Wednesday, May 4, 2011

Interval v. AOL, Apple et al.: Break It Up

Joinder based just upon infringement of the same patent found to be improper.

Paul Allen's Interval Licensing, LLC patent suit against AOL, Apple, eBay, Facebook, Google, Netflix, Office Depot, OfficeMax, Staples, Yahoo!, and Youtube will now be handled, to some extent, as eleven separate cases.

Interval Licensing had asserted that the complaints could be handled as one case since the allege that all of the parties infringe the same patent.  On April 29, Judge Marsha J. Pechman disagreed:

There is no binding Ninth Circuit authority on when joinder is appropriate in a patent case where the plaintiff sues divergent defendants for infringing the same patent. District courts in the Ninth Circuit that have considered such cases largely find joinder inappropriate.


It is difficult to find joinder proper when the only shared facts alleged against multiple defendants is that each infringed the same patent.


Based on an application of the relevant Ninth Circuit law and the guidance of other district courts, the Court finds joinder improper. Plaintiff has not alleged that the Defendants have engaged in the same transaction or occurrence or series of transactions or occurrences. Rather, Defendants are accused of infringing the patents in similar ways, but not as part of the same transaction or occurrence or series of transactions or occurrences. Each Defendant operates differently and offers products that often compete with those of other Defendants. Joinder is thus improper under Rule 20(a). The Court therefore GRANTS the request to sever, but not does not find dismissal the proper remedy. The Court therefore SEVERS all of the Defendants from the single action and assigns each case against each defendant a separate case number, as explained below.

This is the second odd procedural stumble for Interval.  The case was previously re-filed to meet Judge Pechman's requirement for more specific allegations.  Remember, though, Paul Allen comes from Microsoft.  It often takes three releases to come up with something usable.

The pretrial proceedings will still be handled under a consolidated lead case, and the court left open how the actual trials will be handled.  The caption for the newly severed case against Apple is: INTERVAL LICENSING LLC, Plaintiff, v. APPLE, INC., Defendant. CASE NO. C11-708 MJP LEAD CASE NO. C10-1385 MJP.

[via DocketNavigator, court order]


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