We haven't written about pre-institution IPR stays in some time. Defendants generally know that they are tough to achieve. You can try it but, unless there is something special about your case, pre-institution stays are rare. Most of our judges view the chances of institution as too remote to support a stay, and want to evaluate the situation after institution.
Judge Andrews issued a short oral order last week consistent with that view, denying a pre-institution in a way that suggests, unsurprisingly, that getting a pre-instutition stay remains difficult:
I read the briefs in connection with the motion to stay. Each side's positions are clear. Oral argument would not change the outcome. Therefore, the oral argument is CANCELLED. The motion to stay . . . is DENIED without prejudice to renewal after an institution decision, expected in October 2025. Renewal may be made by a one-page letter. The main basis for denial is that institution and subsequent invalidation is too speculative. At this point, the parties should proceed on the assumption that institution will be denied and the present schedule will be kept.
Earin AB v. Skullcandy Inc., C.A. No. 24-275, D.I. 46 (D. Del. May 2, 2025).
Nothing in the order hinged on the facts of this IPR petition specifically, so I imagine the result will be the same for most other cases, unless there is something special that supports a pre-institution stay.
The Court provided an easy way to renew the motion, via a one-page letter, should the PTO institute the IPRs. Of course, if the defendant is limited to a single page, it's going to be tough to dive into the substance of the institution decision.
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