A Plaintiff Walks a Bunch of Defendants Into a Bar…

Have you heard the one about the multi–defendant patent case? The one where a single plaintiff sues dozens of unrelated companies for patent infringement together in the same case on the theory that being accused of infringing the same patent creates enough common issues of law and fact to bind those defendants together in a single lawsuit. Rumor had it that the America Invents Act was going to do away with that kind of case by making it clear that you can’t sue unrelated defendants together in the same case if all they have in common is that you think they’ve infringed your patent.

But the AIA didn’t take effect until September 16, 2011, and there is a backlog of cases filed before then that are still being played under the old rules. Until now, there has been a split of opinion about whether the old rules allowed you to join multiple unrelated defendants in one case by alleging that they all infringed the same patent. In an order issued today, the Federal Circuit appears to have resolved that split. Rejecting the standard applied by the lower court—that defendants could be joined together in the same case if they were accused of infringing the same patent using products or processes that were “not dramatically different” from one another—the Federal Circuit insisted on much more. First, “joinder is not appropriate where different products or processes are involved. Joinder of independent defendants is only appropriate where the accused products or processes are the same in respects relevant to the patent.” Second, “the sameness of the accused products or processes is not sufficient.” To join unrelated defendants in a single action, a patent–holder needs to show the use of the same products or processes and “shared, overlapping facts that give rise to each cause of action.…The sameness of the accused products is not enough to establish that claims of infringement arise from the ‘same transaction.’” That is, a plaintiff cannot join defendants using different accused products or processes, and can only join defendants using the same accused products or processes if there are other “shared, overlapping facts” common to those defendants.

Will that be the final word on this subject? Somehow we doubt it—from the courts, or us.