In Virtualagility Inc. v. Salesforce.com, Inc., [2014-1232] (July 20. 2014), the Federal Circuit reversed the district court’s denial of a stay of an infringement suit pursuant to AIA § 18(b)(1) pending disposition of a covered business method review of the patent in suit.

The Federal Circuit had jurisdiction of the stay pursuan to AIA § 18(b)(2).  The statute sets forth four points for the district court to consider in deciding whether to stay the litigation:

(A) whether a stay, or the denial thereof, will simplify the issues in question and streamline the trial;

(B) whether discovery is complete and whether a trial date has been set;

(C) whether a stay, or the denial thereof, would unduly prejudice the nonmoving party or present a clear tactical advantage for the moving party; and

(D) whether a stay, or the denial thereof, will reduce the burden of litigation on the parties and on the court.

The statute further provides that the Federal Circuit “shall review the district court’s decision to ensure consistent application of established precedent, and such review may be de novo.” The Federal Circuit declined to decided what standard of review it would apply, finding that under any standard the district court’s denial of stay must be reversed.

The district court questioned whether the petitioner was likely to succeed, but the Federal Circuit said that a challenge to the PTAB’s “more likely than not” determination at this stage amounted to an improper collateral attack on the PTAB’s decision to institute CBM review that would create serious practical problems.