ORDER DENYING FITNESS ANYWHERE'S MOTION FOR LEAVE TO FILE FOR RECONSIDERATION

BETH LABSON FREEMAN, District Judge.

Eight and a half months ago, on August 23, 2016, the Court granted in part and denied in part Defendant Woss Enterprises LLC's ("Woss") motion for summary judgment, finding among other things that U.S. Patent No. 7,806,814 ("the '814 patent") was invalid as obvious under 35 U.S.C. § 103. ECF 149 ("Order"). Since then, the Court has held a seven-day jury trial on the sole patent that survived summary judgment, U.S. Patent No. 7,044,896 ("the '896 patent"). Concurrent with its briefing on post-trial matters relating to the '896 patent, Plaintiff Fitness Anywhere LLC ("TRX") brings this Motion for Leave to File for Reconsideration of the Finding of Invalidity of the '814 Patent. ECF 247 ("Mot."). For the reasons discussed below, TRX's motion is DENIED.

I. LEGAL STANDARD

A motion for leave to file a motion for reconsideration may be filed prior to the entry of a final judgment in the case. Civ. L.R. 7-9(a). "The moving party must specifically show reasonable diligence in bringing the motion" and one of the following circumstances:

Civ. L.R. 7-9(b). Reconsideration is an "extraordinary remedy, to be used sparingly[.]" Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).

II. DISCUSSION

TRX argues that it is entitled to reconsideration under Civil L.R. 7-9(b)(2) because there has been a "change of law occurring after the time of [the Court's summary judgment] order." In the Court's summary judgment order, it found that a person of ordinary skill in the art would have been motivated to modify U.S. Patent No. 7,090,622 (the "'622 patent") in light of the teachings of the '896 patent to produce the claimed invention of the '814 patent, reasoning:

ECF 149 at 21 (emphasis added). TRX contends that the three bolded portions of this excerpt have since been called into question by three recent Federal Circuit decisions. Mot. 3-5.

As an initial matter, the Court is skeptical that TRX exercised "reasonable diligence in bringing [its] motion." Civ. L.R. 7-9(b). The Court issued its summary judgment decision on August 23, 2016, eight and a half months ago. ECF 149. Although two of the three recent Federal Circuit decisions that TRX cites as the basis for its motion issued within the past three months (and the other issued within the past year), the principles they implicate are older. Thus, if TRX had concerns about the legal principles guiding the Court's summary judgment decision, it seems it could have raised them sooner. Further, two of these three recent decisions issued before the Court held its February 23, 2017 final pretrial conference, so TRX could have raised at least these concerns before trial. Nevertheless, because these three decisions are, technically speaking, recent decisions that issued "after the time of [the Court's summary judgment] order," Civ. L.R. 7-9(b)(2), the Court will not reject TRX's motion on the basis of diligence alone. Instead, the Court proceeds to TRX's arguments about the three bolded portions of the Court's summary judgment order and determines whether TRX is correct that, with respect to each, there has been a "change of law occurring after the time of [the Court's summary judgment] order" that warrants leave to move for reconsideration under Civil L.R. 7-9(b)(2).

First, TRX suggests that the Court's use of the phrase "would have been obvious" reflects an understanding that, when two references can be combined to create a combination, they render that combination obvious.1 Mot. at 3. TRX argues that the Federal Circuit's decision in Pers. Web Techs., LLC v. Apple, Inc., 848 F.3d 987 (Fed. Cir. 2017) changed the law to clarify that "`it is not enough' that two references `could' or `would have allowed for' the combination." Mot. at 3 (quoting Pers. Web Techs., 848 F.3d at 994). The Court disagrees that Pers. Web Techs. qualifies as a "change of law occurring after the time of [the Court's summary judgment] order." Civ L.R. 7-9(b)(2). To the contrary, Federal Circuit decisions predating the Court's order— including two that are cited in the block quote from Pers. Web Techs. that TRX includes in its motion—have set forth this same principle. See, e.g., Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064, 1073 (Fed. Cir. 2015) ("[O]bviousness concerns whether a skilled artisan not only could have made but would have been motivated to make the combinations or modifications of prior art to arrive at the claimed invention."). Thus, TRX is not entitled to leave to move for reconsideration on this basis.

Second, TRX points to the phrase "there are a finite number of identified, predictable solutions" as suggesting that missing claim elements from the prior art could be "filled in" in an obviousness analysis "because a skilled artisan could envision them."2 Mot. at 4. TRX argues that the Federal Circuit's decision in Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co. Ltd, 851 F.3d 1270 (Fed. Cir. 2017) changed the law to hold that "finite number of identified, predictable solutions" only refers to solutions that already exist in the art. Mot. at 4. The Court disagrees with TRX's reading of Nidec. Nidec was a decision on anticipation (not obviousness), and one that reinforced one of the most fundamental principles in the law on anticipation: that "each and every limitation" must be expressly or inherently found in the prior art reference. Nidec, 851 F.3d at 1273-74. Thus, Nidec says nothing about whether "finite number of identified, predictable solutions"—an obviousness rationale—must only refer to solutions that already exist in the art. On the contrary, anticipation and obviousness are fundamentally different questions, and claims can be obvious even when some of their elements are not precisely disclosed in the prior art. Nike, Inc. v. Adidas AG, 812 F.3d 1326, 1335 (Fed. Cir. 2016) ("A claimed invention may be obvious even when the prior art does not teach each claim limitation, so long as the record contains some reason why one of skill in the art would modify the prior art to obtain the claimed invention."). Accordingly, Nidec also does not constitute a "change in law" under Civil L.R. 7-9(b)(2) and TRX is not entitled to leave to move for reconsideration on this basis.

Finally, TRX points to the Court's statement that "[t]he addition of a second loop, which passed through the grip, combines simple elements disclosed in prior patents," and argues that the Federal Circuit's decision in Apple Inc. v. Samsung Elecs. Co., 839 F.3d 1034 (Fed. Cir. 2016) cast a shadow on this statement because it "held that presenting the [sic] `motivation to combine' references was a question of fact for the jury." Mot. at 4-5. The Court finds that here too TRX has failed to identify a "change in law" under Civil L.R. 7-9(b)(2). It has long been the case that motivation to combine is a question of fact, so the Federal Circuit's articulation of this principle in Apple is not a "change in law." To the extent that TRX suggests that Apple newly holds that motivation to combine must be resolved by the jury (and not by the Court on summary judgment), this is simply incorrect. Indeed, the Federal Circuit has continued to affirm finding obviousness at summary judgment since its decision in Apple. See, e.g., 3form, Inc. v. Lumicor, Inc., No. 2016-1535, 2017 WL 443652, at *6 (Fed. Cir. Feb. 2, 2017). Thus, TRX's third basis also does not entitled it to leave to move for reconsideration.

In sum, TRX has not shown that there has been a "change of law occurring after the time of [the Court's summary judgment] order." Civ. L.R. 7-9(b)(2). Accordingly, TRX's motion for leave to move for reconsideration is DENIED.

IT IS SO ORDERED.