Select Retrieval, LLC v. Alice.com, Inc. et al

Filing 91

ORDER denying Motion to Transfer. Signed by Kathryn H. Vratil, Acting Chariman, Judicial Panel on Multidistrict Litigation. (arw)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: SELECT RETRIEVAL, LLC,
(‘617) PATENT LITIGATION

MDL No. 2377

ORDER DENYING TRANSFER

Before the Panel:* Pursuant to 28 U.S.C. § 1407, eighteen defendants in five actions seek
centralization in the Western District of Wisconsin. This litigation currently consists of nine actions,
pending in nine districts, listed on Schedule A.1
Seven defendants and patent holder Select Retrieval, LLC (Select Retrieval) support or do
not oppose the motion. Five defendants suggest centralization in the Northern District of Texas in
the first instance or in the alternative. Twenty-six defendants oppose centralization, and all but one
of these defendants, in the alternative, variously support centralization in the Northern District of
Texas or the District of Delaware.
Select Retrieval purports to be the owner of United States Patent No. 6,128,617 (the ‘617
patent), entitled “Data Display Software with Actions and Links Integrated with Information.” The
patent describes a method of retrieving and displaying information from a database record with plural
fields, or software instructions applying this method, including website features such as category and
feature based product searches. In each action before the Panel, Select Retrieval has alleged that each
defendant infringes the ‘617 patent through the creation, maintenance, design, or use of a specific,
or set of specific, website(s). Defendants are retailers, many of which have not developed their own
websites.
After considering the argument of counsel, the Panel is not persuaded that Section 1407
centralization would serve the convenience of the parties and witnesses or further the just and
efficient conduct of this litigation at this time. “Centralization of any litigation – including patent
cases – is not automatic, and will necessarily depend on the facts, parties, procedural history and

*

Judges John G. Heyburn II, Marjorie O. Rendell, and Charles R. Breyer did not participate
in the decision of this matter.
1

Two additional actions were included in the motion for centralization, but those actions have
since been dismissed. Additionally, the parties have notified the Panel of three related actions pending
in the Southern District of Florida.

-2other circumstances in a given litigation.” In re: Bear Creek Techs., Inc. (‘722) Patent Litig., 2012
WL 1523340, at *9 (J.P.M.L. May 2, 2012). Although all actions allege that defendants infringe the
‘617 patent, the litigation has not progressed to a point that the parties have determined the specific
nature of that alleged infringement or to what extent infringement allegations will be common to the
defendants across these actions. Indeed, at oral argument, counsel for patent holder Select Retrieval
stated that the only evidence of infringement the patent holder has so far relied upon is the websites
themselves. Proponents also have shown no evidence of common claims construction terms. Nor
has it been determined at this stage of the litigation whether defendants will assert common invalidity
arguments as to the ‘617 patent. Just before oral argument, it became known that some of the
defendants have used common technology in their websites and that a common license will be at
issue. It was unclear until recently how many defendants use this technology,2 and it remains unclear
whether other licensors will emerge or whether any defendants have developed their own websites.
Movants conceded at oral argument that the record is not fully developed on this point.
Parties seeking centralization have the burden of demonstrating the existence of common
questions of fact such that centralization will serve the convenience of the parties and witnesses and
promote the just and efficient conduct of the litigation. Since at this point in the litigation we do not
have the information upon which to make those determinations, centralization would be premature.
Based on the record before us, therefore, we cannot conclude that centralization is appropriate at this
time.
IT IS THEREFORE ORDERED that the motion, pursuant to 28 U.S.C. § 1407, for
centralization of these actions is denied.

2

After the Panel’s hearing, Oracle Corporation, owner of the license at issue, notified the Panel
that it appears from the docket sheets in these actions that 34 Oracle customers are using the
technology at issue in their websites. That this information has only recently emerged highlights that
the scope of this litigation is continuing to develop.

-3-

PANEL ON MULTIDISTRICT LITIGATION

_________________________________________
Kathryn H. Vratil
Acting Chairman
W. Royal Furgeson, Jr.
Paul J. Barbadoro

Barbara S. Jones

IN RE: SELECT RETRIEVAL, LLC,
(‘617) PATENT LITIGATION

MDL No. 2377

SCHEDULE A

Southern District of California
Select Retrieval, LLC v. American Apparel, LLC, et al., C.A. No. 3:11-02158
District of Delaware
Select Retrieval, LLC v. Amerimark Direct LLC, et al., C.A. No. 1:11-00812
Middle District of Florida
Select Retrieval, LLC v. Aqua Superstore, Inc., et al., C.A. No. 6:11-01348
Northern District of Illinois
Select Retrieval, LLC v. ABT Electronics, Inc., et al., C.A. No. 1:11-03752
District of Maine
Select Retrieval, LLC v. LL Bean, Inc., C.A. No. 2:12-00003
District of Massachusetts
Select Retrieval, LLC. v. Bulbs.com, Inc., C.A. No. 4:12-10389
District of Oregon
Select Retrieval, LLC v. Altrec, Inc., et al., C.A. No. 3:11-01104
Northern District of Texas
Select Retrieval, LLC v. Blinds, Inc., et al., C.A. No. 3:11-01166
Western District of Wisconsin
Select Retrieval, LLC v. Alice.com, Inc., et al., C.A. No. 3:11-00637