Possibility of repeal of false marking statute is not a basis to stay litigation

Last week, I wrote about Judge Merryday's denial of a motion for leave to add an equitable estoppel defense to a false marking claim in the Advanced Cartridge Technologies v. LexMark International dispute. Another interesting order has come out. The defendant had filed an inter partes reexamination request, and asked the court to stay the litigation while the reexamination runs its course. The court refused that first motion.

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)