The natural corollary to a patentee’s right to exclude, at least in infringement litigation, is the prohibition against monopolistic activities. Thus, when facing a claim of infringement, a competitor-turned-defendant often responds with antitrust accusations. That patent litigation often involves claims under the Sherman Act is commonplace. But assuming both these counts will be considered in a single civil action, what should a court do when only one piece of the litigation has gone up on appeal?
District of Delaware Chief Judge Sue L. Robinson has answered that in those circumstances, efficiency and judicial economy dictate. In Monsanto appealed an earlier ruling addressing the infringement portion of the litigation. Monsanto then sought to stay Syngenta’s related antitrust claims. The Court, although noting that the interrelatedness of the parties’ claims had been contested, ultimately found that the infringement and antitrust issues possessed “minimal overlap.”
Given that it had already issued a rule 54(b) certification on the patent side, the Court found that the most efficient – and fair – way to resolve the entire litigation was to stay the antitrust action pending disposition of the appeal.
The implication for practitioners? A plaintiff’s request for leave to appeal early will result, judging by the low “minimal overlap” standard, in a stay of a pending counterclaim.