fact by which the Court was misled." Plaintiff cites
defendant's proposed findings of fact number 92 and number 38S
as evidence of AM's misrepresentations to the Court. These
allegations of AM's misrepresentations are clearly an attempt
for relief under 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
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. Therefore, plaintiff essentially argues that a
post-judgment change in decisional law mandates vacating the
judgment order under either Rule 60(b)(5) or 60(b)(6).
The second clause of subsection (b)(5) of Rule 60 contains
language which initially seems to support the plaintiff's
claim for relief because of a change in the law. That clause
provides for relief from a final judgment when "a prior
judgment upon which it was based has been reversed or
otherwise vacated. . . ." However, DeFilippis v. United States,
567 F.2d 341 (7th Cir. 1977) disposes of plaintiff's claim for
relief here. In DeFilippis, the U.S. Marine Corps was
permanently enjoined from enforcing its policy prohibiting
reservists from wearing short hair wigs to cover long hair
while attending summer training camp. After the injunction was
issued, the U.S. Supreme Court decided Kelley v. Johnson,
425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976), which upheld
the validity of police department hair grooming standards
similar to those of the Marine Corps. As part of its decision,
the court held that the burden was not on the government to
justify the regulation, but rather that the burden was on the
plaintiffs to demonstrate the absence of a rational connection
between the regulation and its purported purpose.
Six months after Kelley was decided, the Marine Corps moved
pursuant to Rule 60(b)(5) and (b)(6) to vacate the district
court's earlier order, stating that "because of the recent
Supreme Court ruling in the case of Kelley v. Johnson, . . . it
would be inequitable to continue to enforce the permanent
injunction. . . ." DeFilippis v. U.S., supra, 567 F.2d at 342.
The government argued that Kelley had changed the law
concerning the burden of proof. Id. The government, however,
neither filed affidavits nor offered testimony showing how
continued enforcement of the injunction was inequitable. Id.
In denying the motion under Rule 60(b)(5), the Seventh
Circuit Court of Appeals rejected the government's argument
that Kelley represented a post-judgment change in decisional
law sufficient to vacate the prior judgment order. Id. at
343-44. The Seventh Circuit reasoned that Rule 60(b)(5) "does
not help the Government here because Kelley v. Johnson cannot
be considered a `prior judgment' and therefore it cannot be
said that the order granting the injunction in the instant case
`was based' on Kelley." Id. at 343 n. 4. The Seventh Circuit
went further to define "prior judgment":
For a decision to be "based on" a prior judgment
within the meaning of Rule 60(b)(5), the prior
judgment must be a necessary element of the
decision, giving rise, for example, to the cause
of action or a successful defense. . . . It is
not sufficient that the prior judgment provides
only precedent for the decision. . . . [A] change
in applicable law does not provide sufficient
basis for relief under [Rule] 60(b)(5).
Lubben v. Selective Service System, 453 F.2d 645,
650 (1st Cir. 1972).
This Court interprets DeFilippis as a very narrow reading of
Rule 60(b)(5). In light of the Seventh Circuit's reasoning
above in DeFilippis, it appears that Rule 60(b)(5) relief is
appropriate only when the prior judgment is seeking to be
enforced or it provides the basis for res judicata or
collateral estoppel on the cause of action or a defense.
Neither situations involving a prior judgment are present in
In the present case, there is no prior judgment which has
been explicitly reversed or vacated. Plaintiff might argue
that there is an implied reversal of the old standard for
fraud on the Patent Office. However, the standard for fraud on
the Patent Office is at best precedent for the Court's
decision and does not rise to the level of a "prior judgment"
as defined in DeFilippis. Therefore, the Court rejects NBS'
argument under Rule 60(b)(5) that relief is appropriate on the
basis of a change in post-judgment decisional law in the
standard for fraud on the Patent Office.
For the same reasons, the Court rejects NBS' claim for
relief under Rule 60(b)(6). Courts are generally agreed that
a change in the law after entry of judgment does not alone
justify relief under (b)(6). Id. at 343 n. 5. Therefore,
plaintiff's Rule 60(b)(6) motion is also denied.
For the reasons stated above, plaintiff's motion for relief
under Rule 60(b) is denied.
IT IS SO ORDERED.
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