Tuesday, January 14, 2014

Lengthy Prosecution History of Patent-in-Suit Weighs Against Stay Pending CBM Review

The court denied defendants' motion to stay pending CBM review because the potential simplification of issues and undue prejudice to plaintiff weighed against a stay. "[T]he [patent-in-suit] has gone through a lengthy prosecution process, indeed one spanning over twelve years, during which time the PTO considered more than sixty patent and non-patent prior art references before eventually granting the patent. . . . Given the thoroughness of the PTO’s prior examination of the [patent], during which time more than sixty prior art references were considered, the Court is not persuaded that the [one prior art patent not previously presented to the PTO], by itself, would invalidate all or a substantial number of asserted claims of the [patent]. . . . [The parties] directly compete in at least the enterprise cloud computing market targeting public sector entities, and that such relationship is demonstrated by more than mere conclusory statements. . . . The loss of market share and consumer goodwill is particularly high in the growing market of enterprise cloud-computing, where contractors and governmental agencies are developing lists of preferred vendors."

VirtualAgility, Inc. v. Salesforce.com, Inc. et. al., 2-13-cv-00011 (TXED January 9, 2014, Order) (Gilstrap, J.)

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