IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PBI PERFORMANCE PRODUCTS, INC. : CIVIL ACTION

 :

v. :

 :

NORFAB CORPORATION : NO. 05-4836

MEMORANDUM

Bartle, C.J. October 17, 2007

Plaintiff PBI Performance Products, Inc. ("PBI") sued

defendant NorFab Corporation ("NorFab") for patent infringement,

unfair competition, and trademark and trade dress dilution. On

August 2, 2007, this court entered summary judgment in favor of

NorFab with respect to PBI's unfair competition and trademark and

trade dress dilution counts. On August 29, 2007, we granted

NorFab's motion for summary judgment on PBI's patent infringement

count. We held that U.S. Patent No. 6,624,096 (the "'096

patent"), entitled "Textile Fabric for the Outer Shell of a

Firefighter's Garment," was invalid under 35 U.S.C. § 103(a) as

obvious in light of the prior art. Now before the court is PBI's

motion for reconsideration of the August 29, 2007 Order.

Our Court of Appeals has explained that the purpose of

a motion for reconsideration under Rule 59(e) is "to correct

manifest errors of law or fact or to present newly discovered

evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.

1985). A court may grant a motion for reconsideration or alter

or amend a judgment if the party seeking reconsideration "shows

Case 2:05-cv-04836-HB Document 102 Filed 10/17/07 Page 1 of 7
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at least one of the following grounds: (1) an intervening change

in the controlling law; (2) the availability of new evidence that

was not available when the court granted the motion for summary

judgment; or (3) the need to correct a clear error of law or fact

or to prevent manifest injustice." Max's Seafood Café v.

Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).

Because of the courts' interest in the finality of

judgments, "[m]otions for ... reconsideration should be granted

sparingly and may not be used to rehash arguments which have

already been briefed by the parties and considered and decided by

the Court." Ciena Corp. v. Corvis Corp., 352 F. Supp. 2d 526,

527 (D. Del. 2005). A motion for reconsideration may not be used

to give a litigant a "second bite at the apple." See Bhatnagar

v. Surrendra Overseas Ltd., 52 F.3d 1220, 1231 (3d Cir. 1995). A

litigant that fails in its first attempt to persuade a court to

adopt its position may not use a motion for reconsideration

either to attempt a new approach or correct mistakes it made in

its previous one. A motion for reconsideration "should not be

used as a means to argue new facts or issues that inexcusably

were not presented to the court in the matter previously

decided." Brambles USA, Inc. v. Blocker, 735 F. Supp. 1239, 1240

(D. Del. 1990) (quoted in Bhatnagar, 52 F.3d at 1231). 

Therefore, it is "improper ... to ask the Court to rethink what

[it] had already thought through––rightly or wrongly." Glendon

Energy Co. v. Bor. of Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa.

1993).

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PBI's motion for reconsideration does not meet the

standard required by our Court of Appeals. There has been no

intervening change of controlling law and no new evidence since

August 29. And much of PBI's argument for reconsideration is

merely repetitious of arguments it has previously briefed for the

court. The court will, however, take this opportunity to put a

few issues to rest. 

PBI first argues that this court erred in not

"addressing the evidence raised by PBI in the Declaration of

Clifton A. Perry," one of the named inventors of the '096 patent

and a PBI employee ("Perry Declaration"). Pl.'s Mot. for Recons.

at 2. PBI maintains that the Perry Declaration was evidence that

a person having ordinary skill in the art would not have

considered the Shaffer patents when designing outer shell fabrics

for firefighter's turnout gear. Contrary to PBI's

characterization, the Perry Declaration does not have any

evidentiary value and cannot create a dispute of material fact on

the question of whether a person having ordinary skill in the art

would have considered the Shaffer patents. Perry states that "I

do not believe that the designer of outer shell fabrics for

firemen's turnout gear would have considered U.S. Patent No.

5482763 (Shaffer)." The declaration is predicated on his belief,

not on his personal knowledge, as required under Rule 56(e) of

the Federal Rules of Civil Procedure. It was clearly not

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1. The court also notes that on June 26, 2007 NorFab filed a

motion to strike the Perry Declaration on the grounds that it was

not made from personal knowledge under Rule 56(e) of the Federal

Rules of Civil Procedure and was incompetent under the Federal

Rules of Evidence because it does not apply the claim language. 

In the alternative, NorFab asked for an extension of time for

discovery as to Perry pursuant to Rule 56(f) of the Federal Rules

of Civil Procedure. Because the August 29, 2007 decision

granting summary judgment to NorFab made NorFab's motion moot,

the court did not address that motion on its merits.

2. PBI mis-characterizes this portion of the court's opinion. 

The court did not state that "one having ordinary skill in the

art would apply the technology of the Shaffer Patents ...." 

Rather, the court stated that "[I]t is undisputed that it would

be within the skill of such a person to apply the technology of

the Shaffer patents ...." 2007 WL 2464507 at *7 (E.D. Pa.

Aug. 29, 2007).

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manifest error for the court to decline to give any weight to the

Perry Declaration.1

PBI next argues that the court impermissibly made

factual inferences against PBI in its August 29, 2007 Memorandum. 

When deciding a motion for summary judgment, a court must make

all reasonable inferences from the evidence in the light most

favorable to the non-movant, here, PBI. In re Flat Glass

Antitrust Litig., 385 F.3d 350, 357 (3d Cir. 2004). PBI contends

that:

The Court improperly inferred the following

against PBI: a) the '096 Patent claims

reference any "textile fabric", b) the

Shaffer Patents are within the same field of

endeavor as the '096 patent; c) it is

undisputed that one of ordinary skill in the

art would apply the technology of the Shaffer

Patents to the prior art admitted in the '096

patent; d) the improvements resulting from 2

the combination of the Shaffer Patents with

the admitted prior art of the '096 Patent

were predictable; and e) the problems solved

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by the '096 Patent were the same problems

describe in the Shaffer Patents.

Pl.'s Mot. for Recons. at 14. PBI is incorrect that these were

factual inferences made by the court against it. To the

contrary, they are conclusions of law, based on the undisputed

evidence. As the court explained in its Memorandum, the

determination of whether a patent claim would have been obvious

in light of prior art is a legal conclusion, though it is based

on factual inquiries. Ruiz v. A.B. Chance Co., 234 F.3d 654

(Fed. Cir. 2000). Having found the facts to be undisputed, it

was entirely proper for the court to make the referenced legal

conclusions. 

Finally, PBI contends that a decision of the Board of

Patent Appeals and Interferences ("Board") with regard to a

continuation-in-part application is new evidence that should be

considered by the court. The decision was rendered on August 21,

2007, and PBI submitted it to this court on the morning of

August 30, 2007, a day after this court granted NorFab's motion

for summary judgment. 

The Federal Circuit has held, and PBI acknowledges,

that "The Examiner's decision, on an original or reissue

application, is never binding on a court." Fromson v. Advance

Offset Plate, Inc., 755 F.2d 1549, 1555 (Fed. Cir. 1985). 

Nonetheless, courts are advised to give credence to a Board

determination when the prior art before the court and the Board

are "much the same." In re Laughlin Prods., Inc., Patent Litig.,

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265 F. Supp. 2d 525, 529 (E.D. Pa. 2003). Here the '096 patent

was not the subject of the Board's decision. Additionally, in

its obviousness determination, the Board's decision only refers

to U.S. Patent No. 5,928,971 (the "Ellis patent") and does not

reference any of the other prior art considered by this court in

its August 29, 2007 Memorandum. Thus, the Board decision

submitted by PBI is of no evidentiary or precedential value under

the present circumstances. 

Because we find that the high hurdle for

reconsideration under Rule 59(e) of the Federal Rules of Civil

Procedure has not been met, PBI's motion for reconsideration of

this court's Order of August 29, 2007 will be denied.

Case 2:05-cv-04836-HB Document 102 Filed 10/17/07 Page 6 of 7
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PBI PERFORMANCE PRODUCTS, INC. : CIVIL ACTION

 :

v. :

 :

NORFAB CORPORATION : NO. 05-4836

ORDER

AND NOW, this 17th day of October, 2007, for the

reasons set forth in the accompanying Memorandum, it is hereby

ORDERED that the motion of plaintiff PBI Performance Products,

Inc. for reconsideration of this court's August 29, 2007 Order is

DENIED.

BY THE COURT:

/s/ Harvey Bartle III 

 C.J.

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