Friday, May 1, 2009

Ex Parte Reexam Not Likely to Simplify Issues for Trial

Defendants' motion to stay pending reexamination was denied. "The Court is not fully convinced that reexamination will simplify the issues for trial in this case. Based on the PTO’s most recent report, ex parte reexaminations result in all claims being cancelled only 11% of the time, and they result in some claims being changed 64% of the time. While either of these outcomes could simplify some issues in this case, it is difficult to gauge, at this early stage in the reexamination process, how likely it is that any of the patent claims at issue will ultimately be cancelled or modified through amendment. . . . One final reason why reexamination is unlikely to simplify the issues in this case is that the Defendants may still challenge the validity of the patents at issue because ex parte reexamination proceedings have no estoppel effect."

Magistrate John D. Love
EON Corp. IP Holdings, LLC v. Skytel Corp., 6-08-cv-00385
(TXED April 29, 2009, Memorandum Opinion & Order)

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