimely expert testimony.
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`C. Lug Engagement Area
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`
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`Plaintiffs argue that the wording “due to their angled notches” should be
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`eliminated from the Court’s construction of “lug engagement area.” Plaintiffs state
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`that they accept the Court’s construction on p. 54 wherein such phrase was omitted
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`but contest the construction on p. 52 that included the phrase. The omission on p. 54
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`is clearly inadvertent since “due to their angled notches” appears in the concluding
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`sentence on p. 52 and in the chart immediately thereafter. Furthermore, the
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`preceding paragraph on p. 51 includes significant analysis referencing the
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`specification describing angular notches and unidirectional rotation. (Rec. Doc. 103,
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`pp. 51-52).
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`Plaintiffs further argue that the Court improperly imported the limitations of
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`claim 3 into claim 4, which is prohibited by the doctrine of “claim differentiation.”
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`“Claim differentiation” is a presumption that an independent claim should not be
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`construed as requiring a limitation added by a dependent claim. Curtiss-Wright Flow
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`Control Corp., v. Velan, Inc., 438 F. 3d 1374, 1380 (Fed. Cir. 2006), citing Nazomi
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`Commc'ns, Inc. v. Arm Holdings, PLC., 403 F.3d 1364, 1370 (Fed.Cir.2005). “Claim
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`differentiation normally means that limitations stated in dependent claims are not
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`to be read into the independent claim from which they depend.” Id., citing Karlin
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`Tech., Inc. v. Surgical Dynamics, Inc.,177 F.3d 968, 971–72 (Fed.Cir.1999);
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`7
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`Case 4:19-cv-01072 Document 111 Filed on 07/15/21 in TXSD Page 8 of 11
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`Phillips,415 F.3d at 1314–15. “Thus, the claim differentiation tool works best in the
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`relationship between independent and dependent claims.” Id., citing, Liebel–
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`Flarsheim Co. v. Medrad, Inc.,358 F.3d 898, 910 (Fed.Cir.2004); Sunrace Roots Enter.
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`Co. v. SRAM Corp.,336 F.3d 1298, 1302-03 (Fed.Cir.2003)). The doctrine is based
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`upon 35 U.S.C. §112 which mandates that a dependent claim must add a limitation
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`to those recited in the independent claim: “[A] claim in dependent form shall contain
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`a reference to a claim previously set forth and then specify a further limitation of the
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`subject matter claimed.” (emphasis added). Because claim drafters can also use
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`different terminology to define the exact same subject matter, “claim differentiation”
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`is a guide, not a rigid rule. Id. at 1380.
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`
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`The doctrine of claim differentiation does not remotely apply in this instance.
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`Claim 3 of the ‘312 patent does not depend from claim 4 but instead depends from
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`claim 1. Claim 4 is an independent claim separate and distinct from claims 1 and 3.
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`Regardless, claim 3 does not include the angled notches set forth in Court’s claim
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`constructions but instead “wherein the lug cutout has an angled aspect preventing
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`engagement of the rotation lug insert when the internal mandrel is rotated to the
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`left.” The claim does not attempt to further define “the lug engagement area” and no
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`claim that depends from claim 4 makes such attempt. Therefore, the limited doctrine
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`of claim differentiation does not apply.
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`Plaintiffs further argue that “angled notches” cannot be found in the
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`prosecution history and therefore cannot be read into the claims. The argument
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`ignores the longstanding rule that the specification is the single best guide to the
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`8
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`Case 4:19-cv-01072 Document 111 Filed on 07/15/21 in TXSD Page 9 of 11
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`meaning of a claim term. Phillips v. AWH Corp., 415 F.3d 1303, 1315
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`(Fed.Cir.2005) (en banc) (citing Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576,
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`1582 (Fed.Cir.1996)).
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`D. The ‘343 patent
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`In their motion, Plaintiffs simply rehash old arguments that “spline” in the
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`‘343 patent must mean “one or more spaced ridges” instead of a plurality of
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`circumferentially spaced ridges or projections. Plaintiffs ignore the drawings of the
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`‘343 patent which clearly depict the circumferentially spaced ridges. Moreover,
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`Plaintiffs ignore the standard dictionary definition of spline “as any of a series of
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`uniformly spaced ridges on a shaft, parallel to its axis and fitting inside corresponding
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`grooves in the hub of a gear.” Splines are designed to be formed in groups in order to
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`allow two components to seamlessly intermesh and rotate in unison. And Plaintiffs
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`again ignore the fact that such elements were previously described as “a plurality of
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`circumferentially spaced teeth” in a prior, related provisional patent application. The
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`Court properly determined that the pertinent dictionary definitions define spline as
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`“a series of projections or ridges,” not a ridge or projection.
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`
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`At least one other district court has clarified the meaning of a spline:
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`“In the old days when we had water wheels turning our—grinding our grain
`throughout New England and doing various mechanical things, the water
`wheel would turn an axle. And along the length—that simply means axially
`oriented—along the length of that axle, if it were a wooden axle, the mill owner
`would nail lengths of wood and it would put spaces between those lengths of
`wood which would turn the axle into in effect a giant gear.” MacNeill
`Engineering Co., Inc. v. Trisport, Ltd., 126 F. Supp. 2d 51 (D. Mass. 2001).
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`If anything, “spline” should be construed as a plurality or series of
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`Case 4:19-cv-01072 Document 111 Filed on 07/15/21 in TXSD Page 10 of 11
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`“longitudinal or axially oriented” projections or ridges. Furthermore, the specification
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`depicts the spline extending longitudinally along the first pipe as indicated by Figures
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`5, 11-13. And the entire specification provides that during operation of the tool, the
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`splines inter-engage when the sub 16 axially receives the pipe 14. Neither the patent
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`specification nor numerous dictionary definitions limit the construction of spline to
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`one ridge.
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`E. Conclusion
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`Even assuming Plaintiffs’ untimely Rule 59(e) motion were filed within the
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`mandatory deadline, Plaintiffs have not remotely demonstrated that amending or
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`altering the judgment is warranted. Plaintiffs simply wish to relitigate the Markman
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`hearing by proffering new, irrelevant, and self-serving evidence. However, Plaintiffs’
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`asserted constructions are not supported by law or evidence. Accordingly, Plaintiffs’
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`motion for reconsideration should be denied.
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`RESPECTFULLY SUBMITTED,
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`Respectfully Submitted:
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`
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`/s/ Kenneth L. Tolar
`Kenneth L. Tolar (La. Bar No. 22641)
`Brad E. Harrigan (La. Bar No. 29592) (T.A.)
`TOLAR HARRIGAN & MORRIS LLC
`1055 St. Charles Avenue, Suite 208
`New Orleans, Louisiana 70130
`Telephone: (504) 571-5317
`bharrigan@nolaipa.com; ktolar@nolaipa.com
`Counsel for Defendants, Samoco Oil
`Tools,
`Inc.,
`Samoco
`Downhole
`Equipment & Engineering, LLC and
`Mohammed Salem Hellail
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`Case 4:19-cv-01072 Document 111 Filed on 07/15/21 in TXSD Page 11 of 11
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`CERTIFICATE OF SERVICE
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`
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`I hereby certify that on July 15, 2021, a copy of the foregoing pleading was filed
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`electronically with the Clerk of Court using the CM/ECF system. Notice of this filing
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`will be sent to all counsel of record by operation of the court's electronic filing system.
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`
`/s/ kenneth l. tolar
`Kenneth L. Tolar
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`11
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`

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