UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
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`SECURITY PEOPLE, INC.,
`Plaintiff,
`
`v.
`
`OJMAR US, LLC,
`Defendant.
`
`Case No. 14-cv-04968-HSG
`
`ORDER GRANTING MOTION TO
`STAY
`Re: Dkt. No. 38
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`On April 30, 2015, Defendant Ojmar US, LLC (“Ojmar”) filed a motion to stay the case
`pending completion of inter partes review (“IPR”) proceedings. Dkt. 38 (“Mot.”). The Court, in
`its discretion, finds this matter suitable for resolution without oral argument. See Civ. L.R. 7-1(b).
`For the reasons articulated below, the motion is GRANTED.
`
`I.
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`BACKGROUND
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`America Invents Act
`A.
`By enacting the Leahy-Smith America Invents Act (“AIA”), Congress sought to “establish
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`a more efficient and streamlined patent system that will improve patent quality and limit
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`unnecessary and counterproductive litigation costs” and “to create a timely, cost-effective
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`alternative to litigation.” 77 Fed. Reg. 48,680-01 (Aug. 14, 2014) (to be codified at 37 C.F.R.
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`§ 42.100 et seq). To that end, AIA created the IPR procedure, by which the Patent and Trademark
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`Office’s (“PTO”) Patent Trial and Appeal Board (“PTAB”) may review the patentability of one or
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`more claims in a patent. See 35 U.S.C. §§ 311-319. IPR replaces the previous inter partes
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`reexamination procedure and converts the process from an examinational to an adjudicative one.
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`See Abbott Labs. v. Cordis Corp., 710 F.3d 1318, 1326 (Fed. Cir. 2013).
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`IPR allows any party other than the patent owner to challenge patent validity under 35
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`U.S.C. § 102 or § 103 “on the basis of prior art consisting of patents or printed publications.” 35
`ECOBEE 1020
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`Northern District of California
`United States District Court
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`001
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`U.S.C. § 311(a)-(b). The petitioning party must establish “a reasonable likelihood that the
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`petitioner would prevail with respect to at least [one] of the claims challenged in the petition” in
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`order for the PTO to institute IPR. 35 U.S.C. § 314(a). If the PTO decides to institute IPR, the
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`proceeding is conducted before a panel of three technically-trained Administrative Patent Judges
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`of the PTAB. See 35 U.S.C. §§ 6(a)-(c), 316. Following a final determination, the petitioning
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`party is estopped from asserting invalidity during a later civil action “on any ground that the
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`petitioner raised or reasonably could have raised during” the IPR. 35 U.S.C. § 315(e)(2).
`
`This Litigation
`B.
`Plaintiff Security People, Inc. (“SPI”) filed its complaint against Ojmar on November 10,
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`2014, alleging infringement of U.S. Patent No. 6,655,180 (the ’180 Patent). Dkt. No. 1. Ojmar
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`filed its answer and asserted six counterclaims on March 4, 2015. Dkt. No. 21. On March 30,
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`2015, SPI moved to dismiss Ojmar’s first and sixth counter claims and to strike Ojmar’s fourth
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`and fifth affirmative defenses. Dkt. No. 28. Ojmar filed a petition for IPR of the ’180 Patent in
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`late April of 2015, Dkt. No. 39-1, and moved to stay this case pending the outcome of that petition
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`on April 30, 2015, Dkt. No. 38. The PTAB’s decision concerning whether to institute proceedings
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`is expected no later than October 2015. Mot. at 2.
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`This case has just begun. The first Case Management Conference in this action was held
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`on April 1, 2015. Dkt. No. 31. SPI’s served its infringement contentions fourteen days after that
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`date. See Pat. L.R. 3-1. Ojmar’s invalidity contentions are due on May 29, 2015. See id. at 3-3.
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`The claim construction briefing process is scheduled to begin in mid-June. Dkt. No. 32.
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`II.
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`DISCUSSION
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`A.
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`Legal Standard
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`“Courts have inherent power to manage their dockets and stay proceedings, including the
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`authority to order a stay pending conclusion of a PTO reexamination.” Ethicon, Inc. v. Quigg, 849
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`F.2d 1422, 1426-27 (Fed. Cir. 1988) (citations omitted). While courts are “under no obligation to
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`stay proceedings pending parallel litigation in the PTAB, . . . judicial efficiency and the desire to
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`avoid inconsistent results may, after a careful consideration of the relevant factors, counsel in
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`favor of a limited stay, even before the PTAB has acted on a petition for IPR.” Delphix Corp. v.
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`Northern District of California
`United States District Court
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`002
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`Actifio, Inc., No. 13-cv-04613-BLF, 2014 WL 6068407, at *2 (N.D. Cal. Nov. 13, 2014). Indeed,
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`some courts in this district have recognized “a liberal policy in favor of granting motions to stay
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`proceedings pending the outcome of USPTO reexamination or reissuance proceedings.”
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`Pragmatus AV, LLC v. Facebook, Inc., No. 11-cv-02168-EJD, 2011 WL 4802958, at *2 (N.D.
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`Cal. Oct. 11, 2011).
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`Courts consider three factors when determining whether to grant a stay pending IPR: “(1)
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`whether discovery is complete and whether a trial date has been set; (2) whether a stay will
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`simplify the issues in question and trial of the case; and (3) whether a stay would unduly prejudice
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`or present a clear tactical disadvantage to the non-moving party.” Evolutionary Intelligence, LLC
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`v. Facebook, Inc., No. 13-cv-04202-SI, 2014 WL 261837, at *1 (N.D. Cal. Jan. 23, 2014). The
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`moving party bears the burden of demonstrating that a stay is appropriate. Netlist, Inc. v. Smart
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`Storage Sys., Inc., No. 13-cv-05889-YGR, 2014 WL 4145412, at *1 (N.D. Cal. Aug. 21, 2014).
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`Stage of the Litigation
`B.
`The first factor the Court considers is whether the litigation is at an early stage. See AT&T
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`Intellectual Property I v. Tivo, Inc., 774 F. Supp. 2d 1049, 1052 (N.D. Cal. 2011). Specifically,
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`courts consider “whether discovery is complete and whether a trial date has been set.”
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`Evolutionary Intelligence, 2014 WL 261837, at *1. “A stay is particularly appropriate for cases in
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`the initial stages of litigation or in which there has been little discovery.” Ho Keung Tse v. Apple
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`Inc., No. C 06-06573 SBA, 2007 WL 2904279, at *2 (N.D. Cal. Oct. 4, 2007)
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`SPI does not dispute that this case is in an early stage. Virtually all the activity in this
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`action (e.g., the filing of the answer and counterclaims, the first case management conference,
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`service of SPI’s infringement contentions) has occurred in the last three months. Courts have
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`found that this factor weighs in favor of a stay even where litigation has progressed substantially
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`further than the instant action. See Cypress Semiconductor Corp. v. LG Elecs., Inc., No. 13-cv-
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`04034-SBA, 2014 WL 5477795, at *2 (N.D. Cal. Oct. 29, 2014) (finding that this factor weighs in
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`favor of a stay where claim construction briefing was complete but “[t]here has been no
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`dispositive motion practice, the claims have not been construed, and no deadlines for completing
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`discovery, motion practice or trial have been set”); PersonalWeb Techs., LLC v. Facebook, Inc.,
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`Northern District of California
`United States District Court
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`003
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`No. 13-cv-01356-EJD, 2014 WL 116340, at *3 (N.D. Cal. Jan. 13, 2014) (finding that this factor
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`weighs in favor of a stay where “a claim construction order has been issued and the close of fact
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`discovery is fast approaching” but “a substantial portion of the work—expert discovery, summary
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`judgment, pre-trial preparation, and trial itself—lies ahead”); AT&T, 774 F. Supp. 2d at 1052
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`(finding that this factor weighed in favor of a stay where the parties had not exchanged expert
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`reports, conducted depositions, or filed any dispositive motions, and where claim construction had
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`been fully briefed but no hearing had been held and no trial date had been set).
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`Given the early stage of this litigation, the Court finds that this factor weighs heavily in
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`favor of a stay.
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`Simplification of the Case
`C.
`The second factor that the Court considers is whether granting a stay could simplify the
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`litigation. “The standard is simplification of the district court case, not complete elimination of it
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`by the PTAB.” LELO, Inc. v. Standard Innovation (US) Corp., No. 13-cv-01393-JD, 2014 WL
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`2879851, at *3 (N.D. Cal. June 24, 2014). Granting a stay pending IPR is “particularly” likely to
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`simplify the case “when a party has obtained PTO review of each of the asserted claims in the
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`patents-in-suit.” Evolutionary Intelligence, 2014 WL 261837, at *2.
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`Staying the case pending the outcome of IPR could simplify the case by rendering some or
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`all of Plaintiff’s infringement claims moot, estopping Ojmar from asserting any arguments it
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`raised or reasonably could have raised in the IPR, and providing the Court with PTAB’s expert
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`opinion on the claims at issue. See Evolutionary Intelligence, 2014 WL 261837, at *2. Indeed,
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`even if the PTAB decides to institute review and affirms the validity of every asserted claim, the
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`case would still be simplified because “such a strong showing would assist in streamlining the
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`presentation of evidence and benefit the trier of fact by providing the expert opinion of the PTO.”
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`PersonalWeb Techs., 2014 WL 116340, at *4.
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`SPI argues that the motion to stay should be denied because: (1) Ojmar has offered no
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`evidence that the PTAB is likely to institute a proceeding in response to its petition; and (2) Ojmar
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`would have to invalidate all three claims upon which it is alleged to infringe—or, in SPI’s words,
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`“hit a grand slam”—in order to avoid any surviving claims. Dkt. No. 40 (“Opp.”) at 2. The Court
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`Northern District of California
`United States District Court
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`004
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`does not find either argument persuasive.
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`First, “it is not uncommon for [courts] to grant stays pending reexamination prior to the
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`PTO deciding to reexamine the patent.” Pragmatus AV, 2011 WL 4802958, at *3 (collecting
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`cases). Either party may file a motion to lift the stay if any part of the petitions for IPR are
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`denied—so “any concern that the motion[] [is] premature is alleviated by the short time frame of
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`the initial stay and the Court’s willingness to reevaluate the stay if inter partes review is not
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`instituted for all of the asserted claims.” Evolutionary Intelligence, 2014 WL 261837, at *3; see
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`also Roche Molecular Sys., Inc. v. Cepheid, No. C-14-3228-EDL, 2015 WL 124523, at *4 (N.D.
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`Cal. Jan. 7, 2015) (“The early status of the IPR proceeding does not change this result. Several
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`cases have granted a stay even where, as here, the PTAB has not yet decided whether to institute
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`an IPR.”).
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`Second, and contrary to SPI’s contention, “[a] stay is not contingent upon the
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`reexamination proceeding resolving every claim and issue in this action. Rather, the salient
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`question is whether the reexamination will aid the Court or otherwise streamline the litigation.”
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`Evolutionary Intelligence, 2014 WL 261837, at *5 (citation omitted). Of course, if the PTAB
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`cancels all of the asserted claims in the ’180 Patent, this action will be rendered moot. However, a
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`ruling from the PTAB that cancels or narrows only some of the asserted claims may substantially
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`reduce the scope of this action. See id.; AT&T, 774 F. Supp. 2d at 1053. Even if the PTAB does
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`not invalidate any claims, the PTAB’s claim construction and invalidity analyses “would likely
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`prove helpful to this Court,” whether or not the standard applied is identical to the one this Court
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`must apply in the litigation. Black Hills Media, LLC v. Pioneer Elecs. (USA) Inc., No. 14-cv-
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`00471-SJO, 2014 WL 4638170, at *6 (C.D. Cal. May 8, 2014).
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`The Court finds that this factor also weighs heavily in favor of granting the stay. If
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`instituted, IPR is likely to greatly simplify the case. Were the Court to deny the stay until a
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`decision on institution is made, the parties and the Court would expend significant resources on
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`claim construction proceedings that could eventually be mooted by the IPR decision. The Court
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`finds that staying the case pending the PTO’s decision whether to institute IPR is the most
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`efficient use of resources. See PersonalWeb Techs., 2014 WL 116340, at *4 (finding that four-
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`Northern District of California
`United States District Court
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`005
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`month delay before PTO’s institution decision would issue was “relatively short” and did not
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`outweigh anticipated simplification of issues); Delphix, 2014 WL 6068407, at *2 (“At a minimum,
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`instituting a brief, limited stay of approximately five months to see whether and how the PTAB
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`will act on Defendant’s IPR petitions will conserve judicial resources and avoid inconsistent
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`results.”).
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`Undue Prejudice
`D.
`The third factor for the Court to consider is whether SPI will be unduly prejudiced by a
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`stay. SPI argues that Ojmar intentionally delayed filing its IPR petition for six months, which
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`“caused considerable consumption of this Court’s time by virtue of having already undertaken a
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`case management concurrence, having invoked the jurisdiction of the Court for its own benefit to
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`file a counter-claim against plaintiff, and after this Court has taken its time and energy to set a
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`complete scheduling of this case in compliance with the local patent rules.” Opp. at 3.
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`SPI’s argument is not well taken. While this action was filed in November of 2014, it
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`appears that Ojmar was not actually served the complaint for several months, and, in any event,
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`the case did not “begin” in a practical sense until March 4, 2015—the extended deadline for Ojmar
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`to file its responsive pleading as agreed to by SPI. Dkt. No. 13. Moreover, Ojmar was transparent
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`about its intention to move for a stay from the outset of this litigation. In the parties’ March 2,
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`2015 Joint Case Management Statement (filed two days before Ojmar answered SPI’s complaint),
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`Ojmar represented that it “may” move for a stay pending IPR. Dkt. No. 19 at 2. In the parties’
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`Supplemental Joint Case Management Statement filed on March 25, 2015, Ojmar alerted both the
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`Court and SPI that it now “anticipate[d] filing a motion to stay.” Dkt. No. 23 at 2. During the
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`April 1, 2015 Case Management Conference, Ojmar committed to filing both its IPR petition with
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`the PTO and a motion to stay with this Court by no later than April 30, 2015. Ojmar hit both
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`targets. See Dkt. No. 38 and 39-1.
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`Accordingly, the Court does not find Ojmar’s motion to stay to be untimely or the product
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`of “delay tactics” as argued by SPI. Opp. at 3. In fact, Ojmar filed its petition for IPR (and the
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`instant motion to stay) with more than six months remaining of the one-year statutory limit. 35
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`U.S.C. § 315(b) (providing defendants one year from the date of service of the complaint to
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`Northern District of California
`United States District Court
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`006
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`submit a petition for IPR); see also Asetek Holdings, Inc. v. Cooler Master Co., Ltd., No. 13-cv-
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`00457-JST, 2014 WL 1350813, at * 4 (N.D. Cal. Apr. 3, 2014). (“Delay alone [within the
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`statutory deadline] does not usually constitute undue prejudice because parties having protection
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`under the patent statutory framework may not complain of the rights afforded to others by that
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`same statutory framework.”) (citations and internal quotations omitted). Courts routinely find
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`even greater “delays” in seeking IPR to be reasonable. See, e.g., Software Rights Archive, LLC v.
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`Facebook, Inc., No. 12-cv- 03970-RMW, 2013 WL 5225522, at *6 (N.D. Cal. Sept. 17, 2013)
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`(“Although defendants did wait nearly a year to file the IPR petitions, they properly filed the
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`petitions within the statutory time frame, and the delay was not unreasonable under the facts
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`here.”); Cypress Semiconductor, 2014 WL 5477795, at *3 (finding that the fact that defendant
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`filed its IPR petitions close to the end of the statutory deadline “does not demonstrate undue
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`delay”).
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`At base, the only fact that could potentially weigh against a stay of this action is that SPI
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`and Ojmar are direct competitors. Asetek, 2014 WL 1350813, at *5 (“Courts recognize that, when
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`the parties are direct competitors, the risk of prejudice is higher to the non-moving party than it
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`would be otherwise.”) (citations omitted). However, courts in this district require “evidence to
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`substantiate an argument that direct competition will result in prejudice to the non-moving party.”
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`Cypress Semiconductor Corp. v. GSI Tech., Inc., No. 13-CV-02013-JST, 2014 WL 5021100, at *5
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`(N.D. Cal. Oct. 7, 2014) (collecting cases). Here, SPI submitted a declaration from Asil
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`Gokcebay, (the President and CEO of SPI), which estimates that the continued sales of Ojmar’s
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`allegedly infringing products would substantially reduce SPI’s sales of its competing products,
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`resulting in approximately $5.9 million in lost profits over the 2015 and 2016 years. See Dkt. No.
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`41 (“Gokcebay Dec.”) at ¶7. However, Gokcebay’s declaration provides no indication that his
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`estimate rises above the level of speculation. In essence, Gokcebay projected SPI’s expected
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`annual revenues into the future and then “[b]ased upon the allegations of the counter-claim, and
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`[his] understanding of the market and the effects of the Ojmar product on our sales,” performed an
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`unexplained and unsupported calculation to reach a total loss of revenue of approximately $8.8
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`million, which (assuming a “reasonable margin based upon experience”) led to a $5.9 million loss
`7
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`Northern District of California
`United States District Court
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`007
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`in profits. Id. at ¶ 5-7.
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`Gokcebay’s “back of the napkin” estimate based on his reading of the pleadings does not
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`provide this Court sufficient evidence to evaluate the degree of prejudice that SPI may suffer as
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`the result of a stay. See Asetek, 2014 WL 1350813, at *5 (finding that without more evidence than
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`the declaration of the Plaintiff’s CEO tending to show that the plaintiff would suffer prejudice as a
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`result of a stay due to the parties' status as direct competitors, “a stay could produce undue
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`prejudice, although the degree of prejudice is hard to estimate on this record.”). Gockebay’s
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`estimate is particularly difficult to evaluate given that SPI did not identify any of its own products
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`that practice the ’180 Patent in its infringement contentions as called for by this District’s Patent
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`Local Rule 3-1(g). See Dkt. No. 43-1, Ex. A at 2. Accordingly, as in Asetek, while the Court can
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`assume that SPI may suffer some prejudice as a result of a stay due to the parties’ status as direct
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`competitors, the Court cannot assess the degree of prejudice on the record provided.
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`In sum, the undue prejudice factor is either neutral or weighs slightly against a stay of this
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`action. On the one hand, Ojmar expeditiously petitioned for IPR and simultaneously moved this
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`Court for a stay pending the PTAB’s decision. On the other, Ojmar and SPI are direct
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`competitors, although the extent of the possible harm based on that relationship has not been
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`adequately presented to the Court.
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`*
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`*
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`*
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`After weighing the three factors outlined above, the Court finds that a stay is warranted
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`here. The first two factors strongly weigh in favor of a stay, while the third factor is either neutral
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`or cuts only slightly against staying this action. Accordingly, a stay will “effectuate[] the intent of
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`the AIA by allowing the agency with expertise to have the first crack at cancelling any claims that
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`should not have issued in the patents-in-suit before costly litigation continues.” Software Rights
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`Archive, 2013 WL 5225522, at *6.
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`III.
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`SPI’S OTHER ARGUMENTS
`SPI devotes the majority of its Opposition to an attack on the constitutionality of the AIA’s
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`IPR process. Opp. at 4-9. This argument is irrelevant to the question of whether a stay should
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`issue. SPI may challenge the actions of the PTAB through any available legal channel if and
`8
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`Northern District of California
`United States District Court
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`008
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`

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`when it receives an adverse decision.
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`SPI also argues that—should the Court stay this action— it should either: (1) require
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`Ojmar to post a bond as security for SPI’s lost sales during the IPR process; or (2) enjoin Ojmar
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`from selling its allegedly infringing products. The Court disagrees. SPI’s bare assertion that
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`Ojmar is a “shell company” that will immediately transfer funds to its foreign parent to avoid a
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`potential judgment, Mot. at 1, is insufficient to support a bond requirement. There is no actual
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`evidence of inability or unwillingness to satisfy a judgment in the record. Moreover, SPI has cited
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`no case decided after the passage of the AIA where a Court has required the moving party to post
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`a bond upon issuance of a stay pending IPR. See Brixham Solutions Ltd. v. Juniper Networks,
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`Inc., No. 13-CV-00616-JCS, 2014 WL 1677991, at *2 (N.D. Cal. Apr. 28, 2014) (“[T]he potential
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`delay associated with inter partes review is not significant in comparison to the post-grant review
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`procedures that existed prior to the enactment of the America Invents Act.”). Accordingly, based
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`upon the evidence presented by the parties, the Court finds that neither a bond requirement nor an
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`injunction preventing Ojmar’s sales of the allegedly infringing products is warranted during the
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`pendency of the stay.
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`IV.
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`CONCLUSION
`For the foregoing reasons, the Court GRANTS Ojmar’s motion to stay the case pending
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`decision by the PTO whether to institute IPR of the claims asserted in Ojmar’s petition. The
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`parties shall file a joint status report within five days of the issuance of PTO’s decision on whether
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`to institute IPR challenging the patent-in-suit, informing the Court of the PTO’s decision. At that
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`time, the Court will issue an order addressing further proceedings in the case.
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`IT IS SO ORDERED.
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`Dated: May 29, 2015
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`______________________________________
`HAYWOOD S. GILLIAM, JR.
`United States District Judge
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`Northern District of California
`United States District Court
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`009
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