I know some readers probably want an update on the protective order hearing. I expect that will be a hefty post of interest to all D. Del. litigants—but I need to get the transcript first. In the mean time, though, please enjoy this spare and jargon-filled post which is only going to be of interest to patent practitioners.
We've talked about pre-institution stays before, and how hard they are to achieve. What's even harder? A stay of patent litigation before a patent challenge has even been filed.
Chief Judge Connolly dealt with such a stay motion this week in Beckman Coulter, Inc. v. Cytek Biosciences, Inc., C.A. No. 24-945-CFC (D. Del.). There, the accused infringer had filed an IPR for one of the three patents-in-suit, but based its stay motion on the idea that it planned to later challenge the remaining two. The Court easily denied the motion:
The motion was easy to decide. Cytek has not filed any post-grant review (PGR) petitions and refused to share with Plaintiff Beckman Coulter, Inc. (Beckman Coulter) the grounds for its hypothetical petitions. . . . Cytek is also noncommittal in its briefing, stating that it "intends to challenge the newly issued [#]106 and [#]107 patents in post-grant review as invalid for, among other things, failing to meet the requirements of 35 U.S.C. § 112." D.I. 108 at 3 (emphasis added); see also D.I. 108 at 15 ("Cytek's PGR petitions will challenge these patents based on 35 U.S.C. §§ 103 and/or 112.") (emphasis added). Cytek has failed to cite, and I am not aware of, any case granting a motion to stay based on hypothetical post-grant challenges that have not been filed, let alone instituted.
Beckman Coulter, Inc. v. Cytek Biosciences, Inc., C.A. No. 24-945-CFC, at 1-2 (D. Del. July 30, 2025).
The Court also noted that, for the one patent-in-suit where the defendant has filed an IPR, the IPR has not yet been instituted, that it was filed rather close to the statutory cut-off, and that a result would not issue until months before trial:
The timing of Cytek's IPR petition also counsels against a stay. Beckman Coulter filed this lawsuit in August 2024 and served its infringement contentions in February 2025. . . . Cytek waited another five months to file its IPR petition-less than one month before the IPR bar date for the #443 patent. . . . A trial date has been set for August 17, 2026, and the parties have substantially completed document production, exchanged invalidity and infringement contentions, and finished claim construction briefing in preparation for a Markman hearing scheduled next month on August 21, 2025. . . . The magistrate judge has heard and resolved multiple discovery disputes. D.I. 57, 60--61, 64, 70-71, 95, 9899, 101, 106. Fact discovery is scheduled to be completed on or before October 8, 2025. . . . While the parties have not begun expert discovery and I have yet to construe the disputed claims, any institution decisions will not come until early 2026, and by that time expert discovery will have closed and trial will be only months away.
Id. at 2-3.
Beyond the most obvious implication here—that your chances of a stay pending a hypothetical IPR probably aren't great—the decision also shows that, if you want a stay, there is definitely something to be said for filing your IPR early rather than waiting until near the statutory deadline.
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