In connection with the against GAIN Capital, OANDA Corporation has filed a motion dismissing several claims made by the defendant for a stay order.
In the latest motion filed by OANDA on October 14, OANDA’s attorneys argued that “GAIN tries to salvage its motion by submitting new evidence in reply.”
OANDA filed a patent infringement lawsuit against earlier this year for violating its patented technologies, namely, US Patent Nos. 7,146,336 (“the ’366 patent”) and 8,392,311 (“the ’311 patent”).
“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,” claimed in the initial filing.
GAIN Seeks Stay Order
GAIN later filed covered business method (CBM) petitions on September 14 and 15 against OANDA’s initial claims, asking the court to stay the proceedings.
“…the most likely outcome (80% likelihood) is that some or all of the asserted claims [in OANDA’s patents] will be found unpatentable,” the defendant pointed out.
GAIN also questioned the timing of the lawsuit, highlighting that it was filed seven years after the grant of the last Asserted Patent. Additionally, OANDA warned GAIN about any possible patent infringements but moved to the court after 18 months.
“…had OANDA filed a complaint properly identifying at least one accused product (which it completely failed to do) or promptly amended its complaint, this case might be further along. Thus, OANDA has no one but itself to blame for any delays,” GAIN wrote.
Fighting Back and Forth
Now, OANDA is squashing all claims and statistics provided by GAIN to receive a stay order from the court.
“Realizing that the statistics it provided to the Court in its motion did not actually help its argument, GAIN now improperly submits with its reply brief some additional statistics,” OANDA’s motion noted. “Submitting new evidence with a reply brief is improper.”
“As explained in that sur-reply, GAIN’s use of these additional statistics is misleading, and provides no basis to determine that a stay of these proceedings is warranted.”