Monday, June 25, 2012

Parties in Twelve “Serially” Filed Cases Ordered to Submit Comprehensive Briefing on Consolidation and Other Tools to Alleviate “Administrative Difficulties” Created by New Joinder Provision of AIA (35 U.S.C. § 299)

The court instructed the parties in 12 cases filed by the same plaintiff to be prepared to discuss at the Scheduling Conference (and to address in their Joint Case Management Statements) possible consolidation and other tools to alleviate the "administrative difficulties" caused by the new joinder provisions of the Leahy-Smith America Invents Act (to be codified at 35 U.S.C. § 299). "[I]n light of the new joinder provision . . . the Court has experienced an increase in 'serially' filed cases, i.e., separate cases involving the same patent(s) filed near in time naming different individual defendants. Such cases present administrative difficulties for the Court, and the above-captioned case(s) is such a case. As the Court considers how to most efficiently handle these cases, the parties should be prepared to provide input at the combined scheduling conference regarding, at a minimum, the following issues: (1) other than common patents, what factors (and facts) can create common issues regarding infringement, both generally and specifically to the above-captioned cases; (2) is consolidation for pretrial under Federal Rule of Civil Procedure 42 a viable and efficient means of alleviating the administrative difficulties of serially filed cases on the Court while still serving the interests of the parties; (3) if the Court consolidates such cases for pretrial, how should the individual trials be structured, e.g., validity trial with all defendants, followed by separate infringement trials; (4) what effect, if any, do pending 1404(a) motions for transfer have, and when and how should they be determined; (5) absent consolidation, what other tools can the Court and/or parties use to promote judicial efficiency and alleviate the administrative difficulties on the Court; and (6) whether these cases should proceed with the combined claim construction hearing already scheduled . . . or at a later date."

TQP Development, LLC v., Inc., 2-12-cv-00054 (TXED June 21, 2012, Order) (Craven, M.J.).

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