Federal Circuit Refuses to Hear Appeal of Stay Pending Reexamination

Sorensen v. Lexar Media (Fed. Cir. 2011)

Sorensen’s patent infringement lawsuit against Lexar has been stayed for over two years, awaiting the outcome of the USPTO’s reexamination.  In early 2010, the examiner issued a final rejection which has been appealed to the USPTO’s internal board of appeals –  the BPAI. 

Based on the likely multi-year delay of any final resolution of the reexamination, Sorensen requested that the district court lift the stay and continue with the infringement lawsuit. The district court denied that request and Sorensen appealed to the Federal Circuit asking that the stay be lifted.

Appellate Jurisdiction: Normally, the Federal Circuit does not hear interlocutory appeals of stay decisions unless the lower court order creates “serious, perhaps irreparable, consequences.” 

Here, the court could not identify any particular need to hear this case — especially because both the district court and USPTO decisions will be appealable on the merits by the Federal Circuit. 

Appeal dismissed based on lack of appellate jurisdiction.


  • Sorensen may have a stronger argument if ongoing infringement was causing irreparable harm. However, the asserted patent has already expired.

8 thoughts on “Federal Circuit Refuses to Hear Appeal of Stay Pending Reexamination

  1. 8

    I wonder if the appeal is simply placed at the end of the queue, and whether doing so violates the rights of the patent owner to special dispatch?

  2. 5

    Yeah, Iza figure that ya support blanket judgment on others without anything more – ya wanna talk fluff…

  3. 3

    more deserving…

    of any unimportant design or weird… patent application

    Judge much Paulie?

  4. 1

    In this case [with ALL claims rejected in the reexam, low odds of reversal by the Board or the Fed. Cir., and the patent expired] forcing a highly-likely complete waste of time and money trial was clearly illogical. But in other cases where long PTO reexamination delays are unfairly delaying more deserving trials, I wonder if any parties have instead attempted an APA suit against the PTO for violation of the statutory “special dispatch” requirement by their long delays of reexaminations and their Board decisions for patents in litigation? Clearly Congress intended reexaminations to be conducted rapidly enough to avoid unnecessary costly litigation expenses [not slower than their handling of any unimportant design or weird mouse trap patent application.]

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