In a recent report and recommendation, Magistrate Judge Mary P. Thynge recommended that the court deny defendant’s motion to stay the litigation pending inter partes review (“IPR”). TruePosition, Inc. v. Polaris Wireless, Inc., C.A. No. 12-646-RGA/MPT (D. Del. Oct. 21, 2013). Judge Thynge noted that “[t]he court considers three factors when deciding whether to stay a case.” Id. at 3. First, Judge Thynge found the status of the litigation weighed against granting stay. Judge Thynge noted that “[s]ubstantial time and resources have been devoted in this case to scheduling and discovery disputes.” Id. at 8 (quoting Softview LLC v. Apple Inc., C.A. No. 10-389-LPS, 2012 WL 3061027, at *4 (D. Del. July 26, 2012)). Specifically, Judge Thynge explained that “[a]lthough a trial date has not been set . . . the claim construction process has been completed with the exchange of all briefs and the recent Markman hearing.” Id. Further, “[f]act discovery is scheduled to close on December 1, 2013, significant document production has already occurred, a number of discovery disputes resolved, and dispositive motions are due May 10, 2014.” Id. Second, Judge Thynge considered whether a stay would simplify the issues in question and trial, and found that this factor disfavored stay. Id. at 9-10. Judge Thynge explained that “claim 98 and specific challenges to the remaining claims subject to the IPR petition fall outside of the scope of IPR.” Id. at 10. Judge Thynge also found this factor disfavored stay in light of the fact that the IPR petition was not yet granted and when any result from the IPR would occur was uncertain. Id. at 10.
Third, Judge Thynge considered whether stay would unduly prejudice or present a clear tactical disadvantage to plaintiff, analyzing “the relationship between the parties,” “the status of the IPR request,” and the “timing of the IPR request and motion to stay.” Id. at 3, 10-14. Judge Thynge found the relationship between the parties slightly favored granting stay, citing, among other things, plaintiff’s failure to seek an injunction. Id. at 11-12. On the other hand, Judge Thynge found that because the IPR request was “still pending before the PTO with a potential delay until December 4, 2013 for grant or denial, this motion is premature.” Id. at 13. Judge Thynge further noted that defendant waited “until the end of the statutory deadline to file its IPR, close to the eve of claim construction briefing, and after substantial document discovery was conducted,” which also weighed slightly against granting stay. Id. at 14. Judge Thynge found that the factors, on balance, weighed against granting stay and denied defendant’s motion. Id.