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"The Interplay between Reexaminations, Preliminary Injunctions and Stays of Litigation" - by Dennis Crouch at PATENTLYO.COM

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Reexamination Filing Data – December 31, 2012

End of July Developments

| August 2, 2010

1. Judge’s Decision to Stay May be Based on Strength of Reexamination Request

When trial judges are asked to stay a law suit pending completion of a reexamination proceeding at the PTO, they almost always apply the three-factor test: (1) whether a stay would unduly prejudice the non-moving party, (2) whether a stay would simplify the issues in the law suit, and (3) the stage of the law suit. We have long believed that judges should also consider the strength of the reexamination request – where the request is strong, a stay would greatly benefit the parties, but where the request is weak a stay is unfair to the patentee.

At least one judge may be moving in that direction. Judge Ronald Whyte of the Northern District of California was recently asked to stay Cellectricon AB v. Fluxion Biosciences, Inc., No. C-09-3150 RMW. He cited the three-factor test and carefully balanced the facts, staying the case for “at least 90 days to allow the Director of the PTO to determine ‘whether a substantial new question of patentability’ has been raised.” Judge Whyte then added that if a new question is found, “the court can evaluate the strength of that finding and make a decision on whether to stay the litigation further.”
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