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FMC Technologies, Inc. v. Onesubsea IP UK Ltd.

United States District Court, S.D. Texas, Houston Division

January 16, 2020

FMC TECHNOLOGIES, INC., Plaintiff,
v.
ONESUBSEA IP UK LIMITED, et al., Defendants.

          MEMORANDUM AND ORDER

          NANCY F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE

         This patent infringement case is before the Court on the Renewed Motion for Reconsideration of the Court's Order Granting Summary Judgment of Invalidity (“Motion”) [Doc. # 147] filed by OneSubsea IP UK Limited and OneSubsea LLC (collectively, “OneSubsea”), to which FMC Technologies, Inc. (“FMC”) filed a Response [Doc. # 148], and OneSubsea filed a Reply [Doc. # 153]. The Court has carefully reviewed the record and the applicable legal authorities. Based on that review, the Court denies the Motion.

         I. BACKGROUND

         OneSubsea IP UK Limited is the owner of United States Patent No. 9, 945, 202 (“the '202 Patent”). The patent application was filed March 27, 2017, and the '202 Patent was granted April 17, 2018.

         FMC manufactures and sells versions of a vertical subsea well completion system that are designed to withstand higher pressures and temperatures found in more extreme and deeper water environments. The product is referred to as a High-Pressure High-Temperature Enhanced Vertical Deepwater Tree (“HPHT EVDT”). There is a version rated for up to 15, 000 pounds per square inch of pressure (“15ksi”) and up to 400 degrees Fahrenheit (the “15k/400F HPHT EVDT”). There is another version rated for up to 20, 000 pounds per square inch of pressure (“20ksi”) and up to 350 degrees Fahrenheit (the “20k/350F HPHT EVDT”). The two versions of the HPHT EVDT were developed together and are materially identical. FMC has presented evidence that the 15k/400F HPHT EVDT was completed before the 20k/350F version because it was needed for a Shell Offshore, Inc. (“Shell”) project.

         OneSubsea alleged that FMC infringed the claims of the '202 Patent through the HPHT EVDT system rated for 20ksi. See Amended Counterclaims [Doc. # 87], ¶ 17. OneSubsea alleged also that its claims were not limited to 20ksi systems. See id., ¶ 18.

         FMC filed a Motion for Summary Judgment of Invalidity. FMC argued that if OneSubsea's assertion that the 20k/350F HPHT EVDT is infringing were accepted as true, then the sale to Shell of the FMC 15k/400F HPHT EVDTs constituted a prior sale that invalidated the '202 Patent under the “on-sale bar” in 35 U.S.C. § 102(a)(1).[1]By Memorandum and Order [Doc. # 135] entered September 24, 2019, the Court granted FMC's Motion for Summary Judgment of Invalidity. The Court held that FMC had presented evidence that, before the March 2017 application date for the '202 Patent, FMC “had developed CAD designs that were sufficient in nature to allow its engineers to manufacture the device and sufficient to entice Shell to purchase 10 of the 15k/400F HPHT EVDTs.” Id. at 17-18. The Court stated also that although FMC had “the burden of proving that the EVDTs sold to Shell met all the limitations of the claims in the '202 Patent, that burden is satisfied by OneSubsea's allegation in paragraph 17 of its Amended Counterclaims [Doc. # 87] that the materially identical accused device (the 20k/350F HPHT EVDT) infringes the '202 Patent.” Id. at 14 n.9.

         On October 21, 2019, OneSubsea filed a motion seeking reconsideration of the Court's ruling. See Sealed Motion for Reconsideration [Doc. # 138]. OneSubsea argued that FMC failed to present direct evidence of a complete design prior to the March 2017 filing date of the '202 Patent. OneSubsea noted specifically that FMC failed to submit the relevant CAD design, referred to as DM100197333 Rev 02 (“Rev 02 Schematic”). See Id. at ECF p. 9. Although the Rev 02 Schematic was not attached as an exhibit to FMC's Motion for Summary Judgment, it was listed in Exhibit 11, the Shell Variation Order Request (VOR) Form signed by Shell and FMC in September 2015 (the “2015 VOR”). See Exh. 11 to Motion [Doc. # 107-10], at ECF p. 26.

         On October 23, 2019, OneSubsea filed a Notice of Withdrawal of Motion for Reconsideration [Doc. # 140]. OneSubsea represented to the Court that FMC had recently produced a copy of the Rev 02 Schematic, and that it “provides direct evidence of facts established previously by inferences drawn against non-movant OneSubsea.” See Id. at 1. By Order [Doc. # 141] entered October 23, 2019, the Court accepted the Notice and ordered the October 21, 2019 Motion for Reconsideration [Doc. # 138] withdrawn.

         On December 11, 2019, OneSubsea filed the pending Renewed Motion for Reconsideration [Doc. # 147]. OneSubsea argues that the Rev 02 Schematic recently produced by FMC could not have been shown to Shell in 2015. Specifically, OneSubsea challenges the validity of the 2014 dates on the Rev 02 Schematic because it has a footer containing an October 22, 2019 date, and because the Title Block includes the company logo of TechnipFMC, a company that did not exist until 2017. Based on the assertion that the Rev 02 Schematic has been “altered or fabricated, ” OneSubsea argues that FMC “has no direct evidence of what was offered in 2015, ” and again argues that the Court's prior ruling was “improperly based upon inferences adverse to the non-movant.” See Motion, ECF p. 6 (emphasis in original). OneSubsea's Renewed Motion for Reconsideration has been fully briefed and is now ripe for decision.

         II. RULE 54(b) STANDARD

         Rule 54(b) of the Federal Rules of Civil Procedure allows a party to seek reconsideration of interlocutory orders and authorizes the district court to revise at any time an order or other decision that does not end the case. See Austin v. Kroger Texas, L.P., 864 F.3d 326, 336 (5th Cir. 2017) (citing Fed.R.Civ.P. 54(b)). “Under Rule 54(b), the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law.” Id. (internal quotation marks and citations omitted). Rule 54(b) motions are disfavored. See PYCA Indus., Inc. v. Harrison County Waste Mgmt., 81 F.3d 1412, 1421 (5th Cir. 1996).

         III. ANALYSIS

         A. Summary Judgment ...


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