Plaintiff, a San Diego-based research and development company, have been attempting to litigation patent infringement cases against a number of defendants for several years in USDC Southern California. Due to an ongoing ex parte reexamination on the subject patent in the USPTO (filed by long since settled out accused infringers), the cases have been stayed in some cases for over two years. In May 2010, the district court stayed them all for another year.
Plaintiff requested reconsideration based on new developments and material legal errors underlying the continued stay. Specifically, the moving papers stated the following grounds:
1. The PTO's withdrawal of all rejections on June 4, 2010, except three USC 103(a) rejections that were subject to attack on a discreet legal issue, renewing the issue of impermissible switching of burdens of proof relating to (1) issuance of stay; and (2) validity of the patent.
2. The Order is in direct contravention of the prohibition against immoderate and indefinite stays set forth by the United States Supreme Court in Landis v. No. American Co., 299 U.S. 248 (1936).
3. The Order violates Plaintiff's constitutional rights of access to judicial process.
4. The Order resulted from a legally erroneous conclusion that proceeding with a district court patent infringement case while reexamination was pending would result in an advisory opinion.
In the attached Order, the Court partially lifts stay in order to finalize the pleadings and permit limited discovery. The Court cites the "main purpose of this limited litigation is to preserve vital evidence and finalize the pleadings" and a list of 10 actions permitted is set forth.
In order to more fully understand the context of the Order, there were also pending before the Court multiple motions for exception to stay for purposes of evidence preservation that sought identification of witnesses, inventory of evidence being preserved, and amendments of pleadings.
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