IP: Factors to consider when faced with multi-district patent litigation

New decisions from the Federal Circuit and the MDL panel may change how these lawsuits are handled

For many years, it has been routine for a patent plaintiff, particularly a non-practicing entity (NPE), to file one infringement suit against multiple defendants, in a jurisdiction he or she felt was more favorable. These types of suits typically asserted infringement of one or more patents by a diverse group of defendants who were using different apparatuses, systems, or processes. Occasionally, some of the defendants would seek to sever the action and transfer the severed cases to other venues. These approaches met with limited success.

The Federal Circuit and Congress address multi-defendant cases

MDL patent litigation decision points

All of this provides the backdrop to the application of the multidistrict litigation (MDL) provision found in 28 U.S.C. §1407(a). The statute provides that when “civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings.” Any such transfer is to be for the convenience of the parties and witnesses and to promote the just and efficient conduct of such actions.

Hints from the MDL panel on future patent litigation

Contributing Author

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Donald Rupert

Donald W. Rupert is a litigation partner at Marshall, Gerstein & Borun LLP.  For over 35 years, Don has litigated patent and other...

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