`
` Neutral
`As of: June 5, 2020 10:32 PM Z
`Huvepharma EOOD v. Associated British Foods, PLC
`United States District Court for the District of Delaware
`August 12, 2019, Decided; August 13, 2019, Filed
`Civil Action No. 18-129-RGA
`
`
`Reporter
`2019 U.S. Dist. LEXIS 139034 *; 2019 WL 3802472
`
`HUVEPHARMA EOOD and HUVEPHARMA, INC.,
`Plaintiffs, v. ASSOCIATED BRITISH FOODS, PLC, AB
`VISTA, INC., PGP INTERNATIONAL CORPORATION,
`ABITEC CORPORATION, AB ENZYMES, INC., and AB
`ENZYMES GMBH, Defendants,
`
`
`
`Prior History: Huvepharma EOOD v. Associated British
`Foods, PLC, 2019 U.S. Dist. LEXIS 103832 (D. Del.,
`June 21, 2019)
`
`
`
`Counsel: [*1] For Huvepharma EOOD, Huvepharma,
`Inc., Plaintiffs: Jack B. Blumenfeld, LEAD ATTORNEY,
`Jeremy A. Tigan, Morris, Nichols, Arsht & Tunnell LLP,
`Wilmington, DE; Carolyn M. Pirraglia, PRO HAC VICE;
`Jennifer C. Tempesta, PRO HAC VICE; Michael E.
`Knierim, PRO HAC VICE; Richard E. Parke, PRO HAC
`VICE; Robert L. Maier, PRO HAC VICE; Ryan E.
`Dowell, PRO HAC VICE; Yi Han, PRO HAC VICE.
`
`For Associated British Foods, plc, AB Vista, Inc., PGP
`International Corporation, ABITEC Corporation, AB
`Enzymes, Inc., AB Enzymes GmbH, Defendants: John
`C. Phillips, Jr., LEAD ATTORNEY, David A. Bilson,
`Phillips, Goldman, McLaughlin & Hall, P.A., Wilmington,
`DE; Claire A. Fundakowski, PRO HAC VICE; Kurt A.
`Mathas, PRO HAC VICE; Noorossadat Torabi, PRO
`HAC VICE.
`
`
`
`Judges: Richard G. Andrews, United States District
`Judge.
`
`
`
`
`
`
`Opinion by: Richard G. Andrews
`
`
`Opinion
`
`
`MEMORANDUM ORDER
`
`Plaintiffs filed this lawsuit near the beginning of 2018.
`Plaintiffs allege infringement of six now-expired patents.
`Trial is set for June 1, 2020. The PTAB instituted IPRs
`on the 44 asserted claims (and some unasserted ones)
`on July 25, 2019. Decisions are likely on or about July
`23, 2020. I gather document discovery is substantially
`complete and that fact depositions will [*2] be starting
`imminently. I had a Markman hearing and issued a
`Markman ruling. Defendants requested to stay the suit
`pending the IPRs, and the parties have been heard on
`the issue. (D.I. 96, 97, 99, 100).
`
`Plaintiffs and Defendants are competitors, but, as the
`patents are expired, the only advantage Plaintiffs can
`gain from litigation is damages.
`
`The standard for granting a stay involves consideration
`of three factors:
`
`(1) whether granting the stay will simplify the issues for
`trial;
`
`(2) whether discovery is complete and a trial date is set;
`and
`
`(3) whether granting a stay would cause the non-moving
`party to suffer undue prejudice from any delay, or a
`clear tactical disadvantage.
`
`NANOCELLECT - EXHIBIT 1052
`NANOCELLECT BIOMEDICAL, INC v. CYTONOME/ST, LLC
`IPR2020-00545, -00546, -00547, -00548, -00549, -00550, & -00551
`
`

`

`Page 2 of 2
`
`Huvepharma EOOD v. Associated British Foods, PLC
`/s/ Richard G. Andrews
`United States District Judge
`
`
`
`End of Document
`
`The pending IPRs will simplify the issues by, at a
`minimum, removing some or all anticipation and
`obviousness issues from trial due to the estoppel
`provisions relating
`to an
`IPR. Of course, at
`the
`maximum, all asserted claims will be found invalid, and
`the case will be over. More likely, some claims will be
`invalidated, and others will not. In any event, the only
`question is not whether the IPR results will simplify the
`trial, but what the extent of simplification will be. The first
`factor thus strongly supports granting [*3] the stay.
`
`Discovery is in progress, and there is a trial date. Given
`the amount of discovery that remains, including all
`expert discovery, the second factor does not strongly
`favor either side.
`
`Although the parties are competitors, Plaintiffs seek only
`monetary damages. It does not appear that Plaintiffs will
`suffer any undue prejudice if the motion is granted, as
`pre-judgment interest generally appears to compensate
`for any delay in obtaining damages. Both sides will
`benefit to the extent the IPRs simplify the case (and
`therefore lower their litigation costs), and, of course,
`should the IPRs resolve the case, the benefit will be
`significant. Plaintiffs contemplate having anticipation
`and obviousness tried twice, whereas a stay will mean
`that those issues will only be tried once. Plaintiffs do not
`argue in their submissions that there are sources for an
`anticipation or obviousness argument that would avoid
`the estoppel effect of the IPRs on any claims that
`survive. Plaintiffs primary argument is that Defendants
`waited too long to file the IPRs. I agree that Plaintiffs
`could have filed sooner, but I do not think that any
`unnecessary delay (which may be somewhat related to
`the unsuccessful [*4] attempt at early mediation)
`suggests an attempt to gain a "tactical advantage."
`Thus, I do not see the third factor as weighing in favor of
`denying the stay.
`
`Considering all the circumstances, this case seems to
`be an easy case for granting a stay pending IPR.
`
`Thus, IT IS HEREBY ORDERED this 12 day of August
`2019 that:
`
`1. The request to stay litigation pending resolution of the
`IPRs (D.I. 96) is GRANTED;
`
`2. The parties shall submit a status report no later than
`August 3, 2020; and
`
`3. The stay shall remain in effect until lifted by Court
`Order. The parties should promptly advise the Court if
`and when the stay should be lifted.
`
`
`
`
`
`