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The formula of intellectual reexaminations, which are supposed to encompass all of the phenomenon's difficulties, has come to represent one of the accepted methodologies within the policy of listening to the other.
16) The Copley court upheld the bifurcation plan despite a challenge under the Reexamination Clause by distinguishing the Seventh Circuit's decision in a case entitled, In the Matter of Rhone-Poulenc Rorer Inc.
Specifically, each claim is based entirely on eBay's petitioning of the PTO to review the validity of the Patents through the ex parte reexamination procedure, and eBay's statements to the PTO in connection with those petitions.
Courts generally weigh three factors when deciding whether to grant a stay pending ex parte reexamination of the patent at issue: "(1) whether a stay would unduly prejudice or present a clear tactical disadvantage to the non-moving party; (2) whether a stay will simplify the issues in question and trial of the case; and (3) whether discovery is complete and whether a trial date has been set.
Courts are split as to whether a protective order has the effect of barring a lawyer--and thus anything the lawyer became aware of during discovery--from participating in a reexamination after issuance of the protective order, however.
The company said that the issuance of the NIRC for US' 584 marks the end of the latest series of Reexamination attacks against the MMP portfolio.