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McRo, Inc. v. Bethesda Softworks LLC

United States District Court, D. Delaware

May 1, 2014

McRO, INC., d/b/a PLANET BLUE, Plaintiff,
v.
BETHESDA SOFTWORKS LLC, Defendant. McRO, INC., d/b/a PLANET BLUE, Plaintiff,
v.
HARMONIX MUSIC SYSTEMS, INC., Defendant. McRO, INC., d/b/a PLANET BLUE, Plaintiff,
v.
ROCKSTAR GAMES INC., Defendant. McRO, INC., d/b/a PLANET BLUE, Plaintiff,
v.
TAKE-TWO INTERACTIVE SOFTWARE INC., Defendant. McRO, INC., d/b/a PLANET BLUE, Plaintiff,
v.
2K GAMES INC., Defendant.

MEMORANDUM ORDER

CHRISTOPHER J. BURKE, Magistrate Judge.

Presently before the Court in these patent infringement actions is a motion to stay jointly filed by Defendants Bethesda Softworks LLC, ("Bethesda"), Harmonix Music Systems, Inc., ("Harmonix"), Rockstar Games Inc., ("Rockstar"), Take-Two Interactive Software Inc., ("Take-Two") and 2K Games Inc. ("2K") (collectively, "Defendants"). (Civil Action No. 12-1509-LPS-CJB ("Bethesda Action"), D.I. 23; Civil Action No. 12-1510-LPS-CJB ("Harmonix Action"), D.I. 15; Civil Action No. 12-1513-LPS-CJB ("Rockstar Action"), D.I. 27; Civil Action No. 12-1517-LPS-CJB ("Take-Two Action"), D.I. 26; Civil Action No. 12-1519-LPS-CJB ("2K Action"), D.I. 25)[1] For the reasons stated below, the Court DENIES Defendants' motion, without prejudice to Defendants' ability to renew the motion hereafter.

I. BACKGROUND[2]

A. Procedural History

The instant five actions are among thirteen originally filed in this District by Plaintiff McRo, Inc. d/b/a Planet Blue ("Plaintiff' or "McRo"), alleging infringement of U.S. Patent Nos. 6, 307, 576 ("the '576 Patent") and 6, 611, 278 ("the '278 Patent"). Defendants in the other eight actions filed motions seeking transfer or otherwise sought transfer to the United States District Court for the Central District of California ("Central District"); ultimately, the District Court transferred all eight cases to the Central District. The eight transferred actions were consolidated with related cases Plaintiff currently has pending in the Central District (collectively, "the Central District Actions") that allege infringement of the same patents-in-suit; in total, there are now over 20 Central District Actions. (D.I. 31, ex. A; D.I. 16 at 2)

In the instant five remaining cases, two Defendants (Harmonix and Bethesda) responded to the pending Complaints by filing Answers, (D.I. 8; Bethesda Action, D.I. 10), while three (Rockstar, Take-Two and 2K) filed motions to dismiss certain claims, pursuant to Federal Rule of Civil Procedure 12(b)(6). On March 17, 2014, the Court recommended that the District Court grant-in-part and deny-in-part those motions; the District Court adopted that recommendation on April 24, 2014. ( See, e.g., Rockstar Action, D.I. 43; Rockstar Action, D.I. 44) Thereafter, the Court held a consolidated Rule 16 Scheduling Conference in the five cases, and issued a joint Scheduling Order on January 24, 2014. (D.I. 20)

Pursuant to the Scheduling Order, claim construction briefing is set to begin on October 16, 2014, and a Markman hearing is scheduled for December 5, 2014. ( Id. at 9-10) Fact discovery is scheduled to be completed on November 20, 2014, expert discovery is scheduled to conclude on March 13, 2015, and case dispositive motions are due April 2, 2015. ( Id. at 3-5, 10) A trial date is set for August 17, 2015. ( Id. at 11-12) In the Harmonix and Bethesda actions, the parties have exchanged certain initial disclosures and discovery has begun. ( See, e.g., D.l. 25, 26, 30, 33, 34, 35 & 36) The parties have not yet exchanged any initial disclosures in the Rockstar, Take-Two and 2K actions.

B. The Petitions for IPR and the Motion to Stay

On November 27, 2013, a defendant in one of the Central District Actions, Naughty Dog, Inc., ("Naughty Dog") filed two petitions for inter partes review ("IPR") with the Patent Trial and Appeal Board of the United States Patent and Trademark Office ("PTO"), one for each of the patents-in-suit here. (D.I. 16 at 1 n.1, 3) Naughty Dog later filed corrected petitions on December 17, 2013. ( Id. ) The petitions-IPR2014-00197 (for the '278 Patent) and IPR2014-00198 (for the '576 Patent)-request that all claims of each patent be cancelled as anticipated or obvious by four prior art references identified in the petitions. (D.I. 16; see also id., ex. 1 ("IPR2014-00197") at 4-5); IPR2014-00198 at 5, available at https://www.docketalarm.com/cases/PTAB/IPR2014-00198/Inter_Partes_Review_of_U.S._Pat._6307576/12-17-2013-PM -11598/Motion-4-Corrected_Petition_for_IPR_of_576_Patent/.

Defendants in this District-Bethesda, Harmonix, Rockstar, Take-Two and 2K-thereafter jointly filed the motion to stay on January 17, 2014. That motion requests that the Court stay the instant actions until the later of: (1) the PTO's initial decision on whether to grant Naughty Dog's petitions for IPR; or (2) the issuance of a claim construction order in the Central District Actions. (D.I. 16 at 1) It asserts that both of these events are "likely to occur by July 2014." ( Id. ) If the PTO institutes the IPR proceedings, Defendants indicate that they will ask the Court to "revisit whether a further stay pending conclusion of the IPR is warranted." ( Id. ) Briefing on the motion (including supplemental notices and statements filed by the parties) was completed on February 25, 2014. (D.I. 31)

II. STANDARD OF REVIEW

A court has discretionary authority to grant a motion to stay. See Cost Bros., Inc. v. Travelers Indem. Co., 760 F.2d 58, 60 (3d Cir. 1985); see also Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1426-27 (Fed. Cir. 1988). This Court has typically considered three factors when deciding a motion to stay: (1) whether granting the stay will simplify the issues for trial; (2) the status of the litigation, particularly whether discovery is complete and a trial date has been set; and (3) whether a stay would cause the non-movant to suffer undue prejudice from any delay, or allow the movant to gain a clear tactical advantage. See, e.g., Softview LLC v. Apple Inc., Civ. No. 10-389-LPS, 2012 WL 3061027, at *2 (D. Del. July 26, 2012).

III. DISCUSSION

After taking into account the three stay-related factors set forth above (to the extent they are relevant to the Court's decision here), as well as the particular circumstances of these cases, the Court will DENY Defendants' motion, with leave to renew the motion after the PTO makes a determination on whether to initiate IPR proceedings in response to Naughty Dog's ...


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