Scott Daniels | June 30, 2010
Earlier this month, Fluxion Biosciences filed reexamination requests against four Cellectricon patents related to microfluidic structures involving cell-based biosensors. See “Recent Requests” below. The next day, Fluxion moved to stay a law suit that Cellectricon had filed last summer, accusing Fluxion of infringing those four patents. Cellectricon AB v. Fluxion Biosciences, Inc., 5:09-CV-03510-RMW (N.D. Cal.).
In its motion to stay, Fluxion asserts that each of the three familiar factors – possible prejudice to the patentee, simplification of issues, and the stage of the litigation – favors a stay. What makes Fluxion’s motion special, however, is that it also explains why the four requests are meritorious. Fluxion does not go into great length, but in two pages gives a technical explanation of why the first of the Cellectricon patents (U.S. Patent No. 5,376,252) is anticipated by a specific prior art reference. It then asserts that the “art cited [in the requests] against the remaining patents-in-suit is no less compelling.”
We have long believed that the three-factor test is an inadequate basis for determining whether a stay pending reexamination is appropriate. More important than those factors is the strength of the prior art relied upon in the requests – if the art is strong, reexamination will help the parties and the court, but if the art is weak, the only result is unnecessary delay.
Some have ridiculed our suggestion, asserting that trial judges will not take the time to consider the technical merits of the reexamination requests. We disagree.