Monday, March 3, 2014

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

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