No Stay Pending Interlocutory Appeal of Denied Stay Pending CBM Review

The court denied defendants' motion to stay pending an interlocutory appeal of the court's earlier decision to deny a motion to stay pending CBM review. "Defendants have failed to cite, and this Court is unaware of, any authority holding that attending a Markman hearing in the middle of a co-pending reexamination proceeding constitutes 'irreparable injury.'. . . To the extent any further statements of Plaintiff’s [during CBM review] or amendments to claims may affect the Court’s claim construction, such is fully remediable with supplemental claim constructions. . . . This Court is mindful that the Federal Circuit, in reviewing whether or not this case should be stayed, is tasked with ensuring that AIA § 18(b) is 'consistently applied across cases and across the various district courts.'. . . However, the Federal Circuit’s decision-making does not depend on whether the proceedings below are stayed pending appeal. Defendants have failed to demonstrate how this Court’s denial of a stay pending interlocutory appeal would impede, in any way, the Federal Circuit’s interest in the consistent application of AIA § 18(b) across the nation’s district courts."

VirtualAgility, Inc. v. Salesforce.com, Inc. et al, 2-13-cv-00011 (TXED February 27, 2014, Order) (Gilstrap, J.)