Nanometrics v. Nova Measuring Instruments (PDF) Judge Armstrong Nanometric sued Nova for patent infringement. There was only one patent in suit. Nova requested and was granted reexamination of this patent. Nova then asked Judge Armstrong for a stay of the litigation. Nanometric’s principle argument, cited twice in this short opinion, was Ã¢â?¬Å?a stay is not warranted because it would merely delay the day of reckoning.Ã¢â?¬Â? The case had not progressed very far in discovery so the stay was granted. Judge Armstrong pointed out the chances a plaintiff takes when requesting reexamination:
In fact, if the PTO upholds the validity of the patent, then NanometricsÃ¢â?¬â?¢s position is strengthened, and its likelihood of monetary damages will increase.
Nanometrics also argued that Nova is abusing the reexamination because it has put 97 of NanometricsÃ¢â?¬â?¢s claims in reexamination for a result of a mere 2 claims rejected and 3 amended. This is clever advocacy because they didnÃ¢â?¬â?¢t mention, as Judge Armstrong points out, that there were actually only 2 patents previously put in reexamination. It looks like Nanometrics will have to wait to see NovaÃ¢â?¬â?¢s day of reckoning.