UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Hypertherm, Inc.

v. Civil No. 05-cv-373-JD

American Torch Tip Company

SEALED ORDER

American Torch Tip Company (“ATTC”) moves for

reconsideration, challenging the order issued on September 11,

2008, that granted summary judgment to Hypertherm, Inc. on ATTC’s

affirmative defenses of laches, estoppel, acquiescence, waiver,

and unclean hands. ATTC argues that the court failed to consider

material evidence, misunderstood the subject matter of the

parties’ 1996 litigation, and misunderstood ATTC’s interrogatory

answer pertaining to the bases of its affirmative defenses. 

Hypertherm objects to reconsideration.

Discussion

“A court appropriately may grant a motion for

reconsideration where the movant shows a manifest error of law or

newly discovered evidence” or “if the court has patently

misunderstood a party or has made an error not of reasoning but

of apprehension.” Ruiz Rivera v. Pfizer Pharms., LLC, 521 F.3d

76, 81-82 (1st Cir. 2008) (internal quotation marks omitted); see

Case 1:05-cv-00373-JD Document 362 Filed 11/17/08 Page 1 of 9
2

also Palmer v. Champion Mtg., 465 F.3d 24, 30 (1st Cir. 2006). 

Under that standard, “[a] motion for reconsideration does not

provide a vehicle for a party to undo its own procedural failures

and it certainly does not allow a party to introduce new evidence

or advance arguments that could and should have been presented to

the district court prior to the judgment.” Marks 3 Zet-Ernst

Marks GmBh & Co. KG v. Presstek, Inc., 455 F.3d 7, 15-16 (1st

Cir. 2006). Reconsideration is also not an appropriate means to

reargue an issue that the court has addressed. Platten v. HG

Bermuda Exempted Ltd., 437 F.3d 118, 139 (1st Cir. 2006).

A. Exclusion of 1996 Letters

The court ruled that ATTC was barred, pursuant to Federal

Rule of Civil Procedure 37(c)(1), from using two letters dated in

October of 1996 to support its affirmative defenses because ATTC

failed to disclose that evidence in response to Hypertherm’s

interrogatory. ATTC contends that the court mistakenly

interpreted its interrogatory answer to state that its defenses

were based on communications beginning in 1998 or 1999 when the

answer actually stated that the defenses were based on

communications “since at least 1998 or 1999.” ATTC also contends

that the letters did not introduce a new theory because it had

Case 1:05-cv-00373-JD Document 362 Filed 11/17/08 Page 2 of 9
3

relied on the parties’ communications to support its affirmative

defenses. 

ATTC does not dispute, however, that it failed to disclose

the 1996 letters as the basis for its affirmative defenses in

response to Hypertherm’s interrogatory. As the court ruled,

having referred Hypertherm to communications since at least 1998

or 1999, ATTC was required to supplement its answer to include

the 1996 letters. ATTC failed to do so, and the letters were

properly excluded.

B. Overwhelming Evidence

ATTC contends that the court overlooked overwhelming

evidence that supported its affirmative defenses. Although ATTC

disputes the court’s ruling that excluded the 1996 letters, it

also has reformulated its defenses to operate without reliance on

the letters. A motion for reconsideration is not the appropriate

vehicle for new arguments.

In its opposition to Hypertherm’s motion for summary

judgment, ATTC relied on the October 1996 letters, its assertion

that Hypertherm had the opportunity to test ATTC electrodes in

1997, the requirement under the parties’ 1997 settlement

agreement that ATTC would send pertinent catalog pages to

Hypertherm, and a letter from Hypertherm in March of 1999 that

Case 1:05-cv-00373-JD Document 362 Filed 11/17/08 Page 3 of 9
4

accused ATTC of infringing a different patent. ATTC

characterized the parties’ interactions during this period as

follows: “In summary, Hypertherm was silent on the issue of the

‘988 Patent from October 8, 1996, when it first accused ATTC of

infringing the ‘988 Patent, until the time period before it filed

the instant action in 2005." ATTC’s Opposition, dkt. no. 249. ¶

6. As Hypertherm pointed out, ATTC’s version of events

overlooked the parties’ patent infringement litigation beginning

in 1996 that included claims of infringement of the ‘988 patent.

ATTC addressed the 1996 litigation in its motion for partial

summary judgment on its equitable estoppel defense. ATTC argued

that Hypertherm misleadingly communicated that it did not intend

to enforce the ‘988 patent when it failed to respond to ATTC’s

October 1996 letter, when Hypertherm tested Modified Electrodes

during the 1996 litigation but did not accuse them of

infringement, when the 1997 settlement did not require ATTC to

make further changes in its Modified Electrodes, and when based

on review of catalog pages Hypertherm accused ATTC parts of

infringing the ‘095 patent but not the ‘988 patent. In its

motion for reconsideration, ATTC focuses more on the litigation

and less on the October 1996 letters.

 In the 1996 infringement action, Hypertherm accused ATTC and

its related company, Plasma Components, of infringing the ‘988

Case 1:05-cv-00373-JD Document 362 Filed 11/17/08 Page 4 of 9
1In paraphrasing paragraph 5 of the settlement agreement in

the previous order, the court merely noted the reference to the

same or similar parts but did not construe or interpret the

meaning of the agreement. 

2ATTC now says that the infringement action was filed before

Hypertherm received its letter. In any case, the litigation

demonstrated Hypertherm’s intent to defend the ‘988 patent.

5

patent, accusing, among others, parts numbered 120111 and 120112. 

Part numbers 120111 and 120112 were referenced in the October

1996 letters. In the parties’ 1997 settlement agreement, part

numbers 120111 and 120112 were included in the list of parts that

would be destroyed. The settlement agreement also provided, in

pertinent part: 

With respect to non-genuine replacement parts which

Torch Companies [ATTC and Plasma] offer for sale as

“alternatives” to Hypertherm patented parts (e.g.,

120111A, 120112A, 101611 and 120090), Torch Companies

may use the Hypertherm part number for these and future

“alternative” parts on the condition that the

Hypertherm part number must be combined with the suffix

“ATTC” for ATTC parts or “PCI” for Plasma parts for

such non-genuine parts . . . .1

Settlement ¶ 5. 

Therefore, the record shows that within weeks of the October

1996 letters Hypertherm brought an infringement action under the

‘988 patent, citing the same part numbers that were referenced in

the letters.2 ATTC’s description of the parties’ interactions,

that a “nearly nine year silence - punctuated with Hypertherm’s

test of the Design-Around Electrodes and Hypertherm’s accusations

Case 1:05-cv-00373-JD Document 362 Filed 11/17/08 Page 5 of 9
6

that they violated a different patent - misled ATTC into

believing its Design-Around Electrodes complied with the ‘988

Patent,” is not an accurate picture of events between 1996 and

2005.

ATTC now contends that the 1996 litigation supported its

belief that its “Design Around” electrodes, which it also calls

“Modified Parts,” successfully avoided infringing the ‘988

patent. ATTC refers to “Original Parts” and “Modified Parts,”

meaning, apparently, that the parts addressed in the 1996

litigation were “Original Parts” and parts manufactured

thereafter were “Modified Parts.” ATTC asserts that the Original

Parts with part numbers 120111 and 120112 were destroyed as

required by the settlement agreement. It argues that based on

the provision in paragraph 5 of the settlement agreement, it

believed that its Modified Parts did not infringe the ‘988 patent

because they used larger hafnium inserts and that it further

assumed that “other electrodes with larger hafnium inserts” also

would not infringe the ‘988 patent. ATTC further contends that

because Hypertherm did not bring an infringement action

challenging the Modified Parts until 2005, it is entitled to

affirmative defenses of laches, acquiescence, waiver, and unclean

hands.

Case 1:05-cv-00373-JD Document 362 Filed 11/17/08 Page 6 of 9
7

With respect to ATTC’s estoppel defense, it fails to show

that Hypertherm’s actions or inactions were misleading. ATTC

apparently made assumptions based on Hypertherm’s inaction. 

Although inaction in some circumstances may constitute misleading

conduct that would support an estoppel defense, ATTC did not

provide a factual background to support that inference. See

Scholle Corp. v. Blackhawk Molding Co., Inc., 133 F.3d 1469, 1471

(Fed. Cir. 1998).

ATTC also asserts that under the 1997 settlement agreement,

Hypertherm reviewed its revised catalog pages “at least as early

as March of 1998.” Based on the catalog review, ATTC argues that

Hypertherm had notice of its Modified Parts but did not accuse

them of infringing the ‘988 patent. Instead, Hypertherm accused

a modified electrode, part number 120112ATTC, of infringing the

‘095 patent. Hypertherm counters that ATTC acknowledges the

catalog did not include the part dimensions that are critical to

determining infringement of the ‘988 patent. As a result, the

catalog review process does not create a disputed fact as to

whether Hypertherm knew after the 1996 litigation but long before

2005 that the accused parts infringed the ‘988 patent.

Even based on ATTC’s revised and augmented version of

pertinent events, it has not shown a material factual dispute

that would avoid summary judgment. ATTC relies on its

Case 1:05-cv-00373-JD Document 362 Filed 11/17/08 Page 7 of 9
8

unsupported interpretations of the parties’ settlement agreement

and the absence of infringement accusations under the ‘988 patent

as evidence of laches, acquiescence, waiver, and unclean hands. 

ATTC’s complacence, however, was based on its unsupported

assumptions about what would avoid infringement. The parties’

interactions after their 1997 settlement do not show the kind of

extended delay that could raise a factual issue on the defenses

of laches and acquiescence. As noted previously, ATTC offered no

evidence of waiver or of unclean hands.

C. Summary

The 1996 letters were properly excluded due to ATTC’s

failure to disclose them in response to Hypertherm’s

interrogatory. In the absence of the 1996 letters, ATTC’s theory

supporting its defenses fails. Even if the letters were

considered however, intervening events do not support the

affirmative defenses ATTC asserts. Therefore, ATTC has not shown

a factual dispute that would avoid summary judgment on its

defenses. 

Case 1:05-cv-00373-JD Document 362 Filed 11/17/08 Page 8 of 9
9

Conclusion

For the foregoing reasons, the defendant’s motion for

reconsideration (document no. 323) is denied.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

November 17, 2008

cc: Jill C. Anderson, Esquire

Jacob Baron, Esquire

Steven Abuer, Esquire

Lucas Blower, Esquire

Seth Cannon, Esquire

Joseph Capraro, Jr., Esquire

Christopher Carney, Esquire

Jeffery Cross, Esquire

Joseph Dattilo, Esquire

Ami Gandhi, Esquire

Maia Harris, Esquire

Marc Kallish, Esquire

Rhett Krulla, Esquire

Jonathan Lax, Esquire

Richard Nelson, Esquire

W. Scott O’Connell, Esquire

Jeremy Oczek, Esquire

Richard Rochford, Jr., Esquire

David Ruoff, Esquire

John Skeriotis, Esquire

Benjamin Stern, Esquire

Wayne Tang, Esquire

Case 1:05-cv-00373-JD Document 362 Filed 11/17/08 Page 9 of 9