Thursday, February 3, 2011

Loss of Market Share to Infringing Competitor During Six Year Reexamination Warrants Denial of Stay

Defendants' motion to stay pending inter partes reexamination was denied where plaintiffs claimed irreparable harm if the case was delayed for six years or more. "[Plaintiff] asserts that the alleged infringement has cost it roughly a billion dollars in annual sales, and has forced it to lay off key employees and reduce its research and development programs. As such, [plaintiff] asserts that its very existence as a competitor in the drug-eluting stent field is threatened. The Court agrees that [plaintiffs] will be prejudiced by the imposition of a stay. [Plaintiff] alleges it has suffered significant decline in its market share, and if it is required to wait for the Patent Office to complete its reexamination it may be harmed further. Moreover, a significant delay in this litigation may result in evidence becoming more difficult to access as witnesses may become unavailable and memories fade. . . . [T]he possibility that some of the issues in this case may be resolved or narrowed weighs only slightly in favor of staying this action, and is not significant enough to outweigh the other considerations . . . "

Wyeth, et. al. v. Abbott Laboratories, et. al., 3-09-cv-04850 (NJD February 1, 2011, Order) (Pisano, J.)

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