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FINNSUGAR BIOPRODUCTS v. AMALGAMATED SUGAR CO.

October 10, 2002

FINNSUGAR BIOPRODUCTS, INC., PLAINTIFF,
V.
THE AMALGAMATED SUGAR COMPANY, LLC, AND ARI, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

BACKGROUND

On March 28, 2001, Judge Coar granted Defendants' motion for partial summary judgment, holding that Patent No. 5,795,398 ("the '398 patent") was invalid under the on sale bar. See Finnsugar Bioproducts, Inc. v. Amalgamated Sugar Company, LLC, No. 97 C 8746, 2001 WL 303683 (N.D. Ill. March 28, 2001) (hereinafter "Finnsugar I"). Plaintiff subsequently moved for reconsideration of this order in light of Group One, Ltd. v. Hallmark Cards, Inc., 254 F.3d 1041 (Fed. Cir. 2001), or, in the alternative, for certification of the issue for appeal. On March 25, 2002, Judge Coar denied that motion. See Finnsugar Bioproducts, Inc. v. Amalgamated Sugar Company, LLC, No. 97 C 8746, 2002 WL 460812 (N.D. Ill. Mar. 26, 2002) (hereinafter "Finnsugar II"). A detailed factual background of this case is set forth in Judge Coar's opinions, and will not be reiterated here. See Finnsugar I and Finnsugar II. On August 30, 2002, the case was transferred from Judge Coar to this Court, and shortly thereafter, Plaintiff filed a renewed motion for reconsideration, this time in light of In re Kollar, 286 F.3d 1326 (Fed. Cir. 2002).*fn1

STANDARD OF REVIEW

As the party seeking reconsideration, Finnsugar bears a heavy burden. The Seventh Circuit has repeatedly cautioned that "[m]otions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence." Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir. 1985) (quotation omitted); see also In re Oil Spill by "Amoco Cadiz" Off Coast of France on March 16, 1978, 794 F. Supp. 261, 267 (N.D. Ill. 1992) ("motions to reconsider are not at the disposal of parties who want to `rehash' old arguments."). Accordingly, a court will entertain a motion for reconsideration only where the moving party can establish that the law or facts have changed significantly since the issue was presented, or the court has "patently misunderstood a party," has "made a decision outside the adversarial issues presented," or has "made an error not of reasoning, but of apprehension." Bank of Waunakee v. Rochester Cheese Sales, 906 F.2d 1185, 1191 (7th Cir. 1990). Whether to grant reconsideration is committed to the sound discretion of the court. Cause Nationale de Credit v. CBI Industries, Inc., 90 F.3d 1264, 1270 (7th Cir. 1996).

ANALYSIS

Judge Coar previously granted Defendants' motion for partial summary judgment finding that the '398 patent was invalid under the on sale bar. Section 102(b) of the Patent Act of 1952 precludes a person from patenting an invention that has been "on sale" more than one year. The Supreme Court has articulated a two part test for determining the applicability of the on sale bar. "First, the product must be the subject of a commercial offer for sale. . . . Second, the invention must be ready for patenting. That condition may be satisfied in at least two ways: [a] by proof of reduction to practice before the critical date, or [b] by proof that prior to the critical date the inventor had prepared drawings or other descriptions of the invention that were sufficiently specific to enable a person skilled in the art to practice the invention." Pfaff v. Wells Electronics, Inc., 525 U.S. 55, 61 (1998). Judge Coar found that defendants had satisfied both of these elements. See Finnsugar I and Finnsugar II. Plaintiffs now move this Court to reconsider the findings on each of these elements.

A. In re Kollar

Plaintiff's principal basis for reconsideration is the opinion by the Federal Circuit in In re Kollar, arguing that the Federal Circuit in Kollar "changed the law pertaining to the on sale bar." (See R. 167-1, Pl.'s Renewed Mot. for Reconsideration, at 1.) Specifically, Plaintiff suggests that In re Kollar stands for the proposition that there is a distinction between process claims and product claims and that merely granting a license to an invention, without more, does not trigger the on sale bar under 35 U.S.C. § 102 (b). (See R. 164-1 Pl.'s Mem. in Support of Renewed Mot. for Reconsideration, at 7.)

As Defendants point out, however, In re Kollar did not actually "change the law" regarding what constitutes an offer to sell sufficient to invoke the on sale bar. To the contrary, the Federal Circuit's opinion expressly recognized that its holding was based on precedent, including Mass-Hamilton Group v. LaGard, Inc., 156 F.3d 1206 (Fed Cir. 1988). See In re Kollar, 286 F.3d at 1330 ("We have held that merely granting a license to an invention, without more, does not trigger the on-sale bar of § 102(b).") (emphasis added; citing Mass-Hamilton Group). Thus, it cannot be said that In re Kollar "changed the law" regarding the on sale bar.

Moreover, earlier in this case, Plaintiff raised — and Judge Coar rejected as distinguishable — several of the cases cited by the Federal Circuit in In re Kollar. See, e.g., Finnsugar, 2001 WL 303683, at *6 (distinguishing Mass-Hamilton). In re Kollar, therefore, does not constitute adequate grounds for reconsideration.

B. The "Ready for Patenting" Issue

Plaintiff also suggests that reconsideration should be granted because the M9B3 process underlying the '398 patent was not "ready for patenting." Specifically, Plaintiff argues that this Court "erroneously concluded that the invention was `ready for patenting,' because the inventor had rendered a one page flow diagram of the M9B3 process . . . [and] there was evidence . . . that further development work and verification was done on the invention." (See R. 164-1 Pl.'s Mem. in Support of Renewed Mot. for Reconsideration, at 10.) Judge Coar, however, specifically rejected this argument as a basis for reconsideration in his March 25, 2002 order, observing that ...


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