Monday, June 14, 2010

S.D. Fla. On Motions to Stay Pending Reexamination

Fusilamp LLC v. Littlefuse, Inc., Case No. 10-20528-CIV (June 7, 2010, order)

In denying a request to stay litigation in light of a pending ex parte reexamination proceeding, Judge Altonaga stated:

District courts have an inherent power to manage their dockets and are in no way required to stay an ongoing litigation pending a patent reexamination. . . . To grant Littelfuse’s request would be to stay the entire litigation until the USPTO completes its review. The requested stay would only expire once the USPTO completes its reexamination and the appellate process has been exhausted as well. See Ortega Trujillo, 221 F.3d at 1264 (concluding that a stay was indefinite because it would be in place until the conclusion of the trial and the appellate process of another tribunal). Additionally, the Court cannot be assured that the reexamination process will proceed quickly; as Fusilamp, USA points out, the reexamination process takes on average 25.4 months to complete, and another 24 months on average for appeals. See CTI-Container Leasing Corp., 685 F.2d at 1288 (determining a stay to be indefinite when accurate predication of the length of the stay would be difficult); Hines, 531 F.2d at 732 (describing a stay issued by a district court as “indefinite in duration” when the likelihood was that the stay would remain in effect for anywhere between 18 months and 5 years). In sum, the length of the stay, if issued in this case, appears to be indefinite, and as such, is immoderate and unlawful.

Read/download the order here (link)


On a somewhat related note, Director Kappos noted in a recent blog entry that "many requests for reexamination are currently identified as defective where they do not clearly identify the issues to be resolved between the requester and the patent owner.  This in turn delays resolution of the request for reexamination."

Accordingly, the USPTO has released "Best Practices and FAQs for filing requests for reexamination compliant with 37 CFR 1.510 and 1.915."  You can download a copy of the 18-page document here (link)

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