identifiers to be revealed. Neither party had previously argued that the identifiers must be
revealed simultaneously,

We agree with Douglas Press that the concealing structure does not have to be limited to
a single portion of the upper ply and thus modify our prior decision, The language of the claim
does not require a single portion of upper ply, but does allow for the identification of more than
one eligible player. (U.S. Patent No. 5,046,737 col. 5, II. 32-33.) No limitation is found in the
claim requiring the multiple identifiers to be necessarily concealed by a single portion of upper
ply. The preferred embodiment of the patent, as found in the specification, provides for the
possibility of multiple portions of selectively removable upper ply at the second level. It states
that the "master game card further includes an arrangement whereby at least one [one or more| of
the listed, eligible players is identified .... [as] provided by at least one [one or more] bonus
player identifier[s] on the insider surface of the lower ply of the master game card... ." (U.S.
Patent No. 5,046,737 col. 4, ll. 3-8.) The identifiet/s is/are concealed "by a selectively removable
flap-like portion . . . of the upper ply of the master game card." (U.S. Patent No. 5,046,737 col.
4, 11, 9-11,) The word "a" in the preceding sentence does not refer to one single flap because it
refers back to the one or more identifiers. The specification provides that while the preferred
embodiment includes only a single identifier, “a plurality of such identifiers can alternately be
provided, whereby a like plurality of the eligible players become further eligible to play the
‘bonus section." (U.S. Patent No. 5,046,737 col. 4, ll. 23-27.)

The Court disagrees with Tabco that the claim language "so that said sclected onc of said
cligible players can determine the award" (at column 6, lines 1-2) must be interpreted as limiting

the number of players advancing to the third level to only one. ‘The words "said sclected one"

-4-


no reason for us to now "clarify" or reconsider our opinion. See Oto, 224 F.3d at 606 ("*manifest
error’ is not demonstrated by the disappointment of the losing party"). Tabco’s request for

clarification is denied.

Ti. Conelusion

For the foregoing reasons, this Court grants Plaintiff's motion for limited reconsideration
of the Court's claim construction of the '737 patent to the extent that the ‘737 patent does not
require all second level winners to be revealed simultaneously contrary to this Court's earlier
Order. The remainder of Plaintiff's motion for limited reconsideration is denied. Defendants’
request for clarification is denied.

ENTER ORDER:

- Lig i. a lhe.

MARTIN C. ASHMAN
Dated: March 18, 2003. United States Magistrate Judge



Because the September 11, 2002 Opinion partially went outside the adversarial issues

presented ta us by the parties, we wil] reconsider the issues raised by the parties.

A. Simultaneous Revelation

Douglas Press first asks the Court to reconsider its construction of the language of Claim
1 of the '737 patent which states as follows: “said master game card including means for
identifying at least one of said eligible players, and selectively removable means for concealing
said identifying means prior to establishing all of said eligible garne players for providing a
second level of play...." (U.S. Patent No. 5,046,737 col. 5, il. 32-36.) The parties disagreed
whether this meant that the player or players identified at the second level of play are
"predetermined," but the Court agreed with Douglas Press that the player or players are
“predetermined.” Douglas Press, 2002 WT. 31040351, at *6. We first found that "the concealing
structure {the selectively removable means Jor concealing the identifying means] is limited to a
single portion of the upper ply," and then concluded that "if more than one predetermined
identifier is concealed prior to the play of the game, then all must be revealed simultaneously
during the game." Jd.

Douglas Press asks the Court to reconsider its determination that the identifiers must be
revealed simultaneously, although it is really also asking the Court to reconsider its determination
that the concealing structure is one single portion of upper ply, and ane portion only. Tabco
responds that if the master card has more than one concealing structure at the second level of

play then the player/s is/are not predetermined because there is nothing in the claim requiring all


refers back to column 5, line 33 (“at least one of said eligible players”) where "at least one” is
interpreted as "one or more.”

This interpretation is consistent with a finding that the player/s is/are predetermined. At
least one player must win at the second level and go on to the next level. (U.S. Patent No.
5,046,737 col. 5, L. 33.) Lf there is more than one flap, there must be cither an identifier under
both flaps (if only onc flap is opened), or, both flaps must be opened. They do not have to be
opened simultaneously.

Because we made our decision outside the adversarial issucs that were presented to us,

this motion for reconsideration is well-taken, and granted in part.

B. Award Value
Douglas Press next asks the Court to reconsider its interpretation of the following claim
language:
Said master game card further including award identifying means
comprising a plurality of award valucs displayed on said master
game card, and selectively removable means for concealing said
award values, so that said selected one of said eligible players
can determine the award to be received by removing the
concealing means associated with onc of said award values for
providing a third level of play.
(U.S. Patent No. §,046,737 col. 5, IL. 37-40 & col. 6, Il. 1-4 (emphasis added).) Specifically,
Douglas Press takes umbrage with the Court’s finding that ‘Tabco’s proposed claim construction
was correct, i.c. that the "proper construction of the sixth element of Claim 1 is that it allows a

bonus player to remove only one concealing means associated with one award value.” Douglas

Press, Inc, 2002 WL 31040351, at * 7. Douglas Press urges the Court to reject this finding and

-5-


eee

Minute Order Korm (06/57)

United States District Court, Northern District of Mlinois

Name of Assigned Judge
or Magistrate Judge

Martin C. Ashman

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 00 CRT 34y DATE 3/18/2003
CASE Douglas Press, Inc. vs, Tabco, Inc.
TITLE
[ln the following box (a) indicate the party filing the motion, g., plaintiff, defendant, 3rd party plaintiff, and (b) stale briefly the nature
MOTION: of the motion being presented. ]
DOCKET ENTRY;
(i) ia) Filed motion of J use listing in “Motion” box above.]
(2) Qo Brief in support of motion due __
(3) Qa Answer brief to motion due____._ Reply to answer brief due__ -
(4) a Ruling/Hearing on , set for _ at.
(5) q Status hearing[held/continued to] [set for/re-set for] on _ set for _ at :
(6) ag Pretrial conferencefheld/continued to] [set for/re-set for] on set for, at :
(7) C] ‘Trial{set for/re-set for] on __at, _
(8) oO [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) CLocal Rule 41.1 CFRCP41(a\(1) CFRCPA1(a)(2).
ao [Other docket entry] Enter memorandum opinion and order. Plaintiff's motion for limited
reconsideration of the court's claim construction memorandum opinion and order (72-1 | is granted in part
and denied in part. Defendants’ request for clarification is denied.
al ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
2
No notices required, _sunber eraser
oY | Notices mailed by judge’s staff.

Notified counsel by telephone,

MAR, 19.200

Ow

ouketing deputy ina

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge,

312003
courtroom ite aed tice

Is deputy's ®
initials

mailing éepoty initials



instead adopt its proposed claim construction. It argues that the Court’s construction improperly
limits the definition of the term “award value," and that the proper definition would allow an
“award value" to be disclosed by a single symbol (single indicia) or a plurality of symbols
(multiple indicia).

The Court carefully considered this issue in ils prior decision. After reviewing all the
materials submitied by the parties and the claim language of the *7 37 patent itself, the Court held
that the Defendant's proposed claim construction was correct. Douglas Press has not
demonstrated that the Court's ruling was outside the issues presented by the partics, nor do we
find that we patently misunderstood either party. See Bank of Waunakee, 906 F.2d at 119
(quotation omitted). For these reasons, the motion for reconsideration js not well-taken, and

Plaintiff's motion to reconsider is denied in part.

Lon Request for Clarification

Tabco, in its Response to Plaintiff's motion for reconsideration, adds its own "request for
clarification" of the Court’s construction of lines 28 through 31 of Claim 1 which read as
follows: "means for establishing the cligibility of a plurality of selected game players having
playing cards predetermined selected ones of said game symbols." Tabco states that the Court
“attempts to make some sense of the claim language" when it adopted Plaintiff's suggested
meaning for the claim terminology.

It is clear that Tabco is simply rehashing arguments that it made in its Markman briefs.
The Court carefully considered the arguments made by both parties when it construed Claim 1 of

the ‘737 patent. ‘The Court adopted Plaintiffs claim construction instead of Tabco’s, but this is

6.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION Ly
MAR 19 2003

DOUGLAS PRESS, INC., )
an Illinois corporation, )
)

Plaintiff, ) Case No. 00 € 7338
)

Vv. 5) Magistrate Judge

) Martin C. Ashman
TABCO INC., a Delaware corporation, et al., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Tn September of 2002, this Court issued a Memorandum Opinion and Order construing
the disputed claim terms of United States Patents Numbers 5,046,737 and 5,407,200,’ Douglas
Press, Ine. y. Tabco Ine., No. 00 C7338, 2002 WL 31040351, at *3-8 (N.D. Hl. Sept. 11, 2002).
Plaintiff Douglas Press, Inc. subsequently filed a motion for limited reconsideration of the
Court's claim construction of the '737 patent. Defendants Tabco Inc., Tabco Canada, and
Specialty Print (collectively "Tabco") responded and additionally requested clarification of the
Court's construction of the '737 patent.’ The following represents the Court's reconsideration of

the claim construction.

'The parties have consented to have this Court conduct any and all proceedings in this
case, including the entry of final judgment. See 28 U.S.C. § 636(c); Local R. 73.1(b).

*fabco also requested clarification with respect to the ‘200 patent, however, it did not
brief this issue or even explain what necded to be clarified. Thus, the Court considers this
request to be waived,


L Discussion
Although motions to reconsider are not explicitly provided for in the Federal Rules of

Civil Procedure, such motions are routincly presented. Courts commonly treat these motions as
if they fall under the scope of Rule 59(e), which provides for the amendment of’ judgments, even
when they are requests to reconsider orders instead of final judgments. See e.g. Ravho v. Snyder,
2003 WL 716578, at *3 (S.D. DL. Feb, 28, 2003) (noting that if motions to reconsider are "filed
within ten days of the entry of the judgment or order in the casc, the motions are construed as
motions to alter or amend under Federal Rule of Civil Procedure 59(c)"). Rule 59(e) should be
used to direct a court's attention to newly discovered evidence or a manifest error of law or fact.
Oto v. Metro. Life Ins. Co., 224 P.3d 601, 606 (7th Cir, 2000). ‘The rule allows the court "to
correct its own etrots, sparing the parties and appellate courts the burden of unnecessary
appellate proceedings." Charles v. Daley, 799 F.2d 343, 348 (7th Cir. 1986), Nevertheless, it is
not an opportunity for a disappointed party to rchash the same arguments that it raised earlier.
Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R-D, 282, 288 (N.D, IIL 1988). The
motion for reconsideration is appropriate when:

The Court has patently misunderstood a party, or has made a

decision outside (he adversarial issues presented to the Court by the

parties, or has made an error not of reasoning but of apprehension.

A further basis for a motion to reconsider would be a controlling or

significant change in the law or facts since the submission of the

issuc to the Court.

Bank of Waunakee v, Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir, 1990) (quoting

Above the Belt, Ine. v. Mel Bohannan Roofing, lnc., 99 FR.D. 99, 101 (B.D. Va. 1993).