Research Corporation Technologies Incorporated v. Eli Lilly and Company

• Court: District Court, D. Arizona
• Decided: August 24, 2022
• Docket: 4:16-cv-00191
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Research Corporation Technologies No. CV-16-00191-TUC-SHR Incorporated, 10 Order Re: Motions for Reconsideration Plaintiff, 11 v. 12 Eli Lilly and Company, 13 Defendant. 14 15 Pending before the Court is Plaintiff RCT’s “Motion for Reconsideration on the 16 Discrete Issue of Whether Lilly’s Liability for Unjust Enrichment and Conversion Ended 17 on September 14, 2016” (Doc. 313) and Defendant Eli Lilly’s Motion for Reconsideration 18 (Doc. 314) of the Court’s October 19, 2021 Order (Doc. 309) granting in-part and denying 19 in-part both RCT’s and Lilly’s motions for summary judgment. 20 I. Standard of Review 21 “The Court will ordinarily deny a motion for reconsideration of an Order absent a 22 showing of manifest error or a showing of new facts or legal authority that could not have 23 been brought to its attention earlier with reasonable diligence.” Local Rule of Civil 24 Procedure 7.2(g)(1); see also Sch. Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 25 1255, 1263 (9th Cir. 1993) (motion for reconsideration appropriate where district court 26 “(1) is presented with newly discovered evidence, (2) committed clear error or the initial 27 decision was manifestly unjust, or (3) if there is an intervening change in controlling law”). 28 Under the Local Rules, any such motion must point out with specificity the matters the 1 movant believes were overlooked or misapprehended by the Court, any new matters being 2 raised for the first time and the reasons they were not raised earlier, and the specific 3 modifications being sought. LRCiv 7.2(g)(1). A motion for reconsideration shall not 4 “repeat any oral or written argument made by the movant in support of or in opposition to 5 the motion that resulted in the Order,” and failure to comply with Local Rule 7.2(g)(1) 6 “may be grounds for denial of the motion.” Id.; see also Kona Enters., Inc. v. Est. of 7 Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (motion for reconsideration “may not be used to 8 raise arguments or present evidence for the first time when they could reasonably have 9 been raised earlier in the litigation”). 10 Given the above, motions for reconsideration should be granted only in rare 11 circumstances. Defs. of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). 12 Such motions should not “ask the Court to ‘rethink what the court has already thought 13 through—rightly or wrongly.’” Ramirez v. Medtronic Inc., 961 F. Supp. 2d 977, 1005 (D. 14 Ariz. 2013), clarified on denial of reconsideration (Oct. 24, 2013) (citing United States v. Rezzonico, 32 F. Supp.2d 1112, 1116 (D. Ariz.1998)). Further, reconsideration is not 15 warranted just because another district court came to a different conclusion. See, e.g., Reno 16 v. W. Cab Co., No. 2:18-cv-00840-APG-NJK, 2020 WL 2462900, at *4 (D. Nev. May 1, 17 2020) (“The existence of persuasive authority reaching a contrary result does not establish 18 clear error as necessary to justify reconsideration.”). 19 Because the Ninth Circuit has not clearly defined what constitutes “manifest error” 20 or “clear error” for motions for reconsideration or Rule 59 motions, courts routinely look 21 to the “clearly erroneous” standard used in the law-of-the-case doctrine. See Teamsters 22 Loc. 617 Pension & Welfare Funds v. Apollo Grp., Inc., 282 F.R.D. 216, 231 (D. Ariz. 23 2012). Under that standard, mere disagreement “about the wisdom of a prior decision . . . 24 will not suffice”; rather, the decision must strike the court as more than just “maybe or 25 probably wrong”—it must be “dead wrong.” Id. Similarly, courts in the Ninth Circuit 26 have looked to Black’s Law Dictionary and found: “A manifest error of fact or law must 27 be one ‘that is plain and indisputable, and that amounts to a complete disregard of the 28 controlling law or the credible evidence in the record.’” Id. (quoting In re Wahlin, 10- 1 20479-TLM, 2011 WL 1063196, at *2 (Bankr. D. Idaho Mar. 21, 2011)). 2 II. RCT’s Motion1 3 RCT asks the Court to reconsider its “holding that RCT’s claims for unjust 4 enrichment (Count VI) and conversion (Count V) may proceed only up to September 14, 5 2016,” because “there is no legal basis for limiting the duration of Lilly’s liability for unjust 6 enrichment and conversion to either the natural expiration date of the Agreement nor the 7 expiration date of the last patent right.”2 (Doc. 313 at 1–2.) 8 A. The Court Limited Lilly’s Liability to the Expiration of the Patent Rights 9 RCT argues “Lilly’s liability for unjust enrichment and conversion is not limited to 10 what would have been the Agreement’s natural expiration date.” (Doc. 313 at 3.) That is 11 not, however, why the Court limited RCT’s claims to September 14, 2016. The Court 12 limited damages to “the period between June 30, 2016 (when RCT terminated the 13 Agreement) and September 14, 2016 (when the last patent rights expired)” because it was 14 undisputed the last Patent Rights expired on that date. (Doc. 309 at 22–23.) As set forth below, RCT is not entitled to damages after the relevant patents have expired irrespective 15 of the Agreement’s natural expiration date. 16 As explained in this Court’s October 19 Order, Lilly breached the Agreement and 17 RCT effectively terminated the Agreement pursuant to ¶ 10.2 on June 29, 2016, so Lilly’s 18 right to an irrevocable license never arose. However, the irrevocable license was not the 19 basis of the Court’s decision. Rather, the Court found Lilly’s liability is limited to 20 September 14, 2016, because that is the date the last of the Patent Rights expired—a fact 21 that was undisputed at summary judgment. (Compare Doc. 2373 ¶¶ 19–20 (acknowledging 22 “[t]he expiration date of the last to expire of the Patent Rights (Canadian Patent No. 23 24

25 1Upon further review of the record, the Court notes Footnote 4 of the October 19, 2021 Order incorrectly stated: “Lilly derived SMD1163 from various Pichia DNA 26 fragments from the Host Strains Phillips provided under the Agreement.” (Doc. 309 at 3, n.4.) Rather, “Phillips provided the Pichia strain SMD1163 to Lilly on April 23, 1992.” 27 (Compare Doc. 249 at 10, ¶ 45 with Doc. 261 at 28, ¶ 45.) 2It was undisputed at summary judgment that the last of the Patent Rights and the 28 Agreement both expired on September 14, 2016. 3Lilly’s Statement of Fact in Support of its Motion for Summary Judgment (“SOF”). 1 1340733) was September 14, 2016”) with Doc. 2684 at 10–11, 34 (disputing DSOF 20 but 2 acknowledging “the Sept. 14, 2016 expiration of the last Patent Rights”)). Lilly, however, 3 in its Response to RCT’s Motion, now appears, for the first time, to dispute RCT’s assertion 4 regarding when the Patent Rights expired, and contends “the patent RCT cites there is not 5 a U.S. patent; it is a Canadian patent.” (Doc. 322 at 5, n.3.) This issue which was never 6 presented in the pleadings or at oral argument appears relevant to damages—not the 7 Court’s underlying summary judgment ruling. Nonetheless, this issue appears to involve 8 a question of law appropriate for the Court to resolve before trial. Accordingly, the Court 9 grants Lilly leave to file a motion on the issue of whether and how the earlier expiration of 10 the U.S. patent, versus the Canadian patent, limits RCT’s ability to recover damages. 11 B. The Expiration of the Patent Rights Limits RCT’s Recovery Period 12 RCT asserts Lilly’s liability for unjust enrichment and conversion is “unrelated to, 13 and not limited by, the September 14, 2016, expiration of the last patent right.” (Doc. 313 14 at 4.) RCT argues because the Agreement contained two separate license grants—a “license under the Patent Rights” and a “license to use Expression Technology”—RCT’s 15 property rights in the Expression Technology are “distinct from, and survive the expiration 16 of, any or all of the patent rights.” (Id. at 4.) Therefore, according to RCT, “Lilly’s 17 contractual obligation to return and stop using the biological materials persists beyond the 18 expiration of the last patent rights,” and Lilly’s noncompliance with those obligations 19 unjustly enriched Lilly, irrespective of the status of any patent right. (Id. at 4–5.) RCT 20 further contends there is no dispute Expression System SMD1163/pLGD43 is not, and 21 never has been, in the public domain; rather, after the expiration of the last patent rights 22 (which RCT asserts was September 14, 2016), anyone was free to use the publicly available 23 Pichia materials and information in the public domain to construct a new expression 24 system.5 (Id. at 5.) RCT argues, however, that Lilly did no such thing, but rather used 25

26 4RCT’s Response to Lilly’s SOF and Controverting Statement of Fact. 5Lilly contends “it is undisputed that SMD1163 has long been a concept within the 27 public grasp—and thus cannot be a basis for RCT” to recover a royalty-like award 28 premised on Lilly’s use of it. (Doc. 313 at 5; Doc. 222 at 9, n.4.) Specifically, Lilly asserts RCT’s employees have testified the genotype for SMD1163 was “publicly known and 1 RCT’s materials and information to construct SMD1163/pLGD43 and Lilly continues to 2 use that Expression System and RCT’s materials, in violation of its contractual obligation 3 to return them upon RCT’s cancellation of the Agreement. (Id.) Therefore, RCT asserts, 4 Lilly’s liability for continuing to retain and use those materials “is not limited by the 5 existence or absence of any patent rights” because RCT’s “unjust-enrichment claim springs 6 not from an attempt to enforce intellectual property rights, but instead from [Lilly’s] 7 wrongful use of [RCT]’s proprietary materials.” (Id. at 5–6 (quoting Univ. Colo. Found., 8 Inc. v. Am. Cyanamid Co., 342 F.3d 1298, 1306–07 (Fed. Cir. 2003) (alterations in 9 original))). 10 In response, Lilly asserts “[i]t is undisputed that the last-asserted U.S. patents 11 expired long before the [Agreement] terminated in 2016” and a party cannot recover 12 royalties based on expired patent rights, as explained by the United States Supreme Court 13 in Brulotte v. Thys Co., 379 U.S. 29, 31 (1964), and Kimble v. Marvel Ent., LLC, 576 U.S. 14 446, 449 (2015). (Doc. 322 at 4–5.) Lilly argues RCT “cannot escape Brulotte by relying on the fact the Agreement contains a hybrid license” because, as the Ninth Circuit 15 explained in Kimble v. Marvel Enters. Inc., 727 F.3d 856, 857 (9th Cir. 2013), aff’d sub 16 nom. Kimble, 576 U.S. 446, a “hybrid” licensing agreement that encompasses both patent 17 and non-patent rights is unenforceable beyond the expiration of the underlying patent, 18 unless the agreement provides a discounted rated for the non-patent rights, or some other 19 indication that the non-patent rights are not leveraged on the patent rights. (Id. at 6.) 20 According to Lilly, because the Agreement contains no such discounted rate for non-patent 21

22 published” as early as 2012 or 2013, and academic materials indicate it was publicly 23 available as early as 1998. (Doc. 322 at 9, n.4.) Thus, the parties now apparently dispute whether SMD1163 was ever or is currently in the public domain. (Compare Doc. 313 at 5 24 (“SMD1163 is not now, and has never been, publicly available”) with Doc. 322 at 9, n.4 (“it is undisputed that SMD1163 has long been a concept within the public grasp” and 25 noting the U.S. patent expired in 2014)). It is unclear to the Court why this dispute was 26 not previously raised at summary judgment. However, this factual dispute does not constitute a “showing of new facts . . . that could not have been brought to [the Court’s] 27 attention earlier with reasonable diligence.” LRCiv 7.2(g)(1). Accordingly, the Court will 28 not rethink what it has already thought through based on this newly presented factual dispute. See Ramirez, 961 F. Supp. 2d at 1005; LRCiv 72.(g)(1). 1 rights, “Brulotte’s per se rule forecloses RCT’s attempt to recover a 2% royalty for conduct 2 that occurred after all of the U.S. patent rights expired.” (Doc. 322 at 6.) Lilly also argues 3 RCT cannot skirt Brulotte by asking for damages under unjust enrichment or conversion 4 because the Agreement governs the parties’ conduct, even after termination. (Id. at 8.) 5 In Brulotte, the Supreme Court held “a patentee’s use of a royalty agreement that 6 projects beyond the expiration date of the patent is unlawful per se.” 379 U.S. at 32. There, 7 the respondent, who owned several patents for hop-picking, sold a hop-picking machine to 8 each of the petitioners for a flat sum and issued licenses for its use. Id. at 29. The minimum 9 royalty for each machine was $500 for each hop-picking season, or $3.33 per 200 pounds 10 of dried hops harvested by the machine, whichever was greater. Id. The licenses listed 11 twelve patents (though only seven were incorporated into the machines) and of those seven, 12 the last patent expired in 1957; the licenses, however, continued beyond 1957, and the 13 royalty fee in the licenses was the same before and after the last patent expired. Id. at 30. 14 The Supreme Court explained Congress had granted inventors “the exclusive right” to 15 make, use, or sell their discoveries “for limited times.” Id. (citing U.S. CONST. art. I, § 8 and 35 U.S.C. § 154). After the relevant period expires, “these rights become public 16 property.” Id. at 31; see also Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 185 (1896) 17 (“It is self-evident that on the expiration of a patent the monopoly created by it ceases to 18 exist, and the right to make the thing formerly covered by the patent becomes public 19 property.”). Any attempt to continue the patent monopoly beyond the expiration date “runs 20 counter to the policy and purpose of the patent laws.” Brulotte, 379 U.S. at 31 (internal 21 citation omitted). The Brulotte Court found that because the licenses made no distinction 22 “between the term of the patent and the post-expiration period,” they were “on their face a 23 bald attempt to exact the same terms and conditions for the period after the patents have 24 expired as they do for the monopoly period.” Id. at 32. 25 In Kimble, the Ninth Circuit held: “a so-called ‘hybrid’ licensing agreement 26 encompassing inseparable patent and non-patent rights is unenforceable beyond the 27 expiration date of the underlying patent, unless the agreement provides a discounted rate 28 for the non-patent rights or some other clear indication that the royalty at issue was in no 1 way subject to patent leverage.” 727 F.3d at 857. There, appellant (Kimble) invented a 2 Spider-Man toy that allows the user to shoot foam string from a can mounted on the wrist 3 to mimic Spider-Man’s web-slinging, and met with Marvel Enterprises to discuss his toy, 4 which was covered by a pending patent application, and other ideas. Id. at 857–58. After 5 the meeting, Marvel told Kimble they were not interested, but then began making and 6 selling a similar Spider-Man toy it called the “Web Blaster,” which also shot foam string 7 from a can mounted on the wrist. Id. Kimble sued Marvel for patent infringement and 8 breach of contract; the district court granted summary judgment on the patent-infringement 9 claim and a jury found in favor of Kimble on the breach-of-contract claim. Id. at 858. The 10 parties entered a settlement agreement while their appeals were pending, in which Marvel 11 agreed to buy the patent from Kimble for a lump sum and pay him 3% of net product sales. 12 Id. at 858–59. The agreement had no expiration date and no time limit on Marvel’s 13 obligation to pay Kimble the 3% of net product sales. Id. Several years later, Marvel 14 entered a licensing agreement with Hasbro, giving it the right to make several toys, including the Web Blaster; shortly thereafter, several disputes about royalties arose 15 between Kimble and Marvel. Id. at 859. Kimble filed suit for breach of contract and other 16 claims; Marvel counterclaimed, seeking a declaration it was no longer obligated to pay 17 Kimble under the settlement agreement. Id. at 860. The district court found the settlement 18 agreement was a “hybrid” and royalties had to end when the patent expired. Id. The Ninth 19 Circuit affirmed, finding that although the settlement included a hybrid license, the 20 structure of the agreement demonstrated “the rights were intertwined and [could not] be 21 separated in any principled manner,” so Brulotte applied. Id. at 864. The Court explained: 22 [A] license for inseparable patent and non-patent rights 23 involving royalty payments that extends beyond a patent term 24 is unenforceable for the post-expiration period unless the agreement provides a discount for the non-patent rights from 25 the patent-protected rate. This is because—in the absence of 26 a discount or other clear indication that the license was in no way subject to patent leverage—we presume that the post- 27 expiration royalty payments are for the then-current patent use, which is an improper extension of the patent monopoly 28 under Brulotte. 1 Id. at 863. This is so because a discounted rate for the non-patent rights “shows that the 2 royalty [of the non-patented article] was not subject to patent leverage.” Id. at 864. 3 Therefore, “in the absence of a discounted rate, there must be some other clear indication 4 that the royalty was in no way subject to patent leverage.” Id. at 865. The Ninth Circuit 5 found there was no such indication, as there were separate royalty rates for the patent and 6 other non-patent rights, but they were both 3%. Id. 7 On appeal, the Supreme Court affirmed the Ninth Circuit, explaining “all [Brulotte] 8 bars are royalties for using an invention after it has moved into the public domain,” 9 therefore, “post-expiration royalties are allowable so long as tied to a non-patent right— 10 even when closely related to a patent.” Kimble, 576 U.S. at 454. The Court gave the 11 following example: “a license involving both a patent and a trade secret can set a 5% 12 royalty during the patent period (as compensation for the two combined) and a 4% royalty 13 afterward (as payment for the trade secret alone).” Id. 14 Ostensibly, the Agreement appears to be a hybrid license, as it grants: (1) “A license under the Patent Rights to produce Product or Reagent . . .”; and (2) “A license to use 15 Expression Technology to produce Product or Reagent . . . .” (Doc. 6-1 §§ 3.1.1, 3.1.2.) 16 The Agreement, however, contains only one royalty rate for sales of Product or Reagent: 17 2% of Net Sales Value—there is not a different rate for the license under the Patent Rights 18 and the license to use Expression Technology, nor are there different rates for during the 19 patent period and after the patent expires. (See id. § 4.2.1.) Absent a clear indication that 20 the royalty was not subject to patent leverage, under Brulotte and Kimble, Lilly cannot be 21 obligated to pay royalties after the expiration of the last-asserted Patent Right. 22 As explained in the October 19 Order, Indiana law requires an “immediate, 23 unqualified right to possession resting on a superior claim of title” for conversion. Jim 24 Barna Log Sys. Midwest, Inc. v. Gen. Cas. Ins. Co. of Wis., 791 N.E.2d 816, 829 (Ind. Ct. 25 App. 2003) (internal quotations and citation omitted). And, as explained above, the Patent 26 Rights became public property when they expired. See Brulotte, 379 U.S. at 31; see also 27 Singer, 163 U.S. at 185. Therefore, RCT cannot show it had an unqualified right to 28 possession resting on a superior claim of title once the Patent Rights expired and became 1 public property. That is, RCT cannot maintain a claim for conversion beyond the 2 expiration of the Patent Rights. 3 Unjust enrichment under Indiana law requires a plaintiff to show: “(1) he rendered 4 a measurable benefit to the defendant at the defendant’s express or implied request; (2) he 5 expected payment from the defendant; and (3) allowing the defendant to retain the benefit 6 without restitution would be unjust.” Est. of Henry v. Woods, 77 N.E.3d 1200, 1204 (Ind. 7 Ct. App. 2017). Because royalty payments are “unlawful per se” under Brulotte, and the 8 Agreement itself was set to expire on the same day the Patent Rights expired, RCT cannot 9 show it expected payment from Lilly beyond the expiration of the Patent Rights. 379 U.S. 10 at 32; see also Kimble, 727 F.3d at 857. And, as explained above, although the Agreement 11 appears to be a hybrid license agreement, containing a “license under the Patent Rights” 12 and a “license to use Expression Technology,” which RCT asserts “includes biological 13 materials and (non-patented) know-how ‘useful in the production of Product or Reagent,’” 14 the Agreement contains no indication that the non-patent rights are not leveraged on the Patent Rights. Therefore, RCT cannot show it expected payment from Lilly beyond the 15 expiration of the Patent Rights, so RCT’s unjust-enrichment claim fails as a matter of law. 16 In its Response, Lilly also argues RCT’s Motion is an “attempt to expand the scope 17 of its potential recovery through unjust enrichment and conversion,” which “fails as a 18 matter of law” because Indiana law prohibits damages under unjust enrichment or 19 conversion where the parties’ behavior is governed by an express contract. (Doc. 322 at 20 1–2.) In support of this argument, Lilly relies on cases it did not cite in its summary 21 judgment briefing: Nolde Bros., Inc. v. Loc. No. 358, Bakery & Confectionery Workers 22 Union, AFL-CIO, 430 U.S. 243 (1977), and Licocci v. Cardinal Assocs., Inc., 445 N.E.2d 23 556, 559 (Ind. 1983). Lilly also provides no reasons why this authority “could not have 24 been brought to [the Court’s] attention earlier with reasonable diligence.” LRCiv 7.2(g)(1). 25 However, these cases may preclude RCT’s conversion and unjust-enrichment claims for 26 Lilly’s failure to return the materials after the Agreement was terminated as a matter of 27 law. Therefore, the Court grants Lilly leave to address this issue in a separate motion as 28 described below. 1 III. Lilly’s Motion 2 First, Lilly argues reconsideration is warranted because the Court manifestly erred 3 by not asking and answering whether, in viewing the terms of the Agreement in the light 4 most favorable to Lilly, no reasonable interpretation other than RCT’s exists. (Id. at 1, 3.) 5 Lilly relies on a 2001 case from the Seventh Circuit Court of Appeals, which reversed and 6 remanded a district court’s grant of summary judgment because the Seventh Circuit 7 concluded the contract at issue there was “susceptible to . . . alternate interpretation[s].” 8 Zemco Mfg., Inc. v. Navistar Int’l Transp. Corp., 270 F.3d 1117, 1123 (7th Cir. 2001). 9 Notably, however, Lilly did not cite to this case or make such an argument in any of its 10 summary judgment briefing. Nor did Lilly cite to any of the other three cases it relies on 11 in its instant motion6—all of which could have been brought to the Court’s attention earlier 12 with reasonable diligence. Lilly also provides no reasons why this argument or this 13 authority was not presented earlier. Presumably, Lilly now presents this argument either 14 because it disagrees with the Court’s previous order or because it did not deem this argument necessary at the time of summary judgment briefing. 15 For clarity, the Court notes the extent to which Lilly argued at summary judgment 16 that a reasonable jury could find in its favor is as follows: Lilly asserted a reasonable jury 17 could believe statements made by RCT’s president and statements made in RCT’s previous 18 complaints that would lead the jury to find Lilly’s Diabetes Drugs are not End Product 19 because they are not produced by a Pichia Expression System (Doc. 264 at 5–6); a 20 reasonable jury “could accept the opinions of Lilly’s expert witnesses, who analyzed the 21 technical documents and fact depositions and concluded that Lilly’s Diabetes Drugs are 22 not ‘produced by’ a Pichia expression system but are instead produced by an E. coli 23 expression system” (Id. at 5–7); and a reasonable jury could reject RCT’s argument that 24

25 6Lilly relies on Lightner v. Nat’l Union Fire Ins. Co. of Pittsburgh, 2005 WL1310674, at *5 (N.D. Ind. May 31, 2005), Ecorp, Inc. v. Rooksby, 746 N.E.2d 128, 131 26 (Ind. Ct. App. 2001), Vaughn v. King, 975 F. Supp. 1147, 1152 (N.D. Ind. 1997). (Doc. 314 at 1, 3, 4.) Lilly also cites to Entm’t USA, Inc. v. Moorehead Commc’ns, Inc., 2017 27 WL 3432319, at *3 (N.D. Ind. Aug. 9, 2017), which was included in Lilly’s Motion for Summary Judgment (Doc. 236 at 30); however, Lilly’s citation to that case was for the 28 proposition that “RCT cannot pursue an unjust enrichment claim that is based on the same subject matter as its contract claims”—not for its instant argument. (Doc. 5 at 1.) 1 CpB plays a critical or essential role in the manufacturing process for the Diabetes Drugs, 2 and could reject RCT’s allegations that SMD1163/pLGD43 is used in the manufacturing 3 process (Id. at 7–8). Notably, Lilly did not argue any of the terms of the Agreement are 4 ambiguous. And, as explained in the Court’s October 19 Order, the parties did not dispute 5 at summary judgment that the terms of the Agreement were unambiguous. (Doc. 309 at 6 9.) 7 As noted, a motion for reconsideration may not be used to raise arguments for the 8 first time when they could reasonably have been raised earlier. See Kona Enters., 229 F.3d 9 at 890; see also LRCiv 7.2(g). Therefore, Lilly’s argument is improper, and the Court need 10 not address it. Nonetheless, the Court notes Lilly’s reliance on Zemco is misplaced and 11 without merit. In support of Lilly’s assertion that the Court manifestly erred by not 12 expressly finding no reasonable interpretation other than RCT’s exists, when viewing the 13 terms of the Agreement in Lilly’s favor, Lilly relies on this sentence from Zemco: “Upon 14 viewing the terms of the agreement in the light most favorable to Zemco, we believe that the December Contract is susceptible to at least three distinct interpretations.” 270 F.3d at 15 1127–28. This sentence immediately follows the Seventh Circuit explaining: “contract 16 interpretation is often a question of law well suited for disposition on summary judgment. 17 However, when a contract contains ambiguities that the parties must explain through 18 extrinsic evidence, the trier of fact, not this court, must resolve the conflicting 19 interpretations of the agreement.” Id. at 1127. Above that section, the Zemco Court found 20 a genuine issue of material fact existed “concerning the precise consideration supporting” 21 the contract, so the contract was susceptible to multiple interpretations and was ambiguous, 22 and the court concluded the parties could introduce extrinsic evidence to explain those 23 ambiguities. Id. at 1124–28 (“Given the ambiguities in the December Contract and the 24 importance that resolution . . . will have on the ultimate outcome of the litigation, summary 25 judgment is precluded . . . .”). That is, the Zemco Court first found a genuine dispute of 26 material fact and ambiguities in the contract, and then viewed the terms of the contract in 27 the light most favorable to the moving party, thus applying the Anderson summary 28 judgment standard. It did not, as Lilly appears to suggest, hold a court must view the terms 1 of the contract in the light most favorable to the non-moving party when there is no genuine 2 dispute of material fact and the contract terms are unambiguous. 3 Lilly did not anywhere in its summary judgment briefing that a genuine dispute of 4 material fact exists. Similarly, Lilly did not argue the Agreement was ambiguous. Thus, 5 the Court need not have viewed the terms of the Agreement in the light most favorable to 6 Lilly—rather, the Court was tasked with applying the unambiguous terms of the Agreement 7 to the undisputed facts. That Lilly disagrees with how the Court applied those terms to the 8 facts will not suffice. See Teamsters Loc. 617, 282 F.R.D. at 231. Further, even if Indiana 9 law required a court to expressly say the prevailing interpretation is the only reasonable 10 interpretation, Lilly has not shown this Court’s lack of such a recitation amounts to a 11 complete disregard of the controlling law or renders the Court’s Order “dead wrong.” Id. 12 Accordingly, Lilly has not shown the Court manifestly erred in its Order, and 13 reconsideration is not warranted. 14 Second, Lilly argues “RCT’s interpretation might be right,” “it cannot be the only reasonable interpretation at summary judgment given the many anomalies it creates,” and 15 attempts to re-argue some of its points in its summary judgment briefing. (Doc. 314 at 4– 16 10.) Finally, Lilly asserts reconsideration is warranted because “a reasonable person could 17 disagree with the Order’s interpretation” because the “text and structure of the Agreement 18 allow for at least one interpretation other than the one adopted in the Order,” and “while 19 the Order identified aspects of the Agreement that it believed favor RCT’s reading, none 20 of these points foreclose Lilly’s contrary view or render that view unreasonable.” (Doc. 21 314 at 11–14 (emphasis in original).) Lilly further argues “it is difficult to find that no 22 ‘reasonable person’ could agree with Lilly’s reading when RCT and its lawyers themselves 23 previously agreed with it in this case.” (Id. at 14–15 (emphasis in original).) Again, Lilly 24 repeats arguments made at summary judgment. This is an improper basis for a motion for 25 reconsideration and the Court will not rethink what it has already thought through. See 26 Ramirez, 961 F. Supp. 2d at 1005; LRCiv 72.(g)(1). Rather, “arguments that a court was 27 in error on the issues it considered should be directed to the court of appeals.” Defs. of 28 Wildlife, 909 F. Supp. at 1351. 1 IT IS ORDERED RCT's Motion for Reconsideration (Doc. 313) and Lilly's Motion for Reconsideration (Doc. 314) are DENIED. 3 IT IS FURTHER ORDERED Lilly is granted leave to file a motion for summary || judgment as to whether Indiana case law precludes RCT's claims for conversion and unjust || enrichment because those claims arise from an obligation created by the Agreement and || whether the Agreement continues to govern Lilly's failure to return the materials after the 7|| Agreement was terminated. Lilly's motion shall not exceed seven (7) pages and shall be 8 || filed on or before Friday, September 9, 2022. RCT's response shall not exceed seven (7) || pages and shall be filed within fourteen (14) days of the filing of Lilly's motion. Lilly's 10 || reply shall not exceed four (4) pages and shall be filed within seven (7) days of the filing 11 || of RCT's response. 12 IT IS FURTHER ORDERED Lilly is granted leave to file a separate motion from □□ the one described above, addressing whether and how the earlier expiration of the U.S. || Patent(s), versus the Canadian patent that expired on September 14, 2016, limits the || damages RCT may recover under Brulotte and Kimble. Such motion shall not exceed seven 16 (7) pages and shall be filed on or before Friday, September 9, 2022. RCT's response shall 17|) net exceed seven (7) pages and shall be filed within fourteen (14) days of the filing of 18 Lilly's motion. Lilly's reply shall not exceed four (4) pages and shall be filed within seven 19 (7) days of the filing of RCT’'s response. 20 IT IS FURTHER ORDERED the parties shall file their Joint Proposed Pretrial Order within 60 days of this Order. 59 Dated this 23rd day of August, 2022. 23

Aa: 26 cited States District Fudge 27 28

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