Facebook Motion to Stay Indacon Case Denied

Scott Daniels | November 1, 2011

Last month Facebook persuaded its judge in Pragmatus AV. v. Facebook (2011 U.S. Dist. LEXIS 117147) to issue a reexamination stay despite the fact that Facebook’s request for reexamination had not yet been granted.  Facebook has now attempted to replicate that feat in Indacon v. Facebook, but Judge John Primono of the Western District of Texas was not buying.

Where judges grant reexamination stay motions, it is generally because of the prospect of simplifying the issues for trial; and where judges deny stay motions, it is generally because of undue prejudice to the patentee.  In the Indacon case, simplification from reexamination seemed unlikely to Judge Primono because “Facebook has requested review of only one of the two patents and of five of the ten claims alleged to have been infringed upon.”  For the Judge, this likely failure of the reexamination to simplify the issues meant prejudice to the patentee: “Delaying the entire case for up to two years based on only one of the two patents alleged to have been infringed upon would appear to present a clear tactical disadvantage to Indacon.” 

Judge Primono therefore denied Facebook’s motion without even touching on the point that the reexamination request had not been granted.

Reexamination stays are not automatic.  At a minimum, an accused infringer seeking a stay must seek reexamination of a sufficient number of patent claims, so that simplification of issues is at least a realistic possibility. 

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