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IN the UNITED STATES DISTRICT COURT for the DISTRICT of COLORADO Chief Judge Philip A

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IN the UNITED STATES DISTRICT COURT for the DISTRICT of COLORADO Chief Judge Philip A IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Philip A. Brimmer Civil Action No. 17-cv-02470-PAB-KLM DR. BRADLEY BARNETT, Plaintiff, v. SUREFIRE MEDICAL, INC. Defendant. ORDER This matter is before the Court on Surefire’s Motion to Strike [Plaintiff’s] Jury Demand [Docket No. 90], Surefire’s Motion for Reconsideration [Docket No. 94], and Plaintiff’s Motion for Trial Before an Advisory Jury [Docket No. 97]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331. I. BACKGROUND This case involves a patented design for an anti-reflux catheter.1 While plaintiff Dr. Bradley Barnett (“Barnett”) was a medical student at Johns Hopkins University in 2007, he worked on an invention called the “Fusion Drug Delivery System” (“FDDS”). Docket No. 88 at 2. One of his mentors and supervisors at Johns Hopkins, Dr. Aravind Arepally (“Arepally”), cofounded defendant Surefire Medical, Inc. (“Surefire”) in 2009. 1 The Court states only those facts necessary to resolve the instant motions. A more detailed background can be found in the Court’s order on the summary judgment motions. See Docket No. 88. Id. at 1-3. Surefire subsequently applied for and obtained six patents (the “Surefire patents”) for an anti-reflux catheter design, listing Arepally and three others as co- inventors. Id. at 3.2 On October 16, 2017, Barnett filed this lawsuit. Docket No. 1. The complaint brings six claims for correction of inventorship pursuant to 35 U.S.C. § 256 against Surefire, seeking to add Barnett as a named inventor on the Surefire patents. Id. at 20- 29, ¶¶ 56-106.3 Barnett contends that the Surefire patents contain “the same basic design that Barnett developed with Arepelly’s knowledge.” Id. at 1. Barnett demanded a jury trial “on all issues so triable.” Id. at 30. Surefire moved for summary judgment on the correction of inventorship claims, arguing that Barnett could not establish that he collaborated with any of the named inventors on the Surefire patents. Docket No. 59 at 11-18. In response, Barnett argued, inter alia, that the expert report of Dr. Robert Wagoner (“Wagoner”) provided circumstantial evidence of collaboration. Docket No. 66 at 16. The Court denied Surefire’s motion on September 30, 2019, agreeing with Barnett that Wagoner’s report was “sufficient corroborative evidence to establish a genuine issue of material fact as to collaboration” when taken together with (1) Barnett’s deposition testimony that he communicated the FDDS to Arepally and (2) evidence that Barnett and Arepally had an 2 Broadly speaking, an “anti-reflux catheter” is used to deliver drugs and/or other agents to specific places in the body while preventing “reflux” of those agents to parts of the body that are not targeted. See generally Docket No. 1 at 5-7, ¶¶ 11-18. 3 The complaint originally brought a claim for unjust enrichment against Arepally, which the Court dismissed. See Docket No. 50. 2 open line of communication at the time Barnett developed the FDDS. Docket No. 88 at 10-11. However, the Court granted Surefire summary judgment on the issue of damages, concluding that a correction-of-inventorship claim does not support an award of damages without some underlying claim that would enable a plaintiff to recover damages. Id. at 14.4 Following the Court’s summary judgment order, Surefire moved to strike Barnett’s jury demand, arguing that, if damages are off the table, there is no right to a jury trial on a correction-of-inventorship claim. Docket No. 90. In response, Barnett moved for the use of an advisory jury pursuant to Fed. R. Civ. P. 39(c)(1). Docket No. 97. Surefire also moved for the Court to reconsider its order denying summary judgment, arguing that the Court committed clear error in the order. Docket No. 94. II. ANALYSIS A. Motion for Reconsideration Surefire moves for the Court to reconsider its denial of summary judgment on the correction-of-inventorship claims. Docket No. 94. The Federal Rules of Civil Procedure do not specifically provide for motions for reconsideration. See Hatfield v. Bd. of County Comm’rs for Converse County, 52 F.3d 858, 861 (10th Cir. 1995). Instead, motions for reconsideration fall within a court’s plenary power to revisit and amend interlocutory orders as justice requires. See Paramount Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d 1088, 1090 (10th Cir. 4 The Court also denied Barnett’s partial motion for summary judgment. Docket No. 88 at 15-17. That determination is not before the Court in this order. 3 1980) (citing Fed. R. Civ. P. 54(b)); see also Houston Fearless Corp., 313 F.2d at 92. In order to avoid the inefficiency which would attend the repeated re-adjudication of interlocutory orders, judges in this district have imposed limits on their broad discretion to revisit interlocutory orders. See, e.g., Montano v. Chao, No. 07-cv-00735-EWN- KMT, 2008 WL 4427087, at *5-6 (D. Colo. Sept. 28, 2008) (applying Rule 60(b) analysis to the reconsideration of interlocutory order); United Fire & Cas. Co. v. McCrerey & Roberts Constr. Co., No. 06-cv-00037-WYD-CBS, 2007 WL 1306484, at *1-2 (D. Colo. May 3, 2007) (applying Rule 59(e) standard to the reconsideration of the duty-to-defend order). Regardless of the analysis applied, the basic assessment tends to be the same: courts consider whether new evidence or legal authority has emerged or whether the prior ruling was clearly in error. Cf. Alpenglow Botanicals, LLC v. United States, 894 F.3d 1187, 1203 (10th Cir. 2018) (“[A] motion for reconsideration is appropriate where the court has misapprehended the facts, a party’s position, or the controlling law.”). Motions to reconsider are generally an inappropriate vehicle to advance “new arguments, or supporting facts which were available at the time of the original motion.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Surefire argues that the Court erred by treating Dr. Wagoner’s report as evidence that could corroborate Barnett’s testimony about his communications with Arepally. Docket No. 94 at 4-8. Along the same lines, Surefire sees error in the Court’s determination that the open line of communication between Barnett and Arepally could support Barnett’s claims. Id. at 8-10. 4 The Court will deny the motion. As an initial matter, neither of these arguments was made in the original motion, see Docket No. 88 at 11 (noting Surefire’s failure to “argue that Wagoner’s opinion is insufficient to defeat summary judgment”), and therefore cannot form the basis of a motion to reconsider. See Servants of the Paraclete, 204 F.3d at 1012 (motions to reconsider are not an appropriate vehicle to advance “new arguments”). Even on its merits, however, the motion fails. “Whether the [alleged] inventor's testimony has been sufficiently corroborated is evaluated under a ‘rule of reason’ analysis,” which requires the court to evaluate “all pertinent evidence must be made so that a sound determination of the credibility of the alleged inventor's story may be reached.” Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1461 (Fed. Cir. 1998) (brackets removed). Under this standard, “the trial court must consider corroborating evidence in context, make necessary credibility determinations, and assign appropriate probative weight to the evidence to determine whether clear and convincing evidence supports a claim of co-inventorship.” Id. at 1464. “Physical, documentary, or circumstantial evidence, or reliable testimony from individuals other than the alleged inventor or an interested party, may corroborate.” Checkpoint Sys., Inc. v. All-Tag Sec. S.A., 412 F.3d 1331, 1339 (Fed. Cir. 2005). However, at the summary judgment stage, the Court may not make credibility determinations and must view the evidence in the light most favorable to the non-moving party. Id. at 1338; Bauman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001). Here, the Court – evaluating the evidence under the “rule of reason” and drawing inferences in Barnett’s favor, as it must – concluded that Dr. Wagoner’s testimony that the “inventive 5 leap” in the final invention came from Barnett’s FDDS, along with evidence that Barnett and Arepally had an open line of communication at the time of the alleged collaboration, sufficiently corroborated Barnett’s testimony that he communicated the FDDS to Arepally such that summary judgment was inappropriate. See Docket No. 88 at 10-13. Surefire offers the Court no case law indicating that this determination, evaluated under the “rule of reason” at the summary judgment stage, was clearly erroneous.5 Accordingly, the Court will deny the motion for reconsideration. B. Trial by Jury 1. Jury Demand Surefire moves to strike the jury demand in Barnett’s complaint. Docket No. 90. “When a jury trial has been demanded . [t]he trial on all issues so demanded must be by jury unless the court . finds that some or all of those issues there is no federal right to a jury trial.” Fed. R. Civ. P. 39(a)(2). The Seventh Amendment right to a jury trial applies to “[s]uits at common law.” U.S. Const. amend. 7. The Supreme Court has explained that this phrase refers to both common-law causes of action and 5 Much of Surefire’s motion challenges the use of Dr. Wagoner’s testimony as corroborative evidence. Docket No. 94 at 4-8. However, the cases cited by Surefire do not stand for the proposition that the testimony of an expert witness cannot corroborate an alleged inventor’s story. See ScentSational Techs. LLC v.
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