D. Delaware Decision Underscores Rapid Acceptance of IPR by Courts

On September 4, 2013, the District of Delaware issued an Order staying pending litigation between Softview and Kyocera related to pending inter partes review proceedings styled as Kyocera Corporation v. Softview LLC (IPR2013-00004 and IPR2013-00007).  The decision is significant because the same court had earlier denied Kyocera’s motion to stay in view of a pending reexamination proceeding.  As such, while the Court was unwilling to stay the litigation in view of a pending reexamination, it changed course and did stay the litigation in view of a later-filed, pending inter partes review.  Indeed, by the time the Order to stay was issued, fact discovery was complete and the Court’s Markman Order had issued.

The rationale for the Court’s change in heart relied on the fact that, since discovery was now closed, there was less of a likelihood that evidence would become spoiled.  In addition, the IPR covered all asserted claims, versus the reexamination where only some of the asserted claims were rejected. Most importantly, however, and part of a growing trend in the district courts, the Board noted that inter partes review proceedings were more expeditious than reexamination proceedings and such speed supported a stay, especially when the inter partes review process was likely to narrow issues for trial.