Patent Law

Federal Circuit Refuses to Hear Appeal of Stay Pending Reexamination

By Dennis Crouch

Sorensen v. Lexar Media (Fed. Cir. 2011)

Sorensen's patent infringement lawsuit against Lexar has been stayed for over two years, awaiting the outcome of the USPTO's reexamination.  In early 2010, the examiner issued a final rejection which has been appealed to the USPTO's internal board of appeals –  the BPAI. 

Based on the likely multi-year delay of any final resolution of the reexamination, Sorensen requested that the district court lift the stay and continue with the infringement lawsuit. The district court denied that request and Sorensen appealed to the Federal Circuit asking that the stay be lifted.

Appellate Jurisdiction: Normally, the Federal Circuit does not hear interlocutory appeals of stay decisions unless the lower court order creates 'serious, perhaps irreparable, consequences.' 

Here, the court could not identify any particular need to hear this case — especially because both the district court and USPTO decisions will be appealable on the merits by the Federal Circuit. 

Appeal dismissed based on lack of appellate jurisdiction.

Notes:

• Sorensen may have a stronger argument if ongoing infringement was causing irreparable harm. However, the asserted patent has already expired.

Full post as published by Patently Obvious on March 05, 2011 (boomark / email).