When A Delay Can Kill

Should inter partes reexamination of a patent at the Patent and Trademark Office be allowed to put a brake on ongoing litigation? That’s the question facing federal district court judge Gregory Sleet, who is presiding over the high stakes lawsuit Transmeta v. Intel in the U.S. district court in Wilmington. Transmeta Corp. alleges that ten of its patents are infringed in Intel’s hugely successful Pentium products.

At Intel’s request, the PTO has agreed to evaluate nine of Transmeta’s patents through the relatively new and increasingly popular process of inter partes reexamination. (The older ex parte reexaminations, which involve only the patent holder and the PTO, can be initiated by a third party, but inter partes reexaminations are more akin to a trial and allow adversarial third parties to participate.) Intel has asked for the Transmeta litigation to be suspended until after the reexamination is complete, but Transmeta has cried foul, accusing Intel of using inter partes as a stalling tactic. The plaintiff says that its survival hangs in the balance. “Transmeta will have substantial difficulty sustaining a viable technology development and licensing business if its patent rights were to be impaired by a sustained stay of the sort sought in this case by Intel,” the company wrote in an August brief.