Stays pending reexamination of a patent have always been an important consideration in the patent litigation process. In recent years, the America Invents Act created new proceedings, including inter partes review (IPR), covered business method review (CBM) and post-grant review (PGR) for challenging patents within the Patent and Trademark Office (PTO). Decided by the newly-constituted Patent Trial and Appeal Board (PTAB), the speed of these new proceedings, the initial success rates of challenges, and new estoppel rules all changed the calculus that district courts apply in deciding whether to stay litigation pending completion of a PTO proceeding. As a result, requests for litigation stays have become more common, and the number of stays granted by district courts has increased.Judges exercise broad discretion, not only in deciding whether to grant or deny a stay, but also in determining the nature of a stay, such as whether the stay will apply to the entire case or…
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