Opinion
No. C 06-1066 PJH.
February 24, 2009
ORDER GRANTING MOTION FOR LEAVE TO SEEK RECONSIDERATION
Before the court is defendants' request for leave to file a motion for reconsideration regarding the court's February 6, 2009 order granting summary judgment in part and denying summary judgment in part. Defendants generally seek to have the court reconsider the aspect of its decision that denied defendants' motion for summary judgment as to anticipation based on a prior art reference by Wijay. Specifically, defendants argue first, that with respect to the `255 patent, the court erred in finding that a disputed issue of material fact exists regarding Wijay's disclosure of U-shaped flexure members. Second, they contend that the court erred in denying defendants' motion but simultaneously granting plaintiff's motion vis-a-vis the `037 patent, in view of the court's acknowledgment that defendants could reasonably argue the existence of an alternative embodiment covered by Wijay that includes a single bend in the cross-tie.
Having reviewed defendants' request, the court hereby DENIES the request, to the extent based on the first above-referenced ground. The court GRANTS, however, defendants' request to seek reconsideration of the court's summary judgment order on the second ground urged by defendants — i.e., that anticipation arguments based on Wijay, and specifically, arguments going to the non-sinusoidal limitation of the `037 patent claims — raise triable issues of material fact that must be decided by the trier of fact.
Construing the instant request for leave as defendants' actual motion for reconsideration, and pursuant to Civil Local Rule 7-9(d), the court hereby instructs plaintiffs to file an opposition to defendants' request no later than March 6, 2009. Any reply brief shall be filed by defendants no later than March 13, 2009. The opposition brief shall not exceed 10 pages, and the reply brief may not exceed 5 pages in length. The parties' arguments are limited to the issues upon which defendants' request is granted.
The court will thereafter take the matter under submission, and issue a ruling on the papers.