Wireless Recognition Technologies LLC v. A9.com, Inc. et al
Filing
114
SUR-REPLY to Reply to Response to Motion re 94 MOTION to Consolidate Cases filed by A9.com, Inc., Amazon.com, Inc., Google, Inc.,, Nokia, Inc., Ricoh Innovations, Inc.. (Attachments: # 1 Exhibit D, # 2 Exhibit E, # 3 Exhibit F, # 4 Exhibit G, # 5 Exhibit H, # 6 Exhibit I)(Smith, Michael)
EXHIBIT H
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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FINISAR CORPORATION, a Delaware
corporation,
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For the Northern District of California
United States District Court
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No. C 10-00032 WHA
Plaintiff,
v.
SOURCE PHOTONICS, INC., a Delaware
corporation, MRV COMMUNICATIONS,
a Delaward corporation, NEOPHOTONICS
CORPORATION, a Delaware corporation,
and OPLINK COMMUNICATIONS INC.,
a Delaware corporation,
ORDER SEVERING PARTIES
DUE TO MISJOINDER AND
DISMISSING ALL BUT THE
FIRST NAMED DEFENDANT
Defendants.
/
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The parties are well aware of the misjoinder issues addressed by this order. In brief,
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plaintiff has asserted eleven patents in this action (Dkt. No. 1). These eleven patents cover 694
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claims, of which plaintiff plans to assert “somewhere around 50” (Dkt. No. 46 at 7). At the
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receiving end of this undifferentiated assault are four separate unrelated corporations, each with
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its own separate unrelated set of accused products. While these products — according to
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plaintiff’s counsel — allegedly “perform in the same way as it relates to the infringing
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technology,” counsel nevertheless admitted at the recent April 14 case management conference
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that “the accused infringing devices are different” (id. at 17–18). No conspiracy is alleged. No
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joint action is alleged. No common transaction or occurrence is alleged. Even crediting
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plaintiff’s argument that this dispute involves an industry standard that supposedly reads on the
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patents-in-suit, this does not entitle plaintiff to improperly circumvent filing fees and bring a
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single massive civil action against any entity that manufactures products using that standard.
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For each of the hundreds of accused products, the all-elements rule for infringement must still be
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applied. The burden such a maneuver would place on a single judge — who would get credit for
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only one civil action under our assignment system — would be erroneous.*
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This case exemplifies such a maneuver by counsel. Plaintiff essentially filed a single
the truth of this statement (ibid.). Since defendants are not accused of conspiring with each other,
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the thin thread tying these four defendants together is the mere allegation that their respective
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products practice a particular industry standard (id. at 17). Counsel’s memorandum addressing
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For the Northern District of California
action against four separate entities that manufacture different products. Counsel freely admits
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United States District Court
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the Court’s concerns does not shy away from this theory of joinder — rather, it embraces it (see
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Dkt. No. 49 at 1). Finally, since plaintiff has generally asserted all eleven patents against
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defendants as a group, it is impossible to figure out which individual patents are specific to each
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defendant, much less which claims.
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Normally, this should have been four separate lawsuits, one against each named
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defendant. FRCP 21 provides that “[p]arties may be dropped or added by order of the court on
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motion of any party or of its own initiative at any stage of the action and on such terms as are
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just.” For the reasons mentioned in this order and at the April 14 case management conference,
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all defendants except Source Photonics, Inc. are DISMISSED WITHOUT PREJUDICE. This
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dismissal is without prejudice to plaintiff filing a motion to relate any newly filed action to this
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first-filed case. The severing of these defendants is also without prejudice to the possible
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coordination (perhaps as to the defenses of invalidity and/or inequitable conduct) of the separate
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proceedings if warranted by considerations of judicial economy, such as if the same claims are in
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play against various defendants and the theories of invalidity, if raised, are the same.
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* The eleven patents and 694 claims do not even take into account the four patents
injected into this controversy by defendants’ counterclaims.
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Finally, plaintiff’s pending motion to dismiss defendants’ counterclaims will remain on
calendar, but will be limited to those counterclaims asserted by the remaining defendant.
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IT IS SO ORDERED.
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Dated: May 5, 2010.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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For the Northern District of California
United States District Court
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