Procedural History

In June 2009, in response to affirmative motions by plaintiffs Acer and HTC in the related actions, the Court stayed this litigation and vacated all dates pending further developments in the non-binding ex parte reexamination challenges brought by plaintiff HTC and others against the MMP patents in the U.S. Patent and Trademark Office. On February 12, 2010, after the ‘336 Patent had successfully emerged from the reexamination proceedings, the Court issued an order lifting the stay in this litigation, and the parties began to re-start the litigation process

Overview of USPTO Proceedings for Re-examination

Concurrent Reexamination and Litigation – If there is concurrent litigation and reexamination on a

patent, and the request for reexamination was filed as a result of court order, or the

litigation has been stayed for the purpose of reexamination, the Office will expedite

the proceedings by taking the case up for action at the earliest possible time, setting shorter

response times, and permitting extensions of time only upon a strong showing of sufficient cause.

[MPEP 2286]

Effect of Concluded Litigation on Reexamination

A court decision holding that a patent claim is valid will not preclude the Office from continuing to reexamine such claim in an ex parte reexamination proceeding, even if the court decision is final and

non-appealable.The Office applies the “broadest reasonable interpretation” for claim language in a reexamination proceeding, because claims may be amended during the proceeding.Courts apply a less liberal standard of claim interpretation, and therefore, the Office may conclude that a claim held valid in a court proceeding is unpatentable or invalid in an ex parte reexamination proceeding.[MPEP 2286]

A final, non-appealable court decision holding that a patent claim is invalid will preclude the Office from ordering any reexamination proceeding for such claim, or, will result in termination of any reexamination proceeding previously ordered as to such claim. [MPEP 2286]

My Question: If the current litigation is no longer stayed because the stay was based on the prior re-exam does this mean that the USPTO has not been under pressure to expedite the current re-exam because there is no litigation that has been stayed because of it?