United States District Court, D. Delaware
April 9, 2015
KAAVO INC., Plaintiff,
COGNIZANT TECHNOLOGY SOLUTIONS CORPORATION, Defendant. KAAVO INC., Plaintiff,
TIER 3, INC., APPFOG, INC. and SAVVIS COMMUNICATIONS CORPORATION, Defendants.
CHRISTOPHER J. BURKE, Magistrate Judge.
Before the Court are motions to stay the proceedings in the instant patent infringement cases. The motions to stay were filed by Defendants Cognizant Technology Solutions Corp., Tier 3, Inc., Appfog, Inc., and Savvis Communications Corp. (collectively "Defendants"), (D.I. 15; D.I. 21, Civil Action No. 14-1193-LPS-CJB), and are opposed by Plaintiff Kaavo Inc. ("Plaintiff"). Defendants seek a stay pending resolution of motions filed pursuant to Federal Rule of Civil Procedure 12 (collectively, the "motions to dismiss"); the motions to dismiss assert that the patent-in-suit, United States Patent No. 8, 271, 974 (the "974 patent"), is not directed to patent-eligible subject matter under 35 U.S.C. § 101 ("Section 101"). (D.I. 14; D.I. 19, Civil Action No. 14-1193-LPS-CJB) For the reasons set forth below, the motions to stay are GRANTED.
I. 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, 60-61 (3d Cir. 1985). 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., FMC Corp. v. Summit Agro USA, LLC, Civil Action No. 14-51-LPS, 2014 WL 3703629, at *2 (D. Del. July 21, 2014); Cooper Notification, Inc. v. Twitter, Inc., Civ. No. 09-865-LPS, 2010 WL 5149351, at *1 (D. Del. Dec. 13, 2010).
The Court, which has been referred these motions for resolution by Chief Judge Leonard P. Stark, (D.I. 6; D.I. 5, Civil Action No. 14-1193-LPS-CJB), will analyze the three stay factors in turn.
A. Simplification of Issues for Trial
Defendants argue that the motions to dismiss, if "resolv[ed] in favor of Defendants will resolve the entirety of Kaavo's case, eliminating the need for discovery at all, and avoiding the substantial costs and fees involved in that phase of the case." (D.I. 22 at 6, Civil Action No. 14-1193-LPS-CJB) The fact that the motion, if resolved a certain way, could be entirely case-dispositive as to all asserted claims of the one patent-in-suit (and thus, of the entire suit against all Defendants seeking a stay), is certainly a fact inuring to Defendants' benefit here. Cf. SenoRx v. Hologic, Inc., Civ. Action No. 12-173-LPS-CJB, 2013 WL 144255, at *3-4 (D. Del. Jan. 11, 2013) (in assessing the simplification factor as to a request for a stay in favor of inter partes reexamination, examining what percentage of the asserted claims are at issue in the reexamination proceeding). And there is no question that, as Defendants repeatedly note, the Court has the discretion to conclude that "[i]n certain circumstances it may be appropriate to stay discovery while evaluating a motion to dismiss where, if the motion is granted, discovery would be futile." Mann v. Brenner, 375 F.Appx. 232, 239 (3d Cir. 2010); see also Levey v. Brownstone Inv. Grp., LLC, 590 F.Appx. 132, 137 (3d Cir. 2014).
But in considering the prospects for simplification, our Court has assessed all of the possible outcomes of the proceeding or inquiry that the case would be stayed in favor of-not just the potential outcome most favorable to the party seeking the stay. See SenoRx, 2013 WL 144255, at *3 (considering how the case would be simplified if any of "three possible outcomes" of a reexamination proceeding occurred, and finding that "[w]hatever outcome occurs, there is the potential for the simplification of issues for trial") (citing Abbott Diabetes Care, Inc. v. DexCom, Inc., C.A. No. 06-514 GMS, 2007 WL 2892707, at *5 (D. Del. Sept. 30, 2007)). And here, while the cases would certainly be greatly simplified were the motions to dismiss ultimately to be granted as to all asserted claims (since the cases would all then end soon after), were the motions denied, little efficiency gain would be realized.
In assessing this factor, our Court has also examined to what degree there was overlap between the legal issues involved in the instant case, as compared to the issues to be litigated in the proceeding/inquiry that the case would be stayed in favor of. In the context of a stay in favor of an inter partes reexamination or review proceeding-a proceeding that might well encompass a significant number of the claims and defenses that would be at issue in the district court litigation (e.g., defenses pursued under 35 U.S.C. §§ 102 & 103)-it could be that what occurs at the United States Patent and Trademark Office ("PTO") would impact a significant percentage of the legal issues at play in the district court case. See, e.g., SenoRx, 2013 WL 144255, at *4. Analogizing that inquiry to the situation here, a stay of the district court case in favor of resolution of any one motion is not going to fare as well in the "simplification" analysis. The motions to dismiss here involve a Section 101 defense-an important legal issue to be sure, but only one of the many claims and defenses that are at issue in the cases. If those motions are not resolved entirely in Defendants' favor, and the cases must go on, then the majority of the legal issues relevant to the case will still be pending and unaddressed. Cf Ever Win Int'l Corp. v. Radioshack Corp., 902 F.Supp.2d 503, 507 (D. Del. 2012) (noting, in light of the fact that many issues in the district court case would not be raised in an inter partes reexamination proceeding, that "if some or all of the claims emerge from reexamination, a not insignificant portion of the case will remain unilluminated by the PTO's review"). In that scenario, a stay would not have simplified the case much at all.
In the end, the prospect of simplification if a stay is granted is very real, but in light of the other factors set out above, the Court does not think it weighs as strongly in favor of Defendants as Defendants assert that it does. Instead, the Court believes that, taking into account all of the issues discussed above, this factor weighs slightly in favor of a stay.
B. Status of Litigation
There is no question that these cases are in their very early stages. A Case Management Conference has been held, but no Scheduling Order has yet been entered and discovery has not yet begun. With the Court and the parties having invested relatively few resources in the cases since their filing, this factor strongly favors a stay. See, e.g., Ever Win, 902 F.Supp.2d at 507-08 (coming to the same conclusion, where the case was "in its very early stages" as "[n]o initial disclosures have been exchanged, no Scheduling Order has been entered [and] no discovery has occurred").
C. Undue Prejudice
Much of the parties' discussion as to this final stay factor was focused on assessing the relationship of the parties, which typically involves considering whether the parties are direct competitors. See, e.g., SenoRx, 2013 WL 144255, at *7; Cooper Notification, 2010 WL 5149351, at *5; Belden Technologies Inc. v. Superior Essex Commc'ns LP, Civ. No. 08-63-SLR, 2010 WL 3522327, at *3 (D. Del. Sept. 2, 2010). This subfactor is often a very important one in the stay calculus. Courts have recognized that when the parties are direct competitors, there is a reasonable chance that delay in adjudicating the alleged infringement will have outsized consequences to the party asserting infringement has occurred, including the potential for loss of market share and an erosion of goodwill. See, e.g., Nexans Inc. v. Belden Inc., C.A. No. 12-1491-SLR-SRF, 2014 WL 651913, at *3 (D. Del. Feb. 19, 2014); SenoRx, 2013 WL 144255, at *7 (citing Nat'l Prods., Inc. v. Gamber-Johnson LLC, No. 2:12-cv-00840, 2012 WL 3527938, at *2-3 (W.D. Wash. Aug. 14, 2012)). Even in cases where there are a fair number of other competitors in the market, so long as plaintiff and defendant were joint market participants and engaged in some demonstrated level of competition, our Court has tended to find that some amount of potential undue prejudice was at play. Alternatively, where there is no evidence of direct competition at all beyond attorney argument, this subfactor does not support denial of a stay. Ever Win, 902 F.Supp.2d at 510.
Here, the record is very sparse on the competition issue. Plaintiff claims that it is a "practicing entity in direct competition" with Defendants "in the marketplace for cloud computing network services[.]" (D.I. 19 at 3-4) For their part, Defendants disagree, and note that the "cloud computing market" contains an "innumerable number of businesses[.]" (D.I. 20 at 6). But neither party supplemented the record with evidence on this issue when filing briefing on the motions to stay. ( See D.I. 19 at 3 (Plaintiff's brief citing no record support for the allegation that the parties are competitors); D.I. 20 at 3 (Defendants' brief offering no citation for their assertions regarding the nature of the cloud computing market)) Plaintiff did attach some purportedly relevant exhibits to a filing made in advance of a recent Case Management Conference (at which the stay issue was to be argued), but Plaintiff failed to meaningfully explain the exhibits' relevance in their filing. (D.I. 25 at 1 & exs. 2-6) At a general level, the exhibits (printouts from Plaintiffs and Defendants' websites) appear to show that Plaintiff and at least two Defendants offer cloud computing network services of some kind. (See D.I. 25, ex. 2 at 3 ("Kaavo's software solve[s] the challenge of deploying and managing distributed applications, workloads, and IT environments in the clouds."); D.I. 25, ex. 3 at 5 ("Cognizant's Cloud Application Services help you move to the cloud...."); D.I. 25, ex. 5 at 8 ("AppFog [is] committed to meeting the needs of our customers for public cloud... deployments"). But as to whether Plaintiff and Defendants' products actually do similar things, or whether Plaintiff and any Defendant have ever competed for the same or similar customers in this very broadly-articulated market, there is little guidance in the record. And so, at best, this subfactor weighs only slightly against the grant of the motions to stay.
The parties make a few other arguments regarding the "undue prejudice" factor. For example, Defendants argue that there will be only a "short delay" while the motions to dismiss are resolved, and thus, this is likely to implicate little prejudice to Plaintiff. (D.I. 22 at 7, Civil Action No. 14-1193-LPS-CJB) Yet oral argument on the motions has been requested, (D.I. 22), and in light of the considerable docket of this Court, the delay in resolving the motions to dismiss could be significant. While the potential for delay alone does not, by itself, amount to undue prejudice[, ]'" Ever Win, 902 F.Supp.2d at 509 (quoting Wall Corp. v. BondDesk Grp., LLC, C.A. No. 07-844 GMS, 2009 WL 528564, at *2 (D. Del. Feb. 24, 2009)), it is a subfactor the Court can consider. The likelihood of a delay favors Plaintiff's position.
Defendants also assert, (D.I. 28 at 32-33), that the timing of the stay request does not suggest that Defendants are seeking an inappropriate tactical advantage-a subfactor that, if present in the case, would weigh against a stay. Cf. Belden Techs., 2010 WL 3522327 at *2 (noting that a "request for reexamination made well after the onset of litigation followed by a subsequent request to stay may lead to an inference that the moving party is seeking an inappropriate tactical advantage.") (emphasis added). The Court agrees. Defendants have filed this motion early in the case, at a time that does not suggest inappropriate gamesmanship.
In light of the potential for some significant delay if the motions to stay are granted, and with some (albeit limited) indication that Plaintiff and Defendants are a part of a large (though very ill-defined) market, the Court is prepared to say only that this factor weighs slightly against a stay.
On balance, the possibility of simplification of the issues weighs slightly in favor of a stay, and the status of the litigation weights strongly in favor of a stay. The undue prejudice factor weighs slightly against a stay. Had Plaintiff made a stronger showing that the parties are direct competitors, the Court's overall conclusion here may have differed. But in the end, the possibility of dramatically simplifying the case, and of realizing such simplification at a very early stage, is compelling enough to warrant grant of Defendants' motions. For the foregoing reasons, the motions to stay are GRANTED.