Atlas IP, LLC v. Medtronic, Inc., et al, 1-13-cv-23309 (FLSD March 17, 2014, Order) (Altonaga, J.)
Wednesday, March 19, 2014
“And/Or” Pleading Insufficient to Satisfy Joinder Requirements of 35 U.S.C. § 299
The court granted defendants' motion to dismiss for improper joinder where plaintiff alleged that "[t]he accused products are compliant with [two standards] and/or incorporate [two] chip sets for wireless communication, and/or incorporate [two] sets for wireless communication, and/or the equivalents of such chip sets.” "The Court is not persuaded [plaintiff's] pleading, with its deliberate use of the ambiguous words 'and/or,' satisfies [its] obligation under [35 U.S.C. § 299] of alleging the Defendants indeed make, use, import, offer to sell or sell the same allegedly infringing product or process. As noted by [movants], the Amended Complaint does not allege any commonality between any [movants'] accused product and any [other defendant's] accused product. And merely alleging the accused products have [the same] chip sets in them is insufficient to support joinder, as the incorporation of a common component into different accused products does not satisfy section 299’s requirement that the Defendants provide the same accused product or process."