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