As such, for defendants looking to stay litigation, it is usually prudent to not only file the petition for IPR quickly but also to move to stay the litigation as soon as a petition for IPR is filed, even before it is initiated. The potential benefit is that the case gets stayed; the potential downside is that the stay is denied without prejudice with leave to re-file. On the other hand, waiting until IPR is initiated allows the litigation to proceed for up to an additional six months, which may then decrease the chances of a stay at all.

Courts ubiquitously apply a three-factor test when determining whether to stay litigation pending IPR, which examines: (1) the stage of the litigation; (2) whether a stay will simplify and streamline the issues that may be presented in subsequent litigation; and (3) whether a stay would cause undue prejudice or a clear tactical disadvantage to the non-moving party.3 Some courts have noted that additional factors may also be considered in the analysis.4 In the context of CBM review, Congress codified this three-factor test and added a fourth factor, which requires courts to consider "whether a stay, or the denial thereof, will reduce the burden of litigation on the parties and on the court."