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Davol, Inc. v. Atrium Medical Corporation

United States District Court, Third Circuit

June 17, 2013

DAVOL, INC., Plaintiff,
v.
ATRIUM MEDICAL CORPORATION, Defendant.

MEMORANDUM

GREGORY M. SLEET, Chief District Judge.

I. INTRODUCTION

The plaintiff Davol, Inc. ("Davol") filed this patent infringement suit against Atrium Medical Corporation ("Atrium") on July 20, 2012, alleging infringement of U.S. Patent Nos. 7, 785, 334 (the "'334 Patent"), 7, 806, 905 (the "'905 Patent"), and 7, 824, 420 (the "'420 Patent"). (D.I. 1.) Before formal service of the Complaint, the parties attempted to reach a settlement, and, on three occasions, the court approved stipulations to extend the time for service beyond the 120-day period set forth in Rule 4(m) of the Federal Rules of Civil Procedure. (D.I. 5; D.1. 6; D.1.7.) Davol ultimately served its Complaint on February 19, 2013. (D.I. 8.)

On March 13 and March 14, 2013, Atrium filed six petitions for inter partes review of the '334 and '905 Patents with the Patent and Trademark Office (the "PTO"). (D.I. 16 at 2.) On March 18, 2013, Atrium filed the present Motion to Stay Litigation Pending Inter Partes Review of the '334 and '905 Patents. (D.I. 15.) The PTO has not yet granted the petitions for review. (D.I. 16 at 3.) For the reasons that follow, the court will deny Atrium's Motion to Stay.

II. BACKGROUND

The '334 and '905 Patents were issued to C.R. Bard, Inc. ("Bard")-the parent company of Davol-on August 31, 2010 and October 5, 2010, respectively and were assigned to Davol on July 12, 2012. (D.I. 18 at 3.) The '334 and '905 Patents relate to implamnatable hernia patches and the treatment of tissue or muscle defects using such patches. ( Id. ) Davol alleges that Atrium sells a competing hernia repair product that infringes these patents.[1] (D.I. 1 at ΒΆ 4; D.I. 18 at 4-5.)

III. STANDARD OF REVIEW

The decision of whether to grant a stay rests within the sound discretion of the court as a product of its inherent power to manage its own docket so as to conserve judicial resources. See Cost Bros. Inc. v. Travelers Indemnity Co., 760 F.2d 58, 60 (3d Cir. 1985); First Am. Title Ins. Co. v. MacLaren L.L.C., No. 10-363-GMS, 2012 WL 769601, at *6 (D. Del. Mar. 9, 2012). It is well settled that this authority extends to patent cases in which a review or reexamination by the PTO has been requested. Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1426-27 (Fed. Cir. 1988); ImageVision.Net, Inc. v. Internet Payment Exch., Inc., No. 12-054-GMS-MPT, 2013 WL 663535 at *1 (D. Del. Feb, 2013), recommendation adopted, 2013 WL 1743854; Abbott Diabetes Care, Inc. v. Dexcom, Inc., No. 06-513-GMS, 2007 WL 2892707, at *4 (D. Del. Sept, 2007). The court looks to the following factors in assessing the propriety of a stay: "(1) whether a stay would unduly prejudice or present a clear tactical disadvantage to the non-moving party; (2) whether a stay will simplify the issues in question and trial of the case; and (3) whether discovery is complete and whether a trial date has been set." First Am. Title Ins. Co., 2012 WL 769601, at *4.

IV. DISCUSSION

The court finds that, taken together, the three stay factors noted above weigh against Atrium's Motion to Stay. The court will discuss each factor in tum.

A. Undue Prejudice

The first issue the court must address is whether a stay would place the non-moving party at a clear tactical disadvantage or cause it to suffer undue prejudice. See First Am. Title Ins. Co., 2012 WL 769601, at *4. Of course, staying any case pending PTO review risks delaying the final resolution of the dispute and may result in some degree of prejudice to the plaintiff. See Neste Oil Oyj v. Dynamic Fuels, LLC, No. 12-662-GMS, 2013 WL 424754, at *2 (D. Del. Jan. 31, 2013); Textron Innovations, Inc. v. Taro Co., No. 05-486-GMS, 2007 WL 7772169, at *2 (D. Del. Apr. 25, 2007). Such an inherent risk of delay, however, is not dispositive with regard to this factor. See Neste Oil Oyj, 2013 WL 424754, at *2 ("The court also recognizes... that the potential for delay does not, by itself, establish undue prejudice."). Rather, the court looks to the following four sub-factors to determine whether the non-moving party would be unacceptably prejudiced if a stay is granted: (1) the timing of the review request; (2) the timing of the request for stay; (3) the status of the review proceedings; and (4) the relationship of the parties. ImageVision.Net, Inc., 2013 WL 663535, at *5; Boston Scientific Corp. v. Cordis Corp., 777 F.Supp.2d 783, 789 (D. Del. 2011); Ever Win Int'l Corp. v. Radioshack Corp., No. 11-1104-GMS-CJB, 2012 WL 4801890, at *5 (D. Del. Oct 9, 2012).

1. Timing of the review and stay requests

Here, Davol filed its Complaint on July 20, 2012 but did not formally serve it on Atrium until February 19, 2013. Atrium filed its requests for inter partes review of the '334 and '905 Patents on March 13 and 14, 2013, less than one month after Davol served its Complaint and just one day after filing its Answer and Counterclaims. ...


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