Neurografix v. Brainlab, Inc., No. 12 C 6075, Slip Op. (N.D. Ill. Feb. 26, 2020) (Kennelly, J.)

Judge Kennelly denied plaintiffs’ (collectively “Neurografix”) motion for reconsideration of the Court’s order granting defendants (collectively “Brainlab”) summary judgment on lost profits in this patent case tractographies.

Fed. R. Civ. P. 54(b) allows a court to reconsider interlocutory rulings at any time before entry of a final judgment, but only to correct “manifest errors of law or fact or to present newly discovered evidence.” The underlying decision found that Neurografix offered no evidence that it had the manufacturing or marketing resources to capitalize on the demand should Brainlab have not been in the tractography market. The only evidence was “speculative” plans without evidence of the ability to develop or market the necessary service. In its reconsideration motion, Neurografix argued the Court ignored their argument that they were entitled to lost profits for preoperative tractographies, not just intraoperative tractographies. But in the summary judgment papers, Neurografix only referenced preoperative tractographies once, to say they were not acceptable, non-infringing substitutes. And Neurografix cited to no evidence of their capacity to manufacture and sell the products to meet the needs of Brainlab’s customers.

Finally, it was not an error to decide summary judgment before the end of discovery. Had Neurografix believed additional discovery was required, it could have sought time to complete the discovery before responding to the motion. It did not.