The defendant filed a second motion to stay, this time arguing not only that the reexamination would simplify the litigation, but also that "Congress will likely repeal the false patent marking statute, and that the Federal Circuit will likely hold the statute unconstitutional." The Court was not convinced:
Although either the re-examination or a change to the false patent marking statute promises to simplify the issues, neither the re-examination, nor the legislative effort to modify the false patent marking statute, nor the constitutional challenge before the Federal Circuit demonstrably will conclude before this litigation. The occurrence and content of each prospect is speculative and offers no sound basis to frustrate a litigant’s access to the court.
Second Motion to Stay denied.
Advanced Cartridge Technologies, LLC v. Lexmark International, Inc., slip op. Case No. 8:10-cv-0486 (M.D. Fla. Apr. 21, 2011) (J. Merryday)