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DSM IP Assets, B.V. v. Lallemand Specialties, Inc.

United States District Court, W.D. Wisconsin

April 30, 2018

DSM IP ASSETS, B.V. & DSM BIO-BASED PRODUCTS & SERVICES, B.V., Plaintiffs and Counter-Defendants
LALLEMAND SPECIALTIES, INC. & MASCOMA LLC, Defendants and Counterclaimants.

          OPINION & ORDER


         Lallemand moves the court to reconsider its summary judgment decision on indefiniteness and the related underlying facts. (Dkt. #204.) More specifically, Lallemand contends that “manifest errors of fact lead to an erroneous legal conclusion on Defendants' indefiniteness defense, ” which “will lead to incorrect evidentiary rulings before and during trial, resulting in manifest injustice and reversible error.” (Id. at 5.) In reviewing the briefing on this motion, the court realized the parties are to some extent talking past each other with respect to the role of the Blomberg assay in detecting GPD activity in vitro and proof of GPD activity in vivo through reduced glycerol production, which may be the product of a genuine misunderstanding of the court's ruling or a need for greater clarification by the court. Understanding that much of the parties' argument may be written for the court of appeals, and therefore not really inviting clarification by this court, I will attempt to provide it in this opinion, as I did during oral argument on the motion at the final pretrial conference. Nevertheless, for the reasons already stated at summary judgment and during the final pretrial conference, as well as those that follow, Lallemand's motion for reconsideration will be denied.


         Deciding “a motion for reconsideration is left to the discretion of the district court.” Caisse Nationale de credit Agricole v. CBI Inds., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996) (citing Billups v. Methodist Hosp., 922 F.2d 1300, 1305 (7th Cir. 1991)). “Reconsideration is not an appropriate forum for rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion.” Id. (citations omitted). Instead, “[m]otions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence.” Id. at 1269 (quoting Keene Corp. v. Int'l Fidelity Ins. Co., 561 F.Supp. 656, 665 (N.D. Ill. 1982), aff'd, 736 F.2d 388 (7th Cir. 1984)). “A ‘manifest error' is not demonstrated by the disappointment of the losing party. It is the ‘wholesale disregard, misapplication, or failure to recognize controlling precedent.'” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (citation omitted).

         Lallemand's motion to reconsider does not begin to reach this high bar. Indeed, the court recognized at summary judgment both: (1) the serious shortcomings of the Blomberg assay for measuring GPD2 and GPP activity; and (2) the patent's disclosure of comparative glycerol production as a broader, less-flawed measurement. Most of Lallemand's arguments as to either finding simply “rehash” its arguments at summary judgment, and except for the clarifications below, the court finds no merits in new arguments raised in its motion to reconsider.

         I. Blomberg Assay

         Lallemand's principal argument is that because the '998 patent expressly discloses the Blomberg assay, the court somehow divorced the Blomberg assay from “the claimed reduction in GPD activity” based on its observation that “the assay does not measure ‘changes of rates of enzymatic activity over time.'” (Id. at 8.) Despite the court expressly holding that “the claims do not require this measurement, ” Lallemand goes on to argue that the court's observation “fundamentally changes the scope of the patent by adding additional requirements regarding changing rates over time.” (Id. at 8-9.)

         Assuming that it does not intend to create a strawman, Lallemand would appear to be the one that fundamentally misunderstands the court's holding on summary judgment with respect to the Blomberg assay. First, as emphasized at the final pretrial conference, the court did not change its construction of the terms, much less the claims of the patent, which Lallemand itself concedes as quoted above. Second, the court did not find that use of the Blomberg assay plays no role in determining infringement. Instead, the court found that use of the Blomberg assay has its limits, which was recognized both in the '998 patent and by all three scientific experts during the colloquy, including Lallemand's expert Dr. Winge.

         Nevertheless, Lallemand continues to argue that the Blomberg assay is the only means taught in the patent for determining whether its products have infringed and, therefore, is either evidence that it does not infringe under Dr. Winge's modified use of the Blomberg assay or the claims of the patent are necessarily indefinite. Since the court already rejected each of these premises on summary judgment, and Lallemand offers no new basis to reconsider, the court will reject them again.

         Next, Lallemand suggests that the court “seemingly has a fundamental scientific misunderstanding as to what the patent discloses regarding the Blomberg assay and activity in the form of rates” because that assay “precisely” measures activity as defined by the court.[1] (Id. at 9.) If Lallemand actually believes that the court ruled otherwise, then there is indeed a misunderstanding. In particular, Table 3 of the patent, as Lallemand notes, compares GPD activity in micromoles per minute, as measured by the inventors using the Blomberg assay, showing that the modified strain IMZ132 had reduced activity compared to wild-type strain IME076. (Id. at 9-10.) Setting aside the court's criticism as to the limitations of the Blomberg assay, Lallemand argues that Table 3 of the assay “shows the rates exactly as required by claim 1.” (Id. at 11.) The court has no quarrel with any of this, except that Lallemand goes on to contend that it was “manifest error” for the court to conclude that the Blomberg assay “‘was not used to determine the rate of GPD enzymatic activity in the patent-in-suit, '” as it is disclosed in the patent and the parties agree that the Blomberg assay measures some GPD activity. (Id. (quoting dkt. #167 at 41).)

         Again, Lallemand misstates the court's holding. Lallemand is free to rely on measurements of in vitro activity using the Blomberg assay to show no “reduction in the rate of the reaction catalyzed by NADH-dependent GPD, ” provided it acknowledges the limitations of that assay. At the same time, the court will not preclude DSM from showing the opposite by use of the Blomberg assay, the Abbot assay or in vivo measurements also taught in the '988 patent.

         Lallemand then argues that because the parties agree that the Blomberg assay measures GPD activity, the court should not come to a contrary conclusion. (Id. at 13-14.) The court agrees, and to the extent Lallemand reads the summary judgment decision to hold otherwise, it is again mistaken. Where the court has admittedly helped to sew confusion was in suggesting that Blomberg assays cannot be used to measure reduction in GPD2 activity. Although this was essentially Drs. Alper's and Pfleger's opinion (and Dr. Winge effectively conceded as much by purporting to measure that activity using his own modified version of the Blomberg assay not yet scientifically proven effective, much less peer reviewed), Lallemand cites to Dr. Winge's reliance on the Geertman article as an example of the Blomberg assay's use to measure GPD2 activity. (Id. at 14-15.) While Geertman and articles lifted by Lallemand from Professor Alper's report, appear to use the Blomberg assay for in vitro measurements in a manner similar to that taught in the '998 patent[2] -- at full saturation and with both GPD1 & 2 eliminated or overexpressed -- the court agrees that the parties and their experts may rely upon these arguably conflicting scientific studies before the jury.

         Lallemand also contends that Professor Winge's research identified conditions under which assays could measure GPD2 activity so that the court's conclusion that “there is no recognized authority or peer-reviewed study that supports [Winge's] creative change in the Blomberg assay” was contradicted by “clear record evidence.” (Id. at 17.) Although skeptical for reasons explained already at summary judgment and during the discussions at the final pretrial conference, the court will allow a further proffer during the court's telephonic conference on Thursday, May 3rd. Ultimately, however, Winge's acknowledgement that there were no peer-reviewed articles or regression analyses supporting the efficacy of his modifications to the Blomberg assay would seem dispositive on this issue, even if “multiple peer-reviewed references specifically warn about magnesium effects on GPD2 and . . . Dr. Winge took those warnings into account.” (Id. at 18.)[3]

         Next, Lallemand challenges as unsupported the court's finding that glycerol synthesis was “the only recognized measure of GPD activity” in the patent, which the court agrees was not accurate since the Blomberg assay was recognized to detect GPD activity, or at least the absence of such activity when GPD1 & 2 expression was completely eliminated, although not GPP activity. Likewise, Lallemand argues that glycerol synthesis is not the only method for measuring GPD and GPP activity (or more specifically, that there is no support for this finding). Again, the court agrees, although it disagrees ...

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