Avocent Won’t Stay Quietly

Posted on | October 15, 2008 | 2 Comments

2008-1564 Avocent Redmond v. Rose Electronics
WD/WA 06-1711
Judge Marsha Pechman

Plaintiff Avocent Redmond appeals from the order of Judge Marsha Pechman denying its motion to stay or modify the protective order.

Avocent sued Rose and others for infringing 5,884,096; 6,112,264; and 7,113,978, all related to a computerized switching system for coupling a workstation to a remotely located computer.  The patents are currently in reexamination by the PTO.

Avocent sued Rose for infringement of the 3 patents and, in late 2007, Rose sought reexamination of those patents with the PTO.  Rose also moved to stay the litigation pending reexamination which, over Avocent’s objection, was granted.

Months later, Avocent brought the instant motion to lift the stay–however the court, noting no new facts or circumstances, deemed it a tardy motion for reconsideration but considered the relevant factors anyway:

1. whether continuation of the stay poses an undue hardship on plaintiff;
2. whether the results of the reexamination are likely to simplify this action; and
3. whether discovery in this action has proceeded beyond a point where a stay is reasonable.

The court concluded that the stay should continue.  No new facts on hardship were presented, and there was apparently some long delay by Avocent in bringing action (at least concerning its earlier patent).

Avocent had likewise conceded that the reexamination might simplify the action, or at least that it might render much of the court’s activity moot if proceedings were not stayed.

Finally, discovery had barely started when the stay was issued, with only a single, 3.5 hour deposition in the books.  In sum, the factors all supported continuing the stay.

As for the protective order, Avocent wanted to provide to the PTO documents it received in the litigation that were covered by the Protective Order.  The court denied this request, writing:

Plaintiff cannot use the litigation forum to acquire evidence for use in an administrative proceeding when the evidence would not otherwise be available in that forum.

Notes: PATracer didn’t do any research, but I wonder whether this order is appealable.  It certainly is interlocutory, but doesn’t seem to fit under any of the provisions of 28 U.S.C. § 1292 (unless a stay is considered an injunction).

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