NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-1221
GEORGE PIECZENIK,
Plaintiff-Appellant,
v.
DYAX CORPORATION,
Defendant-Appellee.
__________________________
DECIDED: December 16, 2004
__________________________
Before SCHALL, BRYSON, AND DYK, Circuit Judges.
PER CURIAM.
DECISION
George Pieczenik appeals the decision of the United States District Court for the
District of Massachusetts denying his motion for relief from judgment pursuant to Rule
60(b) of the Federal Rules of Civil Procedure based upon alleged newly-discovered
evidence. Pieczenik v. Dyax Corp., No. 00-CV-11370 (D. Mass. Oct. 23, 2003). We
affirm.
DISCUSSION
I.
In his Rule 60(b) motion, which was styled a “Motion for Reconsideration,” Dr.
Pieczenik asserted that certain material he obtained in litigation pending in the Southern
District of New York established the falsity of the February 6, 2003 affidavit of Robert C.
Ladner, the Senior Vice President and Chief Scientific Officer of Defendant-Appellee
Dyax Corporation (“Dyax”). Dyax submitted Dr. Ladner’s affidavit in support of its
opposition to Dr. Pieczenik’s motion for summary judgment and its cross-motion for
summary judgment of non-infringement. After considering the motions, the district court
granted summary judgment in favor of Dyax, ruling that Dyax did not infringe the three
patents asserted by Dr. Pieczenik against Dyax, U.S. Patent Nos. 4,359,535 (the “’535
patent”), 4,528,266 (the “’266 patent”), and 5,866,363 (the “’363 patent”). Pieczenik v.
Dyax Corp., 226 F. Supp. 2d 314 (D. Mass. 2003). In a non-precedential decision dated
September 23, 2003, we affirmed the district court’s decision. Pieczenik v, Dyax Corp.,
76 Fed. Appx. 293 (Fed. Cir. 2003).
II.
Rule 60(b) provides, in relevant part, 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” under specified circumstances, including: “(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).” In an appeal involving a Rule 60(b) motion
based upon alleged newly-discovered evidence we generally apply the law of the
appropriate regional circuit: in this case, the First Circuit. Lans v. Digital Equip. Corp.,
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252 F.3d 1320, 1326, 1329 (Fed. Cir. 2001). In the First Circuit, to succeed on a Rule
60(b) motion on the grounds of newly-discovered evidence, the moving party must show
that its motion is timely, that “exceptional circumstances” exist to warrant the relief
sought, that the opposing party will not experience unfair prejudice if the motion is
granted, and that vacating the final judgment “will not be an empty exercise.”
Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline
Transp. Co., 953 F.2d 17, 20 & n.3 (1st Cir. 1992).
The alleged newly-discovered evidence upon which Dr. Pieczenik relied was a
sales record from New England Biolabs (“NEB”). The sales record showed that Dyax
purchased three different commercially-available phage display libraries from NEB. In
his Rule 60(b) motion, Dr. Pieczenik argued as follows:
On February 6, 2003, Robert Ladner filed an affidavit (Appendix C-
Paragraph 8) with this Court swearing under penalty of perjury that the
NEB libraries were “made, used or sold before February 2, 1999” implying
that they were not used but after February 9, 1999 when the Pieczenik
’363 patent issued. The combinatorial libraries he lists in his 2nd affidavit
include libraries up to the number 81. The NEB libraries are libraries 79,
80, and 81 in his Exhibit A and all but one were sold to Dyax after the
Pieczenik ’363 patent issued not before as his affidavit swears. One may
argue that this perjury is de minimus as there is a license between Plaintiff
and NEB. However, NEB’s has [sic] a license for sales for research
purposes only in limited areas with Plaintiff which commenced on April 3,
2000. (Appendix E) The requirement to license the ’363 patent upon
purchase of the NEB libraries is indicated in Appendix D in the NEB sales
literature and bolded for identification.
However, the NEB sales record invoice number 455757 (1st item
listed) of the Ph. 7 phage combinatorial library which was sold to Dyax
(8/9/1999) after the Pieczenik patent issued (2/2/1999) and before the
license between NEB and Pieczenik was signed on 4/3/2000 (Appendix
C and E).
(emphasis in original).
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We see no error in the decision of the district court denying Dr. Pieczenik’s Rule
60(b) motion. First, we have difficulty seeing how the NEB sales record qualifies as
newly-discovered evidence for purposes of Rule 60(b). Dr. Ladner identified the NEB
libraries in his February 6, 2003 affidavit. Yet, Dr. Pieczenik never sought additional
discovery in response to Dr. Ladner’s motion. Significantly, he did seek and obtain
discovery from NEB in the Southern District of New York litigation pursuant to a
subpoena. There is no reason to think that he was barred from pursuing a similar
course in this case. Second, Dr. Pieczenik does not proffer how the alleged newly-
discovered evidence could disturb the district court’s rulings on issues such as claim
construction. This court cannot accept a proffer of alleged newly-discovered evidence
as an invitation to reargue all of the issues previously decided by the district court and
affirmed by this court, issues on which the alleged new evidence would have no
bearing.
We have considered Dr. Pieczenik’s other arguments but have found them to be
without merit.
For the foregoing reasons, the decision of the district court is affirmed.1
1
In denying Dr. Pieczenik’s Rule 60(b) motion, the district court stated, “Dyax
Corp. is excused from responding to any further filings by Dr. Pieczenik unless directed
to do so by the court.” Pointing to material in the record before us and to certain
statements in Dr. Pieczenik’s main brief, Dyax asks us to issue a similar order for this
court. We decline to do so. The filings that may be made in this court are governed by
the Federal Rules of Appellate Procedure and the Rules of the Federal Circuit. Filings
not contemplated by the applicable rules are subject to rejection. See Lemelson v.
United States, 752 F.2d 1538, 1553 (Fed. Cir. 1985) (refusing to entertain arguments
not in compliance with Federal Rules of Appellate Procedure); see also In re Violation of
Rule 28(c), 388 F.3d 1383, __ (Fed. Cir. 2004) (“This court has authority to impose
sanctions for violations of the Federal Rules of Appellate Procedure or of its own
rules.”).
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