OANDA is escalating its legal battle against Gain Capital again after a US Patent and Trademark Office tribunal refused the latter’s request to review the two patents it has been accused of infringing.
The Canadian-based brokerage is filing a motion to the US court hearing the case of patent infringement allegations in order to dismiss claims made by Gain Capital for a stay order.
OANDA asked the court to proceed with a federal case discovery as quickly as possible by countering Gain’s defense attempt to delay it.
“OANDA refers the Court to its explanation in that Statement as to why Defendants have not shown ‘good cause’ under Rule 26(c) to depart from the general rule that discovery may proceed while a motion to dismiss is pending,” the broker said.
The so-called Rule 26(f) conference allows both parties to discuss discovery-related topics, but its consequences for the loser can lead to legal headaches, costly remedies and possible sanctions.
OANDA is pressing ahead with litigation procedures after the Patent Trial and Appeal Board denied Gain Capital’s request to hear its argument that the patents’ claims are directed to nothing more than an abstract idea.
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In the latest motion filed by OANDA on March 22, the company’s attorneys argued that GAIN has not even committed to filing a motion for reconsideration and that the denial of the CBM petitions “removes the main factual predicate for their motion to stay.”
“What Defendants are asking in their March 21, 2021 letter is that the Court stay the case based on the remote possibility that the PTAB will grant a yet-to-be-filed motion for reconsideration, an argument that the motion on file does not make, and that is baseless in any event,” OANDA added.
In October 2020, Gain claimed that there was plenty of evidence to refute the plaintiff’s claims to justify the denial of its request to suspend the case proceedings.
For its part, Gain Capital wanted the court to consider a covered business method (CBM) review which provides a means to challenge the validity of an issued patent. In addition, the company claimed that OANDA cannot dispute that the denial of institution of a CBM petition is a rare occurrence and that the PTAB only denied institution for 95 petitions since 2012.
Legal Battle Continues
As Gain has been sued with infringement, the firm can file a petition for CBM review provided that the incident can be directed to a covered business method patent. A CBM review is not automatically kicked off, still, it has been a powerful tool for accused infringers wanting to challenge the validity of a patent.
As such, GAIN believed that if the petitions were instituted, there is a ‘90%+ likelihood of unpatentability’, which could result in invalidating at least some or all of the challenged claims.
Let us recall that OANDA filed the lawsuit in 2020 alleging that GAIN has infringed upon two patented technologies. As per the statement in its complaint, OANDA claims that: “Defendants have infringed one or more claims of the ʼ336 Patent by making, using, selling, offering for sale or selling products and/or services that meet each of the limitations of one or more claims of the ʼ336 Patent.”