United States District Court, D. New Jersey
Curver Luxembourg, SARL ("Curver") is the owner of
a design patent, No. D677, 946 ("the '946
Patent"), which claims an overlapping "Y"
design. Curver alleges that Home Expressions Inc. ("Home
Expressions") makes and sells a basket that incorporates
this design and therefore infringes the '946 Patent. In
an opinion filed on January 8, 2018, I stated my reasons for
granting defendant Home Expressions' motion to dismiss
the Complaint. ("Op." ECF no. 17). Now before the
Court is Curver's motion (ECF no. 19) for reconsideration
of that decision. For the reasons stated herein, the motion
standards governing a motion for reconsideration are well
settled. See generally D.N.J. Loc. Civ. R. 7.l(i).
Reconsideration is an "extraordinary remedy," to be
granted "sparingly." NL Indus. Inc. v.
Commercial Union Ins. Co., 935 F.Supp. 513, 516 (D.N.J.
1996). Generally, reconsideration is granted in three
scenarios: (1) when there has been an intervening change in
the law; (2) when new evidence has become available; or (3)
when necessary to correct a clear error of law or to prevent
manifest injustice. See North River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995);
Carmichael v. Everson, 2004 WL 1587894, at *1
(D.N.J. May 21, 2004). Local Rule 7.l(i) requires such a
motion to specifically identify "the matter or
controlling decisions which the parry believes the Judge or
Magistrate Judge has overlooked." Id.; see also
Egloff v. New Jersey Air Nat'l Guard, 684 F.Supp.
1275, 1279 (D.N.J. 1988). Evidence or arguments that were
available at the time of the original decision will not
support a motion for reconsideration. Damiano v. Sony
Music Entm't, Inc., 975 F.Supp. 623, 636 (D.N.J.
1997); see also North River Ins. Co., 52 F.3d at
1218; Bapu Corp. v. Choice Hotels Int'l, Inc.,
2010 WL 5418972, at *4 (D.N.J. Dec. 23, 2010) (citing P.
Schoenfeld Asset Mgmt. LLC v. Cendant Corp., 161
F.Supp.2d 349, 352 (D.N.J. 2001)).
argues that I should reconsider my decision because
"neither party briefed the issue of prosecution history
estoppel, which has resulted in a manifest error of
law." True, I discussed whether Curver had surrendered
part of the scope of its claim (or failed to claim at all)
with regard to items other than chairs. I concluded that
Curver had purposely narrowed the scope of its claims in
order to induce the examiner to allow the patent. That
holding I still believe to be correct, and it is also but one
of two alternative holdings. Having reached that conclusion,
I conceded the issue arguendo and construed the
patent itself: "Nevertheless, to remove doubt, I will
for purposes of argument concede the issue of prosecution
history estoppel and construe the scope of the patent
directly." (Op. 14)
alternative, I concluded that this design patent did not, as
a matter of claim construction, extend to other articles of
manufacture. (Op. 14-15 (citing P.S. Products, Inc. v.
Activision Blizzard, Inc., 140 F.Supp.3d 795, 801-03
(E.D. Ark. 2014); Kellman v. Coca-Cola Co., 280
F.Supp.2d 670, 679-80 (E.D. Mich. 2003); Vigil v. Walt
Disney Co., C-97-4147, 1998 U.S. Dist. LEXIS 22853, at
*9-10 (N.D. Cal. Dec. 1, 1998).) So even assuming that Curver
intended to claim coverage of other articles of manufacture,
"what Curver got, as opposed to what it asked for, was a
patent that protects against infringement for a particular
"Y" design on chairs only." (Op. 15)
as before, argues that a design patent, as a matter of law,
should be deemed to extend to other items of manufacture.
This is not a new argument. Curver merely asks the court
"to rethink what it had already thought through-rightly
or wrongly." Oritani Savings & Loan
Ass'n v. Fidelity & Deposit Co., 744 F.Supp.
1311, 1314 (D.N.J. 1990).
has one new argument. It now cites case which, in its view,
hold that a design on one article of manufacture anticipated
a design on another, Because anticipation and infringement
are equivalent, it says, those cases imply that design
patents apply to all articles of manufacture, and this
court's construction of this patent must therefore have
been incorrect. A reconsideration motion is not the place for
such new arguments, which I will not consider.
foregoing reasons, I deny Curver's motion for
reconsideration. (ECF no. 19) An appropriate order
accompanies this opinion.
 The argument is weak in any event;
Curver reads too much into the cases when it finds an implied
holding that design patents extend to all items of
Curver cites Application of Glavas, 230 F.2d
447 (C.C.P.A. 1956), which involved an obviousness challenge
to a design patent for an inflatable swimmer's float. A
design, the court said, might be suggested by prior art that
disclosed an article of substantially the same appearance,
but the court did not open die door to die kind of universal
coverage suggested here. Glavas stated, for example,
that while a prior patented design on a pillow might
naturally render die float's design obvious, the same did
not hold true for prior designs on a bottle, a razor
blade sharpener, or a bar of soap, because those designs did
not suggest application of die design to a float.
Curver also cites Int'l Seaway Trading Corp,
v. Walgreens Corp.,589 F.3d 1233 (Fed. Cir. 2009).
There, the Court abandoned die "point of novelty"
test and confirmed that "ordinary observer" test is
appropriate for a claim of anticipation, just as it is for a
claim of obviousness. The case itself, however, involved
comparisons of insole designs for footwear. It does not
suggest that a court must construe a patented design to cover
all articles of manufacture. At any rate, I did apply the
"ordinary observer" test to die uncontested
documents and depictions of the design. Curver's indirect