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Alien Technology Corp., A Delaware v. Intermec

December 15, 2010

ALIEN TECHNOLOGY CORP., A DELAWARE CORPORATION, PLAINTIFF, INTERMEC'S
v.
INTERMEC, INC., A DELAWARE CORPORATION,
INTERMEC TECHNOLOGIES CORPORATION, A WASHINGTON CORPORATION, AND INTERMEC IP CORP., A DELAWARE CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Ralph R. Erickson, Chief District Judge United States District Court

MEMORANDUM OPINION AND ORDER ON MOTION FOR RECONSIDERATION

INTRODUCTION AND PROCEDURAL BACKGROUND

Before the Court is Defendants' (collectively hereafter "Intermec") Motion for Reconsideration of the Court's Claim Construction Order and Entry of Summary Judgment of Non-Infringement regarding U.S. Patent No. 5,030,807 (hereafter "'807 patent") (Doc. #907).

On June 27, 2008, this Court entered a Claim Construction Order (Doc. # 466) (hereafter "CC Order"). The Court thereafter, based in part on the CC Order, granted Plaintiff Alien Technology Corp.'s (hereafter "Alien") Motion for Partial Summary Judgment of Non-Infringement of the '807 patent (Doc. #793). Following an ex parte re-examination of the '807 patent before the United States Patent and Trademark Office (hereafter "USPTO"), Intermec seeks reconsideration of the CC Order and the Summary Judgment Order asserting that the guidance of the USPTO undermines the reasoning of the Court's previous orders. Alien has filed a brief in opposition (Docs. #908, 909).

INTERMEC'S ARGUMENTS

Intermec contends the Court should alter or amend its previous Order granting partial summary judgment of non-infringement and portions of the CC Order because the USPTO findings are "fundamentally incompatible" with these Orders (Doc. #908, p. 5). Intermec asserts that the Court and the USPTO should use the same standards when construing the claims, and that the Court should defer to the USPTO's expertise as expressed in the reconsideration. As a result, the Court should adopt the USPTO's construction of the claims.

SUMMARY OF DECISION

Intermec has failed to meet the high standard of demonstrating a "manifest error of law or fact" to warrant reconsideration of the Court's previous Orders. Intermec has also failed to act with due diligence, rendering reconsideration inappropriate. Intermec's Motion for Reconsideration is DENIED.

FACTUAL BACKGROUND

This is an action seeking a declaration of non-infringement and invalidity of several patents, including the '807 patent owned by Intermec (Doc. # 1). The patents relate to radio frequency identification (hereafter "RFID") technology that uses communication by radio waves to exchange information between a terminal and a tagged object for identification and tracking. Alien is a manufacturer of RFID tags and owns a manufacturing plant in Fargo. Intermec is a company that owns a number of patents, including patents related to RFID technology. The '807 patent is a RFID patent owned by Intermec.

Intermec, after consolidation of this action with a Delaware case, answered Alien's complaint. Intermec also asserted a counterclaim for infringement of the '807 patent (Doc. # 110).

On April 25, 2007, an unnamed third party submitted a request to the USPTO for an ex parte reexamination of the '807 patent (Doc. # 909, Exh. A, Becker Declaration). On September 25, 2007, the USPTO granted the request for re-examination (Doc. #909, Exh. B, Becker Declaration). Even though Intermec had full knowledge of the USPTO proceedings, it did not seek a stay of the infringement action while the re-examination pended, nor did it inform the Court or Alien that the process was taking place.

Consequently, this Court held a Markman hearing from May 14-16, 2008 (Docs. #448, 449, & 451). At the hearing, the parties asserted the dispute centered on the construction of two phrases: "remote object" and "upon receipt of said RF signal". The CC Order construed these two disputed terms (Doc. # 466, pp. 35-42). Following the entry of the CC Order, Intermec withdrew its infringement claim on the '807 patent, conceding that "as construed" the '807 Patent was not infringed, but reserving only its right to appeal the Court's claim construction (Doc # 686).

On December 18, 2008, the USPTO mailed its Office Action on the ex parte re-examination (Doc. #909, Exh. C, Becker Declaration). The USPTO determined claims one, four, five, and six are subject to re-examination; claims four, five, and six are patentable and/or confirmed; and claim one is rejected (Doc. #909, Exh. C, Becker Declaration). The USPTO's ...


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