UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIR E

HVpertherm, Inc .

V .

American Torch Tip CompanV

Civil No . 05-cv-373-JD

SEALED ORDER

American Torch Tip Company ("ATTC") moves for "revision and

clarification" of the court's order issued on July 24, 2008, that

granted Hypertherm, Inc .'s motion for summary judgment on ATTC's

defense of invalidity of the '923 and '510 patents and o n

infringement by prior versions of accused products . ATTC focuses

on the infringement issue, arguing that because the prior

versions of accused parts are "materially equivalent" to accused

parts reviewed by ATTC's expert, it demonstrated a factual

dispute . ATTC also argues that it was erroneously required to

show that expert testimony was unnecessary, that the list of

prior versions is inaccurate, and that the court should

explicitly preserve ATTC's invalidity defenses as to the '617,

'255, and '988 patents . Hypertherm opposes the motion for

reconsideration .

Case 1:05-cv-00373-JD Document 349 Filed 11/05/08 Page 1 of 6
Discussion

"A court appropriately may grant a motion fo r

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

also Palmer v . Champion Mta . , 465 F .3d 24, 30 (lst 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 (lst

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 (lst Cir . 2006) .

A . Infringement by Prior Versions of Accused Part s

In support of its motion for summary judgment, Hypertherm

relied on the opinion of its expert, E . Smith Reed, that prior

versions of ATTC's accused parts also infringed Hypertherm's

patents in suit . ATTC's expert, Dr . James Sprague, did no t

2

Case 1:05-cv-00373-JD Document 349 Filed 11/05/08 Page 2 of 6
review or provide opinions about prior versions of the accused

products . ATTC argued in opposition to summary judgment that Dr .

Sprague's opinions about the accused parts should be applied to

the prior versions of those parts because the prior versions were

not materially different from the accused parts . The court

concluded that expert testimony was required to address

infringement by the listed prior versions of accused parts . In

the absence of expert opinion that the accused and prior versions

of the parts were not materially different, ATTC could not rely

on its expert's opinions pertaining to the accused parts to

counter Hyerpertherm's expert's opinions about prior versions .

In support of its motion for reconsideration, ATTC argues

that summary judgment on infringement should not have been

entered as to prior versions of accused parts which are

materially indistinguishable from the accused products . ATTC

asserts that the court erred because Hypertherm was not required

to meet the applicable standard for achieving summary judgment on

its infringement claims . It contends, again, that its expert's

opinions on the accused products are transferable to the prior

versions . ATTC also challenges Hypertherm's expert's opinions,

asserting that he did not review all of the prior versions on

which he gave opinions .

ATTC ignores the standard for a motion for reconsideration .

3

Case 1:05-cv-00373-JD Document 349 Filed 11/05/08 Page 3 of 6
As is stated above, a motion for reconsideration is not an

opportunity to provide new arguments or record support for

previously made arguments that could and should have been offere d

to oppose the motion for summary judgment . ATTC does not suggest

that the record support that it now offers to oppose summary

judgment constitutes newly discovered evidence . Therefore, the

augmented record ATTC provides cannot be considered for purposes

of its motion for reconsideration .

ATTC charges that Hypertherm's list of infringing prior

versions of accused parts included two versions that ATTC's

expert did review . In response, Hypertherm references its notice

of corrections filed on March 11, 2008, (dkt . no . 158), in which

it changed the designations of part numbers 220352_ATT and

220435_ATT from "Original, A" to "Original ." The corrections are

incorporated into the court's July 24, 2008, order .

Contrary to ATTC's argument, Hypertherm was required to meet

the applicable standard of proof for achieving summary judgment

on its infringement claims . See Order, July 24, 2008, at 12-16 .

ATTC failed to provide probative and competent evidence t o

counter Hypertherm's prima facie case of infringement . As a

result, ATTC lost on that issue . Similarly, having failed to

challenge Hypertherm's expert's opinions in a timely manner, ATTC

cannot now raise an issue about those opinions .

4

Case 1:05-cv-00373-JD Document 349 Filed 11/05/08 Page 4 of 6
B . Explicit Preservation of Affirmative Defense s

ATTC asks the court to revise the July 24, 2008, order to

explicitly preserve ATTC's affirmative defenses of invalidity as

to the '617, '255, and '988 patents . In the order, the court

denied Hypertherm's motion challenging ATTC's defense of

invalidity of the '988 patent and granted summary judgment in

Hypertherm's favor on ATTC's defenses of invalidity of the '923

and '510 patents . The defenses of invalidity of the '617 and

'255 patents were not at issue in the motion decided by the July

24, 2008, order . The order clearly denied summary judgment as to

the invalidity defense of the '988 patent . Therefore, no further

clarification is necessary .

Conclusion

For the foregoing reasons, the defendant's motion fo r

reconsideration (document no . 281) is denied . The July 24, 2008,

order is amended to incorporate the notice of corrections filed

by the plaintiff on March 11, 2008, at docket no . 158 .

SO ORDERED .

/s/Joseph A . DiClerico, Jr .

Joseph A . DiClerico, Jr .

United States District Judge

November 5, 200 8

cc : Jill C . Anderson, Esq .

Jacob Baron, Esq .

Steven Abuer, Esq .

Lucas Blower, Esq .

Seth Cannon, Esq .

5

Case 1:05-cv-00373-JD Document 349 Filed 11/05/08 Page 5 of 6
Joseph Capraro, Jr ., Esq .

Christopher Carney, Esq .

Jeffery Cross, Esq .

Joseph Dattilo, Esq .

Ami Gandhi, Esq .

Maia Harris, Esq .

Marc Kallish, Esq .

Rhett Krulla, Esq .

Jonathan Lax, Esq .

Richard Nelson, Esq .

W . Scott O'Connell, Esq .

Jeremy Oczek, Esq .

Richard Rochford, Jr ., Esq .

David Ruoff, Esq .

John Skeriotis, Esq .

Benjamin Stern, Esq .

Wayne Tang, Esq .

6

Case 1:05-cv-00373-JD Document 349 Filed 11/05/08 Page 6 of 6