Failure to Assert Invalidity Defense Undermines Request for Stay Pending Reexam

The court denied defendants' motion to stay pending reexamination in part, because defendants failed to raise invalidity as a defense and therefore a reexamination would not simplify any issue in the pending litigation. "[T]he Court finds that the case would not be streamlined by a PTO reexamination because defendants never alleged invalidity as a defense in their Answer nor did they disclose . . . any prior art by [the deadline stated in] the Pretrial Scheduling Order. In other words, there is nothing to streamline where invalidity is not an issue in this case."

J. Blazed SKLO Podebrady S.I.O. et al v. Burton International Enterprises et al., 0-08-cv-02354 (DMN June 11, 2010, Order) (Mayeron, M.J.)