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

Plaintiff's motion to stay pending appeal of the PTO's final rejections of all claims of the patents in suit is denied.  The status of the present litigation and nature of the issues at bar disfavor a stay.  Fact and expert discovery in this case have been completed for two years.  Claim construction and summary judgment have been completed and the court's opinion has been vetted through the Federal Circuit.  With respect to prejudice, the timing of plaintiff’s requests for reexamination and this motion weigh against a stay.  Plaintiff filed the requests for reexamination about nine months after it filed suit. Moreover plaintiff moved to stay only after the Federal Circuit’s remand and more than a year after the final rejections.  In addition, the parties' are direct competitors which factor weighs in favor of a stay.  Conversely, the potential prejudice to defendant is mitigated by its own conduct in prosecuting the patents-in-suit on reexamination.  On balance, however, the factors weigh against a stay.  Therefore, plaintiff’s motion to stay litigation is denied.