Damages Alone May Not Compensate Non-Practicing Entity For Harm From Stay Pending Reexam

In denying defendants' motion for a stay pending reexamination, the court rejected the argument that plaintiff would not be prejudiced because it was a non-practicing entity. "[Plaintiff] may still be entitled to a permanent injunction, even though it does not practice its patent. While [plaintiff] will be able to collect damages for infringement occurring during the stay, [plaintiff] may still suffer from irreparable harm during that time. Should [defendant] be found to infringe the asserted patent in this litigation, damages alone may not fully compensate [plaintiff] for a lengthy delay resulting from reexamination. The right to exclude even for a non-practicing entity, may be the only way to fully vindicate the patentee’s ownership in the patent."

BarTex Research LLC v. FedEx Corp., 6-07-cv-00385 (TXED April 20, 2009, Memorandum Opinion & Order)