Wednesday, October 12, 2011

Stay Pending Reexam Denied Where Parties Were Direct Competitors in Developing Market

The court denied defendants' motion to stay pending inter partes reexamination because the parties were direct competitors in a developing market and a stay would result in significant prejudice to plaintiff. "[E]ven a conservative estimate of a delay of several years is 'long enough to work considerable prejudice upon the non-moving party.' By contrast, if this case is tried in this Court . . . as scheduled, the entire dispute may be resolved within two years, probably before the reexamination process is concluded at the PTO. Compounding the prejudice that a stay would work on [plaintiff] is the fact that the parties are direct competitors in a relatively narrow sector of the ADA-compliance industry [sidewalk tactile warning systems designed to warn disabled pedestrians of dangers]. Although money damages could remedy some of [plaintiff's] infringement losses during the stay period, the risk of loss of market share is particularly high in this growing market where contractors and government agencies develop lists of preferred vendors to be used for projects."

ADA Solutions, Inc. v. Engineered Plastics Inc. d/b/a Armor-Tile, et. al., 1-10-cv-11512 (MAD October 7, 2011, Order) (Gorton, J.)

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