Two Items of Interest

Scott Daniels | January 5, 2011

1.      Smucker Case at the Board

Subscribers may be interested in our report on the surprising outcome at the Board in the Smucker case, which was posted on IPWatchdog this Monday.

 2.      New Comments on Reexamination Stays

Judge Neil V. Wake made some interesting observations on the factors of “simplification of issues” and “prejudice to the patentee” in his recent decision to stay in Caron v. QuicKutz, Inc., 2010 U.S. Dist. LEXIS 137786

He had initially denied a motion by the accused infringer to stay the case pending completion of the reexamination of the patent-in-suit, in part, because the PTO proceeding had just begun.  Since then, however, the PTO has issued a non-final rejection of all the claims.  Judge Wake stated that “the Court presumes that an all-inclusive non-final rejection suggests that the PTO will finally reject at least some claims. Such [a] rejection would simplify the issues in this litigation.”

Regarding the “prejudice” factor, Judge Wake took a little poke at the PTO, commenting that “the PTO’s pledge to reexamine the Caron patent with ‘special dispatch’ is boilerplate drawn from a statutory requirement,” but he then found that “it appears that the PTO has moved more quickly than usual on this reexamination,” undermining “Plaintiffs’ previous estimates of the damage that may accrue during a stay period….”  The Judge also ordered the parties to report the actual progress of the reexamination.

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