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NATIONAL BUSINESS SYSTEMS v. AM INTERN.

April 29, 1985

NATIONAL BUSINESS SYSTEMS, INC., ET AL., PLAINTIFFS,
v.
AM INTERNATIONAL, INC., DEFENDANT. NATIONAL BUSINESS SYSTEMS, INC., ET AL., PLAINTIFFS, V. AM INTERNATIONAL, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Bua, District Judge.

ORDER

Before the Court is the plaintiff's motion, pursuant to Fed.R.Civ.P. 60(b), for relief from this Court's September 13, 1982 judgment order. For the reasons stated herein, the plaintiff's motion is denied.

I. FACTS

  This is a patent infringement action which involves credit
card imprinters. This Rule 60(b) motion involves a single
patent, No. 3,272,120 ('120) entitled "Address Printing
Machines with Roller Platens," issued to the defendant AM
International (AM) (as assignee of the inventor, D.W. Johnson)
on September 13, 1966 from an application filed October 22,
1964. After an 11-day trial to the bench, the district court
issued a memorandum opinion on August 26, 1982. National
Business Systems, Inc. v. AM International, Inc., 546 F. Supp. 340
 (N.D.Ill. 1982). The Court concluded that Claim 7 of AM's
'120 patent was valid and infringed by plaintiff's devices. The
Court enjoined the plaintiff NBS from further manufacture and
sale of the infringing imprinters and ordered an accounting as
to the amount of damages suffered by AM by reason of NBS'
infringement of Claim 7. Finally, the Court certified its
judgment for immediate appeal pursuant to Fed.R.Civ.P. 54(b).

NBS appealed both the Court's judgment of validity and infringement and its denial of attorneys' fees and costs. In its appeal, NBS raised five grounds for reversal: (1) that AM is collaterally estopped to assert that Claim 7 is valid, having unsuccessfully contested the issue in a reissue proceeding before the Patent Office; (2) that Claim 7 is invalid for obviousness under 35 U.S.C. § 103; (3) that Claim 7 is invalid for anticipation under 35 U.S.C. § 102(a) and for being "on sale" for more than a year as prohibited by 35 U.S.C. § 102(b); (4) that the district court erred in finding that Claim 7 was infringed under the doctrine of equivalents; and (5) that the district court erred in denying NBS attorneys' fees and costs provided for under 28 U.S.C. § 1927 and 35 U.S.C. § 285, On September 20, 1984, the Seventh Circuit Court of Appeals issued an opinion affirming this Court's opinion in its entirety and remanding the case for a determination of damages. National Business Systems, Inc. v. AM International, Inc., 743 F.2d 1227 (7th Cir. 1984).

NBS now brings this motion under Rule 60(b) seeking relief from this Court's September 13, 1982 judgment order. At bottom, NBS sets forth two grounds in support of its motion: (1) that defendant AM's misconduct before and misrepresentations to this Court constitute a fraud on this Court and therefore warrant vacating the prior judgment order; and (2) the change in decisional law under the decisions of the Federal Circuit, which occurred after the prior judgment order, require a finding of fraud on the Patent Office by AM and a consequent vacating of the prior judgment order.

II. DISCUSSION

As a general rule, Rule 60(b) requires a showing of exceptional circumstances or a grievous wrong evoked by new and unforeseen conditions. C.K.S. Engineers, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1204-05 (7th Cir. 1984). The decision to grant relief under Rule 60(b) is left to the sound discretion of the trial court, and review of a trial court's decision to grant or deny Rule 60(b) relief is subject to an abuse of discretion standard. Inryco, Inc. v. Metropolitan Engineering Co., 708 F.2d 1225, 1230 (7th Cir. 1983). Relief under Rule 60(b) is limited to one of the six grounds specified in the rule. DeFilippis v. United States, 567 F.2d 341, 343 (7th Cir. 1977).

In the present case, it is unclear and plaintiff has not specified which one of the six grounds it wishes to invoke under Rule 60(b). There are three possible grounds for relief under plaintiff's arguments: (1) Rule 60(b)(3) which covers fraud, misrepresentation, or other misconduct of an adverse party; (2) Rule 60(b)(5) which covers relief from a final judgment when "a prior judgment upon which it was based has been reversed or otherwise vacated . . ."; and (3) Rule 60(b)(6) which covers any other reason justifying relief from the judgment.

A. Rule 60(b)(3)

Rule 60(b) provides in pertinent part: "The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken." The court may not extend the time limits prescribed in Rule 60(b). Fed.R.Civ.P. 6(b); U.S. ex rel. Bonner v. Warden, Stateville Corr., 78 F.R.D. 344, 346 (N.D.Ill. 1978). The time limitation set by Rule 60(b)(3), founded on the judicial interest in speedy disposition and finality, is mandatory and bars consideration of any 60(b)(3) motion filed more than one year after the Court's judgment. Id. In the present case, since plaintiff filed his Rule 60(b)(3) motion on. February 13, 1985, and the judgment he seeks to set aside was entered on September 13, 1982, plaintiff's motion under Rule 60(b)(3) is untimely under the one-year time limitation.

B. Rules 60(b)(5) and 60(b)(6)

Plaintiff argues that Federal Circuit opinions issued subsequent to this Court's prior judgment order make that order clearly erroneous and mandate vacating it in order to avoid a clear injustice. According to the plaintiff, these decisions change the law regarding the defense of fraud on the Patent Office. Plaintiff asserted this defense in order to avoid defendant's charges of infringement. The plaintiff now argues that the Court was incorrect when it rejected plaintiff's assertion that defendant had committed fraud on the Patent Office, in light of the subsequent Federal Circuit decisions. ...


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