Motion to Stay Granted

Judge Gilstrap granted the defendant’s renewed motion to stay pending IPR under “[t]he specific facts of this unique case”, noting that review had been instituted on all of the claims of all of the asserted patents on multiple grounds, the Markman hearing had not yet been held, and while the defendant “could have acted sooner” it wasn’t enough to change the outcome. The court also noted that it didn’t matter that the PTAB had not expressly characterized the merits of the grounds for institution.

Motion to Lift Stay Denied (No, A Different One)

Judge Pitman declined to lift the stay following the conclusion of an ex parte reexam that found twelve claims patentable because a third party had now filed an IPR as to the same patent. Plaintiff noted that six of the claims were not in the IPR, and the PTAB had declined to institute an IPR four previous times, but the court found persuasive it had this, the fifth, time.

Motion to Lift Stay Denied

Completing our Judge Pitman trifecta this morning is this order denying an opposed motion to lift the stay of this case against Google. The case had been stayed when Google appealed the 40 claims across two patents. The PTAB invalidated 38 of the claims and the plaintiff sought to proceed with the two remaining, choosing not to appeal the determinations as to the other claims. Google did choose to appeal the two it didn’t win on, so the court maintained the stay until the appeal of the rulings as to those two patents is resolved by the Federal Circuit. “Even if the Federal Circuit is statistically more likely to affirm the PTAB’s decision,” Judge Pitman wrote, “[t]his outcome is far from a foregone conclusion.”

Another Omnibus Pretrial Order

Last week’s Sable v. Cloudflare omnibus order with pretrial rulings was so popular, let’s try another one. This week’s is in Flypsi v. Google, and includes the plaintiff going 0-5 on its SJ and expert motions, and Google topping it, going 0-8 on theirs, with one small asterisk (don’t go into Google’s total advertising revenue).

Here We Go – Request for Mandamus Staying Trial Denied

Well, you won’t be hearing that at AT&T Stadium anytime soon, but you will in Marshall as the Federal Circuit denied Micron’s request to stay the trial of Netlist’s claims against it, set to start later this month, based on proceedings at the PTAB. It wasn’t happy that the district court had not ruled on the stay motion, it was also not best pleased that Micron waited until three weeks before trial to seek review.