Immediately after Congress passed the patent-reform bill
known as the America Invents Act, a strange thing happened. The
Eastern District of Texas, that reputed haven of patent trolls,
saw a sudden flood of complaints naming multiple defendants for
infringing the same patent in a multitude of different
products. Tech company defenders quickly figured out why: The
new patent law barred those sprawling, multi-defendant suits,
so patent holders were rushing to get their complaints filed
before President Obama's signature enacted the law. As I
reported, one tech company, EMC, was named a defendant in three new multi-defendant suits in the days between the law's passage
and the president's signature.
A patent holder called Klausner Technologies, however, is
apparently not worried about the law. On Tuesday, Klausner's
lawyers at Stroock & Stroock & Lavan filed a complaint in
federal court in Tyler, Texas, accusing Oracle,
Hewlett-Packard, and 28 other tech companies of infringing its
patent on linking telephone answering recordings with a display
of related data.
On its face, the complaint seems to flout the new law's
provision that "accused infringers may not be joined in one
action as defendants or counterclaim defendants, or have their
actions consolidated for trial, based solely on allegations
that they each have infringed the patent or patents in suit."
Under the AIA, patent holders can sue multiple defendants in
the same case only if all of the defendants contributed to a
single allegedly infringing product or process and if
"questions of fact common to all defendants or counterclaim
defendants will arise in the action."
Klausner and its Stroock lawyers certainly don't allege
that all of the 30 defendants in Klausner's complaint
contributed to the same product or process; the suit explicitly
refers to multiple products. "Defendants each provide a Voice
over Internet Protocol messaging service having some common or
similar visual voicemail capabilities as those of other
defendants," the complaint asserted.
But because the allegedly infringing products are similar,
Klausner said it's justified in naming all of the defendants in
a single suit. "There are questions of fact common to all
defendants and joinder is appropriate," the complaint said.
"The claims against all defendants similarly involve common
questions of fact which relate to the infringement and/or
validity due to the fact that it is the same patent being
asserted against all defendants."
Klausner counsel Pierre Yanney of Stroock told me his
client was aware of the AIA's bar on multi-defendant suits. He
declined to answer additional questions.
But a Gibson, Dunn & Crutcher partner who recently filed an amicus brief at the U.S. Court of Appeals for the Federal Circuit protesting multi-defendant patent suits told me the
Klausner complaint "seems to be exactly the type of litigation
tactic that Congress sought to prohibit" with the new law. "It
would be impossible for plaintiffs to argue with a straight
face that Congress intended a case like this to be subject to
joinder," said Matthew McGill.
In fact, McGill said, if the Klausner case goes forward
against all 30 defendants at once -- including such bitter
competitors as Oracle and H-P -- it will mean that the
patent-reform provisions barring most multi-defendant suits are
essentially toothless. I'll keep an eye on what the defendants
have to say about Klausner's gambit.
(Reporting by Alison Frankel)
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