Some Eastern District judges are beginning to issue orders in "serially filed cases" following Chief Judge Davis' lead in the PersonalWeb Technologies, LLC v. NEC Corp. of America, Inc., Cause No. 6:11cv655 directing parties to be prepared to discuss certain issues at forthcoming scheduling conferences. In pertinent part, here's what they are saying in some of the recent orders I have seen:
- Congress has recently addressed the issue of joinder in patent cases in section 19 of the Leahy-Smith America Invents Act, which was signed into law in September 2011. In 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 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:
- Other than common patents, what factors (and facts) can create common issues regarding infringement, both generally and specifically to the above-captioned cases;
- 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;
- 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;
- What effect, if any, do pending 1404(a) motions for transfer have, and when and how should they be determined;
- Absent consolidation, what other tools can the Court and/or parties use to promote judicial efficiency and alleviate the administrative difficulties on the Court?