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  • Writer's pictureShelly Albaum

DE Stay Motion Granted in Part

Judge Connolly in Delaware today entered an order granting in part and denying in part Elysium's motion to stay the patent infringement case. You can read the order here:

Elysium had requested that the patent infringement action be stayed pending the resolution of the California proceeding and pending the resolution of the PTAB proceeding (and appeal before the CFAC).

Judge Connolly rejected Elysium's claims based on the PTAB proceeding, and apparently rejected Elysium's claims that there was some kind of identity between the California and Delaware proceedings such that the first-filed rule would apply.

However, Judge Connolly apparently accepted Elysium's claims that the resolution of the Patent Misuse affirmative defense in California could simplify or obviate the need for the Delaware proceeding.

That's an incorrect ruling partly because Patent Misuse only speaks to the timing of a damages calculation, and not to any of the other infringement issues, but also because the Patent Misuse claim is "fictional" and bogus and refuted by evidence in the record.

Nonetheless, Elysium has bought itself a few more months for patent infringement damages to rack up before (I predict) they eventually get recognized and trebled.

I say that Judge Connolly "apparently" accepted Elysium's argument because the order states only "for the reasons stated by the Court during oral argument." Since we weren't there, we don't know the reasons.

Judge Connolly's 7-month delay before deciding the stay motion was unimpressive. His reasoning in deciding the stay motion is similarly unimpressive. The outcome is also unimpressive.

However, now that the stay is limited to a single claim in a single case, the days of delay are numbered. It may well be that the California matter is not resolved until trial, which means early November (for a trial starting October 29th). However, I wouldn't be surprised if the Patent Misuse claim were subject to a successful summary judgment motion before then, which could reactivate the Delaware proceeding even sooner. Time will tell.

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