Stay pending interlocutory appeal of denial of stay for ungranted CBM petitions denied.

Intellectual Ventures II LLC v. JP Morgan Chase & Co. et al.

Case Number: 1:13-cv-03777

Summary: JP Morgan Chase (“JPMC”), having lost a motion to stay this case pending resolution of IPRs and CBMs [LINK TO 19 ], filed an interlocutory appeal with the Federal Circuit pursuant to § 18(b)(2) of the AIA. JPMC cited to VirtualAgility, Inc. v., Inc., No. 2014-1232, 2014 WL 3360806, at *1 (Fed. Cir. July 10, 2014), where the Federal Circuit, by a two-to-one vote, overturned an E.D. Texas court’s denial of a stay following the PTAB’s grant of a CBM petition.  

Judge Hellerstein refused to grant a stay. He distinguished VirtualAbility, because there, unlike the instant case, the CBM petition had been granted. He also cited VirtualAbility for the proposition that the Federal Circuit approves of denying a pre-grant stay:

    We note at the outset that it was not error for the district court to
    wait until the PTAB made its decision to institute CBM review
    before it ruled on the motion. Indeed, while some district courts
    ruled on motions to stay before the PTAB granted the petition for
    post-grant review, see, e.g., Intertainer, Inc. v. Hulu, LLC, No. 13-
    cv-5499, 2014 WL 466034, at *1 (C.D. Cal. Jan. 24, 2014), others
    have waited until post-grant review was instituted, and still others
    denied as premature the motion to stay without prejudice to refiling
    after institution of post-grant review
    , see, e.g., Checkfree Corp. v.
    Metavante Corp., No. 12-cv-15, 2014 WL 466023, at *1 (M.D. Fla.
    Jan. 17, 2014). We express no opinion on which is the better practice.
    While a motion to stay could be granted even before the PTAB rules on a
    post-grant review petition, no doubt the case for a stay is stronger after
    post-grant review has been instituted.

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