UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SUNDANCE, INC., and

MERLOT TARPAULIN AND SIDEKIT

MFG. CO., INC.,

Plaintiffs,

-vsDE MONTE FABRICATING, LTD.;

QUICK DRAW TARPAULIN SYSTEMS,

INC. and WALTER DE MONTE,

Defendants.

_____________________________________/

Case No. 02-73543

Hon: AVERN COHN

MEMORANDUM AND ORDER

DENYING DEFENDANTS’ MOTION UNDER FED. R. CIV. P. 59(e)

I.

A.

This is a patent case involving U.S. Patent No. 5,026,109, Segmented Cover

System, Claim 1 being the paradigm claim. The complaint was filed on September 4,

2002. As of this date, it has generated 273 docket entries. The Court has made at

least thirteen (13) substantive decisions. On May 1, 2006, the jury found Claim 1 of the

patent invalid and infringed. Both parties vigorously challenged the verdict with posttrial motions. As will be explained, the instant motion is defendants’ third attempt to

overturn the jury’s infringement verdict.

During the pendency of this case, the patent-in-suit was the subject of two (2)

reexamination proceedings initiated by defendants. In both, Claim 1 was found
1

The parties dispute whether the motion was procedurally proper.

2

patentable. During the course of the second reexamination proceeding on August 25,

2006, plaintiffs filed a response to an Office Action filed July 28, 2006, rejecting Claim 1

as invalid. A copy of the response was sent to defendants. 

With regard to post-trial motions, on September 20, 2006, the Court granted

plaintiffs’ motion for a judgment as a matter of law that Claim 1 was valid. On

November 27, 2006, the Court entered an Amended Judgment In A Civil Case

adjudging Claim 1 valid. On December 12, 2006, the Court denied defendants’ motion

for reconsideration on validity.

B.

Defendants first challenged the jury’s infringement finding in a motion for

judgment as a matter of law.1

 The Court denied the motion on April 25, 2007. 

Defendants filed a motion for reconsideration based on the Supreme Court’s decision in

KSR International Co. v. Teleflex, Inc., 127 S.Ct. 1727 (2007), which was denied on

May 8, 2007.

On August 21, 2007, following a second jury trial on damages, defendants filed

the instant motion styled Defendants’ Motion Pursuant To Rule 59(e) And The Court’s

Inherent Authority For Judgment As A Matter Of Law Or A New Trial On Infringement in

which they assert:

(1) Plaintiffs altered the construction of the term “independent” in Claim 1 in

their August 25, 2006 response.

(2) The accused Quick Draw System does not have a drive assembly as
3

required by Claim 1. 

The motion is DENIED. The reasons follow.

II.

A.

A Rule 59(e) motion must be filed within ten (10) days of the entry of judgment. 

While no final judgment has been entered, the grounds on which the motion is based

were known to defendants when they received plaintiffs’ response to the Office Action of

July 28, 2006. Defendants had multiple opportunities to raise the issue of a change in

construction prior to August 21, 2007, and did not do so. 

Defendants’ motion is effectively a motion for reconsideration, which is not a

proper basis for a Rule 59(e) motion. As explained in Nagle Ind., Inc. v. Ford Motor Co.,

175 F.R.D. 251, 254 (E.D. Mich. 1997):

Motions to alter or amend, brought pursuant to Fed. R. Civ.

P. 59(e), “are entrusted to the Court’s sound discretion.” 

Keweenaw Bay Indian Community v. United States, 940

F.Supp. 1139, 1140 (W.D. Mich. 1996) (citing Huff, 675 F.2d

at 122). Rule 59(e) motions are generally granted for three

reasons:

(1) because of an intervening change in the

controlling law; (2) because evidence not previously

available has become available; or (3) necessity to

correct a clear error of law or prevent manifest

injustice.

Keweenaw Bay, 940 F.Supp. At 1141 (footnote and citation

omitted). Such motions, however, are “not intended as a

vehicle to relitigate previously considered issues”; “should

not be utilized to submit evidence which could have been

previously submitted in the exercise of reasonable diligence”;

and are not the proper vehicle to attempt to obtain a reversal

of a judgment “by offering the same arguments previously
2

Similarly, under Rule 7.1(h) of the Local Rules for the Eastern District of

Michigan, a motion for reconsideration should be granted if movant demonstrates that

the court and the parties have been misled by a palpable defect and that a different

disposition of the case must result from a correction of such palpable defect. However,

a motion that merely presents the same issues already ruled upon by the court shall not

be granted. 

4

presented.” Id. (Citations omitted).2

As such, the motion can be denied for failure to satisfy the grounds for a Rule 59(e)

motion.

B.

Even assuming the motion was properly before the Court, it fails for lack of merit.

First, the drive assembly argument has previously been dealt with by the Court in the

Memorandum and Order Denying Defendant’s [sic] Motion for Judgment as a Matter of

Law Regarding Infringement, filed April 25, 2007. 

As to the construction of the term “independent,” the Court initially interpreted

“independent” with defendants’ agreement to mean:

any one cover section can be removed from the cover

system without removing any other cover section

In the Office Action of July 28, 2006 the examiner said:

It would have been obvious for one of ordinary skill in the art

at the time of the invention to have modified the apparatus of

Hall by utilizing bows shaped to allow individual panels to be

removed, as shown by Folkes, as this would make

replacement of damaged panels easier and more efficient in

that adjacent panels would not be disturbed. Alternatively,

rather than suggesting the actual replacement of the bows,

Folkes can also be considered as simply teaching the

general concept of the desirability of independently replacing

individual panels, in which case it would have been obvious

to modify the cover plates of Hall by constructing them as

two pieces, thus one end of each panel could be removed

without disturbing the corresponding end of the adjacent
5

panel.

In the patent owner’s response, plaintiffs said:

Put simply, an attempt to substitute the channel-shaped rib

13 of Folkes for the U-shaped frame 12 of Hall would make

replacing a cover section 94, 95 extremely difficult and

extraordinarily inefficient, if even possible. The entire

canopy structure would collapse because the cables used to

support the frames 12 are no longer in tension. (It should be

noted that under these conditions removing a single cover

section cannot occur independently - i.e., without disturbing

any other cover section.) This very problem is why the Hall

canopy structure utilizes the removable cover plate 89. The

cover plate 89 can be popped off a single frame member 12

without requiring disassociating the frame member from the

channel 100 or releasing any of the cables 24, 26, 28 or 30. 

This simple cover plate construction is necessary to

preserve the integrity and support of the nonadjacent frame

members of the canopy structure.

Based on this exchange defendants argue:

Thus, several months after trial and as part of the Second

Reexamination, plaintiffs redefined the term “independent” to

require a new, more restrictive construction of the term that

requires that any one cover section be removable from the

cover system “without disturbing any other cover section,”

(Ex. 7(8/25/06 Amend. In 2d Reexam.) at 6 (emphasis

added)), rather than merely “without removing any other

cover section,” as plaintiffs had successfully argued to the

Court (Ex. 1 (11/18/03 Order) at 27-28 (emphasis added)).

Using the allegedly “more restrictive construction,” defendants go on to argue

that their Quick Draw System does not infringe Claim 1.

Defendants’ assertion that plaintiffs narrowed the construction of Claim 1 lacks

merit. As stated in plaintiffs’ response:

No suggestion was made by the Examiner that he was reconstruing the Court’s construction of the term

“independent.” It would seem rather obvious to take the

Examiner’s statement that the result of Hall’s removal of the
6

single cover plate for removal of one cover section from its

groove will result in the adjacent cover being removed as

well; thus “disturbing” the other cover section. Defendants’

attributing this statement of a physical truism as proof that

the Examiner changed the construction of the term

“independent” stretches the bounds of credibility. The

Examiner’s statement made no change in the construction of

the term “independent” as construed by the Court.

Defendants then represent to the Court that Plaintiffs

“adopted that construction, arguing that the term

‘independent’ should be defined as ‘without disturbing any

other cover section.” (Defendants’ Brief, p. 2.) A simple

reading of Plaintiffs’ response to the PTO (DX 7) shows,

Plaintiffs did not adopt Defendants’ concocted re-construing

of the claims as represented by Defendants. Rather the

plaintiffs were merely meeting the language of the rejection,

that was then withdrawn.

Plaintiffs did not narrow the construction of the term “independent.” The

construction of “independent” as interpreted by the Court was the basis of the jury’s

finding of infringement. Simply stated, defendants are asking the Court for a third time

to reverse the jury’s finding of infringement. It declines to do so.

SO ORDERED.

 s/Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: September 19, 2007

I hereby certify that a copy of the foregoing document was mailed to the attorneys of

record on this date, September 19, 2007, by electronic and/or ordinary mail.

 s/Julie Owens 

Case Manager, (313) 234-5160