Delaware Patent Litigation Report : Delaware Intellectual Property Lawyer & Attorney : Morris James Law Firm : Delaware Patent Litigation Report

The court’s claim construction of “different data format” terms is the same as this court adopted in related litigation but differs from the construction the PTO endorsed during reexamination.  Defendants moved to stay citing efficiency because the Federal Circuit’s decision in the related litigation will control the dispositive issue of claim construction here.  They further contend they will be prejudiced if required to prove invalidity by clear and convincing evidence where the court’s construction differs markedly from the PTO’s.  Plaintiff argues this court’s construction controls over a conflicting PTO construction.  If the matter is stayed, it will be prejudiced if it loses its trial date.  The court declines to stay, noting that the time and outcome of the appeal are speculative. Defendants move to certify the claim construction over Plaintiff’s objection.  Plaintiff argues interlocutory review is not available absent exceptional circumstances which are not present here.  The court finds that an interlocutory appeal is appropriate in the unusual circumstances presented here, and that the litigation should continue unless and until the Federal Circuit accepts his appeal.