UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

AGRI LABS HOLDINGS LLC, )

)

Plaintiff, )

)

v. ) CAUSE NO.: 1:15-CV-26-TLS

)

TAPLOGIC, LLC, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on Defendant TapLogic LLC’s Motion to Alter or Amend 

Order on Summary Judgment or in the Alternative as a Renewed Motion for Summary Judgment 

[ECF No. 155], filed on February 13, 2018, which the Court construes as a motion for 

reconsideration of the Court’s summary judgment Opinion and Order [ECF No. 152] under 

Federal Rule of Civil Procedure 54(b). Plaintiff Agri Labs Holdings LLC responded [ECF No. 

158] on March 6, 2018, and the Defendant replied [ECF No. 159] on March 20, 2018. This 

matter is now fully briefed and ripe for review.

In its January 16, 2018, Opinion and Order, the Court granted in part and denied in part 

the Defendant’s Motion for Summary Judgment [ECF No. 131] of non-infringement, denied the 

Defendant’s Motion for Summary Judgment [ECF No. 129] of invalidity, and denied the 

Plaintiff’s Motion for Summary Judgment [ECF No. 142] of infringement. The only remaining 

claim in this action is the Plaintiff’s claim that the Defendant indirectly infringes Independent 

Claim 1 of U.S. Patent No. 8,268,857 (“the ’857 Patent”) regarding a “Soil Sample Tracking 

System and Method.” The Plaintiff alleges that the AgPhD Soil Test application (“the AgPhD 

App”), developed by the Defendant for use with smartphones, violates the claimed method. The 
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Plaintiff accuses the Defendant of infringement because when the end-users of the AgPhD App 

use the app for its intended purpose, end-users directly infringe Independent Claim 1, and the 

Defendant induces such infringement. The Defendant argues in the instant Motion that it does 

not induce infringement for reasons including that it only provided instructions for use of the 

AgPhD App, which is not enough to demonstrate inducement; it does not own or control the 

AgPhD App or website; the instructions were composed and placed on the website prior to the 

Defendant’s knowledge of the ’857 Patent; the Plaintiff has not provided evidence of specific 

intent to induce infringement; non-infringing methods for using the AgPhD App were always 

available to end-users; and there was no direct infringement because no single entity performed 

all of the steps of the claimed method.

ANALYSIS

“Unlike motions to reconsider final judgments, which are governed by Federal Rule of 

Civil Procedure 59 or 60, a motion to reconsider an interlocutory order [under Rule 54(b)] may 

be entertained and granted as justice requires.” Azko Coatings, Inc. v. Aigner Corp., 909 F. Supp. 

1154, 1159 (N.D. Ind. 1995). Rule 54(b) provides in relevant part:

[A]ny order or other decision, however designated, that adjudicates fewer than all 

the claims or the rights and liabilities of fewer than all the parties does not end the 

action as to any of the claims or parties and may be revised at any time before the

entry of a judgment adjudicating all the claims and all the parties’ rights and 

liabilities.

“The beneficial aspect of distinguishing between the two methods of relief is readily apparent 

when the strict standard for granting relief under Rule 60(b) is contrasted with the practically 

unbridled discretion of a district court to reconsider a previous interlocutory order [under Rule 

54(b)].” Fisher v. Nat’l R.R. Passenger Corp., 152 F.R.D. 145, 149 (S.D. Ind. 1993). A court 
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may reconsider prejudgment interlocutory decisions at any time prior to final judgment. In re 

949 Erie St., Racine, Wis., 824 F.2d 538, 541 (7th Cir. 1987) (citing Cameo Convalescent Ctr., 

Inc. v. Percy, 800 F.2d 108, 110 (7th Cir. 1986)).

“Motions for reconsideration serve a limited function[:] to correct manifest errors of law 

or fact or to present newly discovered evidence.” Rothwell Cotton Co. v. Rosenthal & Co., 827 

F.2d 246, 251 (7th Cir. 1987) (internal quotation omitted). Motions to reconsider do not “serve 

as the occasion to tender new legal theories for the first time.” Id.

The Court has already addressed the majority of the Defendant’s arguments, which are 

rife with issues of fact. Despite the Defendant’s assertion that the Court “has not fully addressed” 

certain facts that are in dispute “in the context of inducement,” the Court has already considered 

these arguments and found that they present questions of fact that cannot be resolved on 

summary judgment. “[T]he court is not required to rehash arguments that already were addressed 

and decided.” McGrath v. Everest Nat. Ins. Co., 668 F. Supp. 2d 1085, 1119 (N.D. Ind. 2009). 

The Court therefore will not reconsider these arguments and affirms its reasoning as set forth in 

its summary judgment Order and Opinion.

In addition to re-hashing its previous arguments, the Defendant argues that it cannot be 

liable for induced infringement because any acts undertaken by the Defendant in relation to the 

AgPhD App occurred prior to its knowledge of the ’857 Patent. However, the Defendant did not 

make that argument in its summary judgment briefing, and the Defendant has therefore waived

it. McGrath, 668 F. Supp. 2d at 1118–19 (finding party waived argument because “no new 

arguments may be presented [in a motion for reconsideration] which were not presented in the 

original briefs on summary judgment”) (citing Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th Cir. 

1995)).
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However, even if the Defendant did not waive this argument, the Court does not find it 

persuasive. An argument that a defendant did not commit any inducing acts after receiving notice 

of the patent has merit because “[a] crucial element of induced infringement is that the inducer 

must have actual or constructive knowledge of the patent.” Insituform Tech., Inc. v. Cat 

Contracting, Inc., 161 F.3d 688, 696 (Fed. Cir. 1998). “[S]ubsequent action taken on a product 

that was sold free from liability cannot subject a defendant to inducement liability.” Tesco Corp. 

v. Weatherford Int’l., Inc., 722 F. Supp. 2d 755, 777 (S.D. Tex. 2010) (citing Fonar Corp. v. 

General Elec. Co., 107 F.3d 1543 (Fed. Cir. 1997)). Thus, if the only acts taken by the 

Defendant in this case after receiving notice of the ’857 Patent were on behalf of customers that 

had already purchased the AgPhD App, the Plaintiff would not have a cognizable claim for 

induced infringement.

However, in this case, there is a question of fact as to whether the Defendant committed 

inducing acts after it became aware of the ’857 Patent. Where an accused infringer engaged in 

other inducing acts after becoming aware of the patent, it may be liable for inducing 

infringement. See Crypto Research, LLC v. Assa Abloy, Inc., 236 F. Supp. 3d 671, 687 (E.D.N.Y. 

2017) (denying motion to dismiss where the plaintiff alleged that the defendants “continued to 

make, use, offer to sell, sell, and/or import into the United States” even after receiving notice); 

e.Digital Corp. v. Research in Motion Ltd., No. 13cv781, 2013 WL 12095242, at *3 (S.D. Cal. 

Aug. 28, 2013) (noting that the requisite intent for induced infringement could be found for acts 

occurring after notice); Ocean Innovations, Inc. v. Archer, 483 F. Supp. 2d 570, 582 (N.D. Ohio 

2007) (granting reconsideration of summary judgment order, finding that the plaintiffs had 

sufficiently proved inducing acts after notice); Lifescan, Inc. v. Can-Am Care Corp., 859 F. 

Supp. 392, 396 (N.D. Cal. 1994) (finding that warning sticker on products that were sold after 
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the defendant had notice of the patent was ineffective to prevent instances of direct infringement, 

opening accused infringer up to potential liability for induced infringement); Avery Dennison 

Corp. v. UCB Films PLC, NO. 95 C 6351, 1997 WL 567799, at *4 (N.D. Ill. Sept. 4, 1997) 

(finding that defendant’s “apparent promotion” of its product for use in the accused process by 

others was sufficient to preclude summary judgment even without direct evidence of contact 

between the defendant and the alleged direct infringers).

There is evidence of record of other acts taken by the Defendant after receiving notice of 

the ’857 Patent from which a reasonable fact-finder could find the Defendant liable for induced 

infringement. For example, in his deposition, Paul Choate testified that up until July of 2017, the 

Defendant continued to handle much, if not all, of the technical support for the AgPhD App; the 

Defendant continued to list the AgPhD App on its own website as part of its “family of products” 

until the summer of 2017, which could be construed as promoting the AgPhD App; the 

Defendant continued to “do some work on [the agphdsoiltest.com website] from time to time,”

from which a fact-finder could infer that the Defendant had access to and control of the website,

contrary to the Defendant’s assertion; there is some indication that the Defendant profited from 

sales of the AgPhD App after receiving notice; and there is evidence that at some point in time, 

the Defendant directly charged a customer who ordered soil sample containers through the 

website, from which, in combination with other evidence regarding the Defendant’s profits, a 

fact-finder could infer that the Defendant continued to make such sales and actively charge 

customers after receiving notice. Although the Defendant may dispute the veracity of or the 

weight to be given to this evidence, it is not within the province of the Court to make such 

findings of fact at the summary judgment stage.
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Therefore, the Court DENIES the Defendant’s Motion to Reconsider [ECF No. 155] and 

AFFIRMS its reasoning in its January 16, 2018 Order and Opinion. The Court also AFFIRMS 

the trial date set for September 17, 2018, at 9:00 A.M. Eastern Standard Time before Chief Judge 

Theresa L. Springmann.

SO ORDERED on April 3, 2018.

s/ Theresa L. Springmann 

CHIEF JUDGE THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT