wake_up_call_jpg2Back on September 25, 2005, Judge Farnan of the United States District Court for the District of Delaware stayed the litigation between Hasbasit Belting, Inc. v. Rexnord Industries, Inc. (Civil Action 03-185) relating to U.S. Patent 6,523,680. The stay was entered in favor of inter partes reexamination 95/000,072.

Yesterday, the rejection of issued claims 1-14 was reversed at the BPAI (decision here). The refusal to adopt a rejection of claim 6 and 13 was also affirmed. Thus, the Third Party, Rexnord Industries, may find itself on the wrong side of the estoppel equation of 35 USC 315 (c) very shortly.

More importantly, will the court recognize the significant delay to date, and the appeal reversal as justification enough to lift the stay?

To be sure, estoppel does not attach until a “final” determination (i.e., CAFC). Still, with the CAFC reviewing the BPAI fact finding on the Zurko standard (substantial evidence), and claim interpretation only for lack of reasonableness, perhaps the writing is already on the wall for Judge Farnan. Unfortunately, these cases have a way of settling before anything interesting happens…stay tuned.