English
Protective Orders: Patent Reexamination & Concurrent Litigation in Delaware
As noted by USPTO reexamination statistics, the majority of recent patent reexaminations are also involved in concurrent litigation. A recurring issue for litigants involved in such disputes is the fashioning of an appropriate protective order to adequately protect confidential materials. Such issues become particularly contentious in litigation between direct competitors.
Understandably, defendants typically seek protective orders providing maximum protection of confidential materials, forbidding litigation counsel from using these materials in the prosecution of plaintiff’s patent applications. This prohibition known as a “patent prosecution bar,” is largely standard practice. However, it is well established that patent reexamination does not involve “patent applications.” Thus, a thornier issue is presented when attempting to extend this bar to include barring participation by individuals with access to confidential information in ongoing reexamination proceedings.
Courts have taken divergent paths on the issue. Some courts Read the rest of this entry »
