Case 1:11-cv-00484-RGA-CJB Document 170 Filed 09/11/13 Page 1 of 2 PageID #: 2916

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

RIVERBED TECHNOLOGY INC., Plaintiff,

V.

Civil Action No. 11-484-RGA

SILVER PEAK SYSTEMS INC., Defendant. ORDER GRANTING STAY Defendant has moved for a stay pending reexam. (D.I. 139). The motion has been briefed. It has also been argued. (D.I. 165). I postponed decision at oral argument. The reexam is inter partes, and involves two of the three patents at issue. The PTO has rejected all relevant independent claims, and issued a Right of Appeal Notice. (D.I. 167). Plaintiffhas been asked if it wants to proceed on its one unchallenged patent. It does not. I have considered the three-part test. Without going into great detail, simplification favors a stay. It appears reasonably likely that two of the three patents will go away, and, if they do not, invalidity challenges will be limited due to the binding effect of the inter partes reexam. The Markman decision on the two patents may never need to be issued. The status of discovery, and the existence of a trial date, favor denying the stay. Fact discovery has progressed, and there is a trial date, albeit not an imminent one, with expert discovery and case dispositive motions still to occur. Prejudice to the Plaintiff exists, as Plaintiff and Defendant are competitors, but I do not think it is undue. I do not think the motion for reexam and the motion for a stay were unnecessarily delayed. I also note that to the extent injunctive relief is important, Plaintiff is

Case 1:11-cv-00484-RGA-CJB Document 170 Filed 09/11/13 Page 2 of 2 PageID #: 2917

foregoing the opportunity to pursue its one unreexamined patent until a later time. I do not think Plaintiffhas shown that Defendant filed the motion to gain a tactical advantage. Defendant's counterclaims will proceed first, but that scheduling was already in place. Thus, the motion for stay pending reexam (D.I. 139) is GRANTED. The parties should submit a joint status report every six months. If Plaintiff decides it wants to proceed on its one unreexamined patent, it should make a written request to do so, and the stay will be lifted.

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