A Blog About Intellectual Property Litigation and the District of Delaware

Although the trend in D. Del. is to grant IPR stays post-institution, the inverse is also true: pre-institution have become much more difficult to obtain.

In an oral order denying a pre-institution stay last Thursday, Judge Burke took the opportunity to reiterate why these motions are generally denied:

[W]ith regard to the simplification factor, the Court (absent some unique circumstance not present here) does not see the wisdom in staying a case that is otherwise proceeding forward (with a schedule already in place), in favor of the occurrence of an event (grant of an IPR petition and subsequent institution of an IPR) that has not happened yet. The Court also notes that although, as a statistical matter, it is likely that at least some of Defendants' petitions may be granted, it is also the case that IPR institution rates at the PTAB continue to decline year−over−year[.]

Pre-institution stays are still sometimes granted, but you'll be facing an uphill battle these days.

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