In considering whether or not to stay a parallel litigation in view of a pending patent reexamination the court will consider several factors. One of the more hotly contested factors is whether the stay will unduly prejudice, or present a clear tactical disadvantage to, the non-moving party.
While delay is common to all stayed cases, the degree of delay caused by patent reexamination can be considered prejudicial. For example, it has been argued, successfully at times, that a delay that is not merely lengthy, but potentially indefinite is prejudicial to the non-moving party. For this reason, especially when it comes to inter partes patent reexamination, the average length of the proceeding can be instructive to the Court.
Hoping to convince the Court of a prejudicial delay, Patentees will argue that inter partes patent reexamination takes on the order of 5-7 years to complete through appeal. Defendants, on the other hand, will cite to published USPTO statistics that indicate inter partes patent reexamination pendency to be an average of 36 months, including appeal.
So, which party is manipulating the truth? Read the rest of this entry »