Realvirt, LLC v. Lee
Realvirt, LLC v. Lee
Opinion of the Court
ORDER
The matter is before the Court on plaintiff Realvirt, LLC’s motion to stay the Order issued on October 27, 2016 directing plaintiff to pay $103,259.52 to the defendant in this case, the Patent and Trademark Office (“PTO”).
Plaintiff has appealed that Order to the United States Court of Appeals for the Federal Circuit. (Doc. 81). Plaintiff now moves to stay the Order pending the Federal Circuit’s resolution of (1) plaintiffs appeal of that Order, (2) the resolution of an earlier Order in this case dismissing plaintiffs patent application for lack of standing,
The Supreme Court has stated that the issuance of a stay is “an exercise of judicial discretion,” and that the “propriety of its issue is dependent upon the circumstances of the particular case.” Nken v. Holder, 556 U.S. 418, 433, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (internal quotation marks omitted). There are four factors used to determine if a stay is appropriate: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding;” and (4) the public interest. Id. at 434,129 S.Ct. 1749 (internal quotation marks omitted).
On balance, and for good cause shown, these four factors weigh in favor of granting a stay in this case with respect to the attorneys’ fees portion of the Order and requiring plaintiff to post a bond for the remainder of the Order. To begin with, it is important to note that courts have sensibly concluded that the first factor
With respect to the second factor, plaintiff has also produced some evidence that it will suffer irreparable financial injury should it be required to pay the full amount of the Order, so the second factor supports plaintiffs request for a stay. And, as the Supreme Court has noted, these first two factors are the most important. See Nken, 556 U.S. at 434, 129 S.Ct. 1749. As for the third and fourth factors, both factors support a partial stay.
Although a partial stay is appropriate in these circumstances, the interest of the PTO in collecting its money judgment must also be taken into account. The best way to accommodate that interest is to grant plaintiffs motion for a stay only with respect to the $48,454.62 in attorneys’ fees because the Federal Circuit will resolve that issue in plaintiffs pending appeal. At the same time, plaintiff must post a bond for the remaining expenses, which the statute clearly authorizes. See 35 U.S.C. § 145, That outcome balances plaintiffs need for a stay while accommodating the PTO’s interest in collecting its judgment. See Alexander v. Chesapeake, Potomac & Tidewater Books, Inc., 190 F.R.D. 190, 193 (E.D. Va. 1999) (“In determining whether to issue a stay pending appeal on the basis of less than a full bond, a district court should act to preserve the status quo while protecting the non-appealing party’s rights pending appeal.”) (internal quotation marks omitted).
Accordingly, and for good cause,
It is hereby ORDERED that plaintiffs motion to stay the Court’s October 27, 2016 Order requiring it to pay $103,259.52 to the PTO (Doc. 82) is GRANTED with respect to the $48,454.62 in attorneys’ fees. Plaintiffs obligation to pay that amount to the PTO is STAYED pending the Federal Circuit’s resolution of plaintiffs appeal of the October 27, 2016 Order.
. The named defendant, Michelle K. Lee, is the Under Secretary of Commerce for Intellectual Property and the Director of the PTO.
. That statute provides that an applicant dissatisfied with a Patent Trial and Appeal Board decision can file a separate civil action in the district court, and that “[a]ll the expenses of the proceedings shall be paid by the applicant.” 35 U.S.C. § 145.
. See Realvirt, LLC v. Lee, 195 F.Supp.3d 847, 864 (E.D. Va. 2016), appeal docketed, No. 16-2669 (Fed. Cir. Sept. 20, 2016).
. See Narikwest, Inc. v. Lee, 162 F.Supp.3d 540 (E.D. Va. 2016), appeal docketed, No. 16-1794 (Fed. Cir. Apr. 5, 2016).
. The PTO argues that plaintiffs motion for a stay is tantamount to a motion for reconsideration under Rule 59(e), Fed. R. Civ. P., but that argument is erroneous because plaintiff is entitled to seek a stay of the October 27, 2016 Order.
. As noted above, plaintiff requests that the stay be granted not only until the Federal Circuit decides the appeal arising out of the October 27, 2016 Order, but also until the Federal Circuit decides whether plaintiff has standing to pursue its patent application. That argument fails because, as explained in the Memorandum Opinion accompanying the October 27, 2016 Order, plaintiff’s obligation to pay attorney’s fees applies regardless of whether plaintiff ultimately wins or loses in
Reference
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- REALVIRT, LLC v. Michelle K. LEE
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- Published