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Certusview Technologies, LLC v. S&N Locating Services, LLC

United States District Court, E.D. Virginia, Norfolk Division

August 10, 2016

CERTUSVIEW TECHNOLOGIES, LLC, Plaintiff,
v.
S&N LOCATING SERVICES, LLC, and S&N COMMUNICATIONS, INC., Defendants.

          OPINION AND ORDER

          MARK S. DAVIS UNITED STATES DISTRICT JUDGE.

         On January 21, 2015, the Court issued an Opinion and Order, ECF No. 250, in this patent infringement case granting Defendants S&N Locating Services, LLC and S&N Communications, Inc.'s ("S&N") Motion for Judgment on the Pleadings, ECF No. 197, and finding that each of the asserted claims of the Patents-in-Suit were invalid because they did not claim patent-eligible subject matter pursuant to 35 U.S.C. § 101 ("Section 101 Opinion and Order"). Plaintiff CertusView Technologies, LLC ("CertusView") now seeks reconsideration and reversal of the portion of such Opinion and Order finding that Claim 1 of United States Patent No. 8, 340, 359 (w, 359 Patent") was patent ineligible. Mot. for Partial Recons. of J. of Patent Ineligibility under 35 U.S.C. § 101, ECF No. 533. CertusView asserts that reconsideration and reversal of such finding is appropriate because: (1) the Court of Appeals for the Federal Circuit's recent decision of Enfish, LLC v. Microsoft Corporation, 822 F.3d 1327 (Fed. Cir. 2016), alters the controlling test for patent eligibility; and (2) evidence produced during the subsequent bench trial in this matter, addressing S&N's declaratory judgment counterclaim for inequitable conduct, is substantially different from the evidence available at the time the Court decided S&N's Motion for Judgment on the Pleadings. CertusView has filed a request for oral argument on this Motion, which S&N opposes. CertusView's Request for Mot. Hearing, ECF No. 228. After examining the briefs and the record, the Court determines that oral argument is unnecessary because the facts and legal contentions are adequately presented and oral argument would not aid in the decisional process. Fed.R.Civ.P. 78(b); E.D. Va. Loc. Civ. R. 7 (J). For the reasons set forth below, the Court DENIES CertusView's Motion.

         I. FACTUAL AND PROCEDURAL BACKGROUND[1]

         CertusView holds the five related patents, involving technology for prevention of damage to underground infrastructure, at issue in this matter: the '359 Patent, United States Patent No. 8, 265, 344 ("'344 Patent"), United States Patent No. 8, 290, 204 ("x204 Patent"), United States Patent No. 8, 532, 341 ("*341 Patent"), and United States Patent No. 8, 407, 001 ('''001 Patent") (collectively, the "Patents-in-Suit"). August 2, 2016 Op. & Order, 17-18, ECF No. 542. The Patents-in-Suit issued in 2012 and 2013, prior to the United States Supreme Court's seminal 2014 patent-ineligibility decision in Alice Corporation Priority Limited v. CLS Bank International, 134 S.Ct. 2437 (2014).

         CertusView's products were developed as a means to improve record-keeping and documentation of "locate operations, " id. at 23, that is, "the application of paint, flags, or some other marking object or material to indicate the presence of an underground facility, " Joint Claim Construction Chart, 2, ECF No. 101-2. Specifically, the Patents-in-Suit claim inventions related to CertusView's e-Sketch technology. August 2, 2016 Op. & Order at 24. Stated broadly, the e-Sketch technology allows locators to document a locate operation more accurately and to create a searchable electronic record that includes such documentation and additional specific data regarding the locate operation. Id.

         The '359 patent is entitled "Electronic Manifest of Underground Facility Locate Marks." Am. Compl. Ex. C, '359 Patent, ECF No. 55-2 [hereinafter'''359 Patent"]. The '359 Patent claims methods and apparatus for generating a searchable electronic record of a locate operation. The only asserted claim from the '359 Patent is Claim 1. Claim 1, an independent method claim, recites:

A method for generating a searchable electronic record of a locate operation performed by a locate technician, the locate operation comprising identifying, using at least one physical locate mark, a presence or an absence of at least one underground facility within a dig area, wherein at least a portion of the dig area may be excavated or disturbed during excavation activities, the method comprising:
A) electronically receiving an aerial image of a geographic area comprising the dig area, at least a portion of the received aerial image being displayed on a display device;
B) adding to the displayed aerial image at least one digital representation of the at least one physical locate mark, applied to ground, pavement or other surface by the locate technician during the locate operation, so as to generate a marked-up digital image including the at least one digital representation of the at least one physical locate mark; and
C) electronically transmitting and/or electronically storing the searchable electronic record of the locate operation, wherein the searchable electronic record comprises the marked-up digital image and a data set, and wherein the data set comprises:
a set of geographic points along a marking path of the at least one underground facility, the set of geographic points including geographical coordinates corresponding to the at least one physical locate mark;
a property address associated with the at least one physical locate mark;
a timestamp indicative of when the locate operation occurred;
a name of the locate technician; a name of a company responsible for performing the locate operation; and a ticket number associated with the locate operation.

'359 Patent, Col. 17:53-18:21.

         On May 29, 2013, CertusView filed a patent infringement action against S&N. Compl. ECF No. 1. On December 6, 2013, CertusView filed an amended complaint, alleging infringement of the five Patents-in-Suit. See Am. Compl., ECF No. 55. On December 23, 2013, S&N filed an Answer denying CertusView's allegations of infringement and asserting counterclaims against CertusView, seeking declaratory judgments of non-infringement and invalidity regarding all five Patents-in-Suit. S&N's Answer, Affirmative Defenses, and Countercls., ECF No. 61.[2]After the Supreme Court issued its June 2014 Alice decision, on October 28, 2014, following a Markman hearing, issuance of a claim construction order, and a limitation on the number of asserted patent claims, S&N filed a Motion for Judgment on the Pleadings, pursuant to Federal Rule of Civil Procedure 12(c), contending that the Patents-in-Suit were invalid as they did not claim patentable subject matter under 35 U.S.C. § 101. ECF No. 197. On January 21, 2015, the Court granted S&N's Motion for Judgment on the Pleadings and found that all of the asserted claims of the Patents-in-Suit were invalid for failure to claim patentable subject matter under 35 U.S.C. § 101, including Claim 1 of the '359 Patent. Sect. 101 Op. & Order, ECF No. 250.

         On March 8, 2016, the matter proceeded to a five-day bench trial on S&N's declaratory judgment counterclaim against CertusView for inequitable conduct. On June 15, 2016, after the conclusion of the bench trial, CertusView filed its Motion for Partial Reconsideration of Judgment of Patent Ineligibility under 35 U.S.C. § 101. ECF No. 533. On June 30, 2016, S&N filed its Response in Opposition to CertusView's Motion for Partial Reconsideration. ECF No. 536. Finally, on July 15, 2016, CertusView filed its Rebuttal Brief in Support of its Motion for Partial Reconsideration. ECF No. 540. Therefore, CertusView's Motion for Partial Reconsideration is ripe for review.

         II. STANDARD OF REVIEW

         A. Federal Rule of Civil Procedure 54(b)

         CertusView moves for reconsideration under Federal Rule of Civil Procedure 54(b), which governs reconsideration of interlocutory orders or decisions.[3] Under Rule 54(b), a district court "'retains the power to reconsider and modify its interlocutory orders ... at any time prior to final judgment.'" TomTom, Inc. v. APT Sys. GmbH, 17 F.Supp.3d 54 5, 546 (E.D. Va. 2014) (quoting Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 514-15 (4th Cir. 2003)).[4] The power to grant relief under Rule 54(b) "is committed to the discretion of the district court." Am. Canoe Ass'n, 326 F.3d at 515 (citing Moses H. Cone Mem. Hosp. v. Mercury Const. Corp., 460 U.S. 1, 12 (1983)). However the law of the case doctrine, among others, has "evolved as a means of guiding that discretion." Id. The Court of Appeals for the Fourth Circuit has found that, when applying the law of the case doctrine, a court generally may not depart from its previous ruling unless "Ml) a subsequent trial produces substantially different evidence, (2) controlling authority has since made a contrary decision of law applicable to the issue, or (3) the prior decision was clearly erroneous and would work manifest injustice.'" Sejman v. Warner-Lambert Co., 845 F.2d 66, 69 (4th Cir. 1988) (quoting EEOC v. Int'1 Longshoremen7 s Assoc., 623 F.2d 1054 (5th Cir. 1980)); accord Am. Canoe Ass'n, 326 F.3d at 515 (citing Sejman, 845 F.3d at 69); Evans v. Trinity Indus., Inc., 148 F.Supp.3d 542, 544 (E.D. Va. 2015) (listing cases in support). "Absent a significant change in the law or the facts since the original submission to the court, granting a motion for reconsideration is only appropriate where, for example, the court 'has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension.'" Evans, 148 F.Supp.3d at 544 ...


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