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

In an earlier decision on May 22, 2009, the Court stayed this action pending further developments in the federal litigation given that the parties have used this license dispute principally as a device to gain strategic advantages in related MDL patent litigation.  At that time, the Court invited the parties to file a motion for relief from order pursuant to Delaware Superior Court Civil Rule 60(b) with respect to the Court’s decision on the cross motions for summary judgment.  Plaintiff accepted the Court’s invitation and filed the instant motion for relief from judgment which is granted.

The Superior Court states that it has nearly lost “interest” (in the adjudicatory sense) in this action and therefore stays the state court action pending further developments in the federal litigation given that the parties have used this license dispute principally as a device to gain strategic advantages in related MDL patent litigation.  During the pendency of this action at least fifteen separate actions involving nine patents were pending (at one time or another) in three federal districts.  Positions in this action have varied based on the changing tides of the federal litigation, most notably Markman rulings.  In staying this proceeding the Court states that it will “no longer countenance posturing here for advantage elsewhere.”  It notes the possibility that a stipulated judgment of non-infringement in the MDL, when final, could render the Superior Court proceedings moot or significantly limit the scope of the controversy.