Issue: Motion to Reconsider Motion for Stay Pending Reexamination
Judge: District Judge Robert S. Lasnik
Order: Denied
Date: July 12, 2010

Motiva’s motion for reconsideration of the Court’s June 11, 2010 order granting defendants’ motion to stay the litigation pending reexamination of the patent-in-suit was denied. Defendants requested the stay because the USPTO granted their request for inter partes reexamination of U.S. Patent No. 7,292,151. See Reexamination Control No. 95/000,540.

Plaintiff argued that the Court erred because it “did not consider the total time it takes for reexamination and exhaustion of all appeals: more than seven years.” Motion at p. 1. The Court countered this assertion explaining that: “The seven year delay plaintiff noted occurred in one cited case. It is speculative to conclude that this case will face a similar delay. Most importantly, plaintiff is incorrect in assuming that the Court failed to consider the potential delay. In fact, the Order explicitly noted that the intervening delay is ‘likely to be protracted.’ Order at p. 3. The Court is familiar with the appellate process and aware of how long appeals can take. Plaintiff’s contention that the Court was unaware of the delays inherent in that process is unsupported and unfounded.”

Second, plaintiff argued that the benefits of a stay would be lower than the Court apprehended because the USPTO had yet to issue an office action and: “Without an office action, the Court does not know if the PTO will reject or confirm the claims and has very little information on the likelihood that claims will survive.” Motion at p. 4. The Court rejected this rationale as similarly speculative, noting that equally speculative is whether the USPTO will reject or confirm claims. The Court reiterated that it should not expend significant resources litigating claims that may be eliminated or substantially altered.

Read or Download Order (PDF): Motion to Reconsider Motion for Stay Pending Reexamination; 2010-07-12; Denied; District Judge Robert S. Lasnik; Motiva LLC v. Nintendo Co Ltd et al (2-10-cv-00349) WAWD

Read the Court’s Order Granting the Stay: Motion for Stay Pending Reexamination; 2009-10-23; Granted; District Judge Marsha J. Pechman; National Products, Inc v. Gamber-Johnson LLC (2-09-cv-01212) WAWD

The Case is National Products, Inc. v. Gamber-Johnson, LLC., case number C09-1212 MJP, in the United States District Court of the Western District of Washington.