Thursday, October 28, 2010

Internet Search Using "Less-Than-Mainstream Search Engine" Did Not Show That Prior Art Publication Was "Readily Available Public

Information" And Therefore Not "Newly Discovered Evidence" Under FRCP 60

In denying defendant's motion for relief from judgment of infringement on the basis of newly discovered evidence, the court concluded that a prior art publication was not in defendant's possession at the time of trial or could not have been discovered with reasonable diligence. "[I]t is not apparent that the [new prior art] publication was readily available to the public such that [defendant] could have discovered it upon a diligent search of the internet. In opposition to [defendant's] motion, [plaintiff] attaches the results of an internet search it performed, which contains a link to the [new prior art] publication. [Plaintiff], however, performed its search on a less-than-mainstream search engine, using search terms contained in the title of the publication rather than terms that were relevant and in dispute in this case. The search revealed 56,400 results, and the [new prior art] publication was on the page containing results 91-100. [Defendant] used the same terms to conduct a search on Google, and the Sprague article did not appear among the first 100 results. [Plaintiff], itself, was not aware of the [new prior art] publication until after the start of trial. Therefore, the [new prior art] publication was not readily available to the public and constitutes newly discovered evidence within the meaning of Rule 60(b)(2)."

Presidio Components Inc. v. American Technical Ceramics Corp., 3-08-cv-00335 (CASD October 26, 2010, Order) (Gonzalez, J.)

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