Judge Bryon issued an interesting stay opinion last Friday.
The plaintiff had initially asserted six patents. Of those, four were dismissed under § 101, and the claims as to one of the remaining patents were severed and stayed pending IPR.
The case was set to go to trial on the last remaining patent on November 30, just over 11 weeks from the date of the order. But, last month, the PTO granted a request for ex parte reexamination of the sole asserted claim of that patent.
Shortly after that, Judge Bryson issued his opinion granting a motion to stay pending re-exam. A couple of interesting points:
- What a turnaround! Defendant first indicated it intended to request a stay on 8/31, in a short letter attaching the order granting re-examination. The Court issued its in-depth, 22-page opinion just two days after briefing was complete. Total turnaround from the initial letter brief to the order was just 9 days.
- The case was close to trial. The Court generally disfavors staying cases that are nearing trial, and the Judge Bryson relied partially on precedent from other districts in staying the case with just over 11 weeks left.
- COVID-19 was a factor. The Court called it "highly unlikely" that the schedule would hold absent the stay, in light of the Court's reopening status, and factored that in to the its holding.
- This involved a re-exam, not an IPR. Stay opinions these days more commonly involve IPRs, rather than ex-parte re-exams. Re-exams are typically longer, although the Court noted that the median length for a re-exam is currently just 20 months.
The opinion is also interesting because it digs in to the stay factors, and whether the Court can consider the "burden of litigation on the parties and the Court," a factor set forth for CBM review stays in the AIA. The whole thing is worth reading.
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