By Robert Arcamona and David Cavanaugh of WilmerHale
Robert Arcamona is an associate at WilmerHale and a graduate of The George Washington University Law School. Robert previously served as a law clerk to the Honorable Judge Evan J. Wallach on the United States Court of Appeals for the Federal Circuit.
David Cavanaugh is a partner at WilmerHale and is the chair of the firm’s Post-Grant Patent Proceedings Group. David has an extensive reexamination and reissue practice and is an adjunct member of the faculty of American University School of Law where he currently co-teaches a patent litigation class.
Congress created inter partes review (“IPR”) and covered business method patent review (“CBM”) knowing that the proceedings could be commenced amidst litigation. In such a scenario, Congress understood that a party might seek to stay litigation pending the review.1 For the most part, Congress left it to the courts to decide when a stay should issue.
What follows is an empirical analysis of how courts are deciding contested motions to stay litigation pending IPR and CBM review.2 Based on these decisions, it appears as though courts are split on whether three key issues weigh in favor of, or against, a stay to litigation.
As of January 31, 2014, cou...