United States District Court, N.D. California.

August 21, 2014.

The Court also notes that Defendants have not explained adequately their delay in seeking inter partes review. This action has been pending for over a year. Had Defendants acted expeditiously in seeking review, the Court would have received an indication by now as to whether the PTO would institute the review process. The timing of Defendants' requests raises concerns that the delay was for strategic purposes only.

Accordingly, this factor weighs against a stay of the litigation at this point.

II. CONCLUSION

Based upon the Court's analysis of the three-factor test, one weighs in favor of a stay, one weighs against, and one is neutral. On the one hand, the Court is mindful of the effect of the Fresenius case and does not intend to engage in claim construction that might be rendered moot, or significantly undercut, by a decision of the PTO. On the other, the mere filing of a petition for inter partes review tells the Court little about whether such a decision is likely. Accordingly, Defendants' requests for stay pending inter partes review are DENIED WITHOUT PREJUDICE to seeking a stay upon the PTO's determination whether to proceed with review.

Given the balancing of the various considerations associated with the posture of this litigation, the Court will not proceed with an early claim construction and Markman hearing. The Court will conduct claim construction in conjunction with any summary judgment motions or, alternatively, at the time of trial.

The parties are ORDERED to meet and confer on deadlines for a further case management order. The Court SETS a further case management conference on September 22, 2014, at 2:00 p.m. The parties shall file an updated joint case management seven days in advance of the conference. The Markman hearing currently set for November 19, 2014, is VACATED.

This Order terminates Docket Nos. 218 and 220.

IT IS SO ORDERED