Re Stays to Litigation Pending IPR

Courts grant stays to litigation pending IPR less frequently then they grant stays pending CBM review.

Of the 119 total orders, 99 were orders on contested motions to stay litigation pending IPR and 57% of those 99 orders granted or granted-in-part a stay. Of the 119 total orders, 20 were orders on contested motions to stay litigation pending CBM review and 75% of those orders granted or granted-in-part a stay. These varying grant rates may be attributable to the different standards that courts apply when considering motions to stay litigation pending IPR and CBM review, as discussed below.

The three courts issuing the most orders on contested motions to stay litigation pending IPR and CBM review are the: Northern District of California (17 orders), District of Delaware (16 orders), and Central District of California (11 orders).

These jurisdictions have ordered stays with mixed frequency: Northern District of California (82% of orders granted or granted-in-part a stay), District of Delaware (56% of orders granted or granted-in-part a stay), and Central District of California (82% of orders granted or granted-in-part a stay).

Courts are only slightly more likely to grant a stay where all of the claims asserted in litigation are put before the PTAB for review.

Of the 119 total orders, 96 orders were in cases where all of the asserted claims in litigation were petitioned for review. Courts issued a stay in 63% of these 96 orders.

Similarly, courts only appear to be marginally more willing to grant a pre-institution stay where all of the asserted claims in litigation were petitioned for IPR or CBM review. Of the 93 pre-institution orders, 76 of them were in cases where each of the claims asserted in litigation were petitioned for IPR or CBM review. Courts issued stays in 59% of those 76 orders, just above the 56% grant-rate for all pre-institution orders.

CBM - Covered business method patent review

IPR - inter - Parte