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Archive for February 10th, 2010

Seeking a Stay of Patent Litigation: A Factors-Based Analysis

Posted On: Feb. 10, 2010   By: Scott A. McKeown

Guest Posting by Scott McBride of McAndrews Held & Malloy [1] 


Courts have the inherent power to manage their dockets, including the authority to stay patent infringement litigation pending the conclusion of a Patent Office reexamination.  Moreover, the decision to stay litigation is generally discretionary.  Decisions granting stays of patent litigation are typically reviewed under an abuse of discretion standard.  Such decisions can, in certain circumstances, be quite difficult to reverse on appeal.  Although a patent owner has a statutory right under 35 U.S.C. § 318 to seek a stay of patent litigation pending the outcome of an inter partes reexamination proceeding, such requests can be denied if the judge does not believe that a stay would serve the interests of justice. 

Factors generally considered by district court judges when ruling on motions to stay include whether (1) a stay will unduly prejudice, or present a clear tactical disadvantage to, the nonmoving party; (2) a stay will simplify the issues and trial of the case; and (3) discovery is complete and a trial date has been set.  In ITC proceedings, Administrative Law Judges also consider the stage of the reexamination proceedings, efficient use of the Commission’s resources, and alternative remedies available in federal court.


Delay arguably should not be a dispositive issue, Read the rest of this entry »