I had found a story a while back about reexamination as a litigation strategy. The strategy employed by infringers is to act as if they did not know they were infringing until the reexamination was completed there by avoiding treble damages.

Would the Texas case be stayed for the 336? I think not but there could be many more cases.

Such a delay may stay a pending litigation. However, a re-examination proceeding does not automatically stay any pending district court litigation involving the same claims. On the contrary, the district court has discretion in deciding whether to stay the litigation to await the outcome of the re-examination (see, eg, Xerox Corp v 3COM Corp, 69 F Supp 2d 404, 406 (WDNY 1999), appeal dismissed, 243 F 3d 554 (Fed Cir 2000)).

Courts have considered the following factors in deciding whether to grant a stay (Xerox Corp, 69 F Supp 2d at 407-408):

• whether a stay would unduly prejudice or present a clear tactical disadvantage to the party not requesting the stay.

• whether a stay will simplify the issues in question in the litigation and at trial; and

• whether discovery is complete and a trial date has been set.

Thus, the closer to the trial that the re-examination request is filed, the less likely that a stay will be granted. If a trial date has been set, the requesting party must generally show a “clear case of hardship or inequity” (id).

It takes about two months just to find out if there are grounds for a reexamination to take place.

Who says that infringers won’t send in their cronies every six weeks to make a new request until the patents expire?