“Piecemeal PTO Challenges” Justify Lifting Litigation Stay of NPE Litigation

The court granted plaintiff's motion to lift a stay pending ex parte reexamination because continuing the stay pending defendants' piecemeal PTO challenges would unduly prejudice plaintiff. "[T]he timing of the defendants' inter partes reexamination request . . . and the defendants' stated intent to later file a request for post-grant review . . . as a covered business method patent . . . indicate they have adopted a strategy of raising piecemeal PTO challenges to [plaintiff's] patents in order to prolong this litigation. . . . These delays appear to be "impermissibly tactical," suggesting that a continuation of the stay might result in undue prejudice. While the . . . 'relationship between the parties' sub-factor remains both unchanged and untroubling given [plaintiff's] status as a non-practicing entity, the defendants' timing and the status of the [inter partes] reexamination -- as well as the planned . . . CBM review -- suggest that the broader undue prejudice factor now favors lifting the stay. The defendants appear to have sought an inappropriate tactical advantage, and denial of this motion would expose [plaintiff's] suit to the various evidentiary risks associated with prolonged stays."

Fifth Market Inc. v. CME Group Inc., et. al., 1-08-cv-00520 (DED June 19, 2013, Order) (Sleet, J.).