Comments on: Courts Reluctant to Stay Patent Litigation Pending Reexam

By: The Mad Hatter

The Mad Hatter — Fri, 28 May 2010 11:39:15 +0000

The limited material that you can use in a Patent re-exam is also an issue. In IP Innovation v. Red Hat and Novell, the defendants did a demonstration on an older model computer (1986 Amiga) in court, and this helped get the IP Innovations patent invalidated. According to my understanding the US PTO won't accept working product as evidence in a re-exam. Novell Press Release Media Interview of Red Hat exec Wayne

By: Paul F. Morgan

Paul F. Morgan — Tue, 12 Jan 2010 16:19:07 +0000

As I have been saying for many years [and recently for an FTC study and the new PTO Director] here is further independent confirmation that the desirable increasing attempts to reduce patent litigation and its large economic burdens with reexaminations [especially inter partes reexaminations, which have a stay statute] is being frustrated by denials of litigation stays due almost entirely to continuing gross PTO delays of all reexaminations in gross violations of their statutory “special dispatch” requirement. This could be easily corrected simply by reassigning a small number of competent examiners from normal [statistically vastly far less important] activities to reexaminations.

By: Most Tweeted Articles by Intellectual Property Experts

Most Tweeted Articles by Intellectual Property Experts — Tue, 12 Jan 2010 10:44:33 +0000

[...] from independent inventors and very small companies (or their non-pa… 2 Likes Courts Reluctant to Stay Patent Litigation Pending Reexam | IPWatchdog.com | Patents & Patent L… Increasingly it is becoming more difficult to persuade a district court to issue a stay of a [...]

By: pop

pop — Tue, 12 Jan 2010 01:51:27 +0000

Considering that half of new businesses fail in the time it takes for them to process a re-exam I would say it is unreasonable as well.

I’ve been waiting two and a half months on a ninety day check that should be coming that feels like it was forever ago.

I could be wrong but it seems to me that a stay could actually wind up costing the company all the money they may have to pay you.

By: Gene Quinn

Gene Quinn — Tue, 12 Jan 2010 01:07:24 +0000

Fan-

Thanks for the comment. If you can put your fingers on the Sedona paper you reference I would love to see it. You can send me a message via contact form at: http://www.ipwatchdog.com/about/gene/#F

Thanks for reading.

-Gene

By: Fan

Fan — Tue, 12 Jan 2010 00:22:19 +0000

Gene,

Timely article. The problem with the CRU (Central Reexamination Unit) is the same one that afflicts the PTO’s patent prosecution units – namely, longer and longer pendency and backlog. There was a paper put out by the Sedona Conference (last year, I believe) that estimated that it takes 2-4 years to get a reexam through the CRU and then another 2-4 years through the Board of Patent Appeals (and another year or so for the case to be heard by the Federal Circuit).

These are completely unacceptable timelines. Particularly, since a defendant may request a reexam in a first case and then even if that case doesn’t get stayed, there is a much higher likelihood that any subsequent cases filed by the patent holder will get stayed because of the pending reexam (and the fact that the subsequent case hasn’t gotten very far along).

One other comment: My experience with the CRU is that they suffer from the same “Reject, reject, reject” mentality that afflicts the PTO, in general. Sad state of affairs.

FAN