Fresenius Med. Care Holdings, Inc. v. Baxter Int’l, Inc. (PDF0 2007 U.S. Dist. LEXIS 44107 Decided June 6, 2007 Judge Armstrong This is an interesting short opinion. ââ?¬Å?The Court is cognizant of the fact that this case is in a somewhat unusual posture that appears to be a novelty in the caselaw.ââ?¬Â? Judge Armstrong is not happy with Fresenius. The Court blames Fresenius for the potential irreparable harm it may suffer because of the real possibility that after Fresenius is adjudged an infringer and has a damages judgment against it, the USPTO will declare Baxterââ?¬â?¢s patents invalid.

But to allow Fresenius to now derail this litigation would be to sanction the most blatant abuse of the reexamination process.

The parties to suit have already expended a great deal of resources in this case, including a full jury trial. Fresenius argues that because the USPTO has made initial determinations that 12/15 of the patent claims are invalid, it does not make sense to have another jury trial on damages. Judge Armstrong relies on a ââ?¬Å?clear ruleââ?¬Â? that:

where, as here, discovery has commenced, claim construction has been briefed, and dispositive motions have been filed and disposed of, courts should not grant stays for reexamination before the PTO.

Judge Armstrong is clearly agitated that Fresenius now moves for a stay only after it lost at trial. Further delay associated with reexamination would unduly prejudice Baxter because Fresenius would be able to market and sell the allegedly infringing technology unfettered for even longer.

This case is now over four years old. Granting a stay at this late juncture would virtually guarantee the addition of numerous more years to its vintage. This case should now proceed with alacrity, not with the sloth that is the essence of a stay

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