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April 13, 2000


The opinion of the court was delivered by: Penn, District Judge.


This matter is before the Court on plaintiff's Rule 60(b)(2) Motion Regarding Newly Discovered Material Evidence [# 99]. For the reasons set forth below, plaintiff's Rule 60(b)(2) motion is denied.


A. Procedural background

On November 23, 1999, this Court granted summary judgment to defendant and dismissed the above-captioned action for patent infringement, along with seven other related lawsuits.*fn1 See Memorandum of the Court ("Memorandum") (filed Nov. 23, 1999). The patent infringement action was dismissed because plaintiff conceded that he was not the actual owner of the patent.*fn2 As such, the Court concluded that Lans lacked standing to sue for the patent's infringement. Furthermore, since Lans had no standing, his motion to amend the complaint in order to substitute plaintiffs was also denied.*fn3 On December 22, 1999, Lans filed a notice of appeal to the United States Court of Appeals for the Federal Circuit.*fn4

On January 24, 2000, Lans filed a motion pursuant to Federal Rule of Civil Procedure 60(b)(2) ("Rule 60(b)(2)"), seeking reconsideration of the Court's grant of summary judgment based on newly discovered evidence. On March 2, 2000, the Federal Circuit denied Lans's motion to stay proceedings in that forum pending this Court's resolution of the Rule 60(b)(2) motion. As the Federal Circuit noted, "when both a Rule 60(b) motion and an appeal are pending simultaneously, appellate review may continue uninterrupted. At the same time, the District Court may consider the 60(b) motion and, if the District Court indicates that it will grant relief, the appellant may move the appellate court for a remand in order that relief may be granted." See Hoai v. Vo, 290 U.S.App.D.C. 142, 146, 935 F.2d 308, 312 (1991), cited by Order of the Court (dated March 2, 2000), Lans v. Digital Equipment Corp., et al., (Fed. Cir. 2000) (No. 00-1144 et seq.).*fn5

B. Nature of the proffered newly discovered evidence

The newly discovered evidence that Lans proffers to the Court consists solely of a document entitled "Clarification-Contract." That document states, in toto:

On the 19th of October 1989 a contract was drawn up between my company Uniboard AB and me (Hakan Lans) personally. It now appears that the transfer can not be carried out at the present time since the patent is being disputed in court. In view of this the following contract is made:
The rights to the U.S. patent 4 303 986 are transferred herewith from me to my company Uniboard for one crown. Patents which are granted as a consequence of this patent are included in the transfer. The transfer means that Uniboard AB has the right to license and receive the proceeds from the patent. Uniboard AB will administer and defray the expenses of everything connected with the patent. Hakan Lans will own the patent but it would be desirable at a later date to transfer the patent to Uniboard AB. The parties will mutually represent each other when it is deemed necessary.

Saltsjobaden October 27, 1989

Uniboard AB Personally (signature) (signature) Hakan Lans Hakan Lans Ringvagen 56E Ringvagen 56E 133 00 Saltsjobaden 133 00 Saltsjobaden

Clarification-Contract (attached to Plaintiff Hakan Lans' Rule 60(b)(2) Motion Regarding Newly Discovered Evidence ("Lans Rule 60(b)(2) Motion") (filed Jan. 24, 2000)).*fn6


Federal Rule of Civil Procedure 60(b), in relevant part, provides that "on motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for . . . (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)[.]" The Court begins with an analysis of the elements which must be satisfied on a Rule 60(b)(2) motion. In order for evidence to meet the requirements of Rule 60(b)(2),

the following criteria must be met: (1) the evidence must have been in existence at the time of trial; (2) the evidence must be such that it was not and could not by the exercise of due diligence have been discovered in time to present it in the original proceeding; (3) the evidence must not be merely cumulative or impeaching; and (4) the evidence must be admissible and credible, and of such a material and controlling nature as will probably change the outcome.

In re Korean Air Lines Disaster of September 1, 1983, 156 F.R.D. 18, 22 (D.C. 1994). See also Raymond v. Raymond Corp., 938 F.2d 1518, 1527 (1st Cir. 1991); Kettenbach v. ...

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