In Vehicle IP v. AT&T Mobility LLC, et al., C.A. No. 09-1007-LPS (D. Del. Oct. 20, 2016) (unsealed Oct. 27, 2016), Chief Judge Leonard P. Stark granted-in-part the Defendants’ motion to sever their cases, concluding that joinder under Rule 20 was impermissible as to infringement and damages, and denying the motion with respect to invalidity.
Plaintiff had accused the two groups of defendants, who were competitors of each other, of infringement by different products, but Plaintiff argued that joinder was proper under Rule 20 because the Defendants “advance largely identical arguments on all the key issues in the case . . . ; the allegedly infringing acts occurred during the same time period . . . ; Defendants used identically-sourced components in their respective products . . . ; and Defendants used similar development and manufacturing methods[.]” Id. at 3.
As to infringement, the Court observed that the infringement analysis would differ between the two defendant groups, and that they had engaged different infringement experts. Id. at 4. Severance was proper even if the accused products were the same in relevant respects: Plaintiff “has not argued that there was any relationship between the [defendant groups]; in fact, they are direct competitors, which weighs heavily against joinder. Other factors weighing against joinder include that there is no assertion [Plaintiff] of licensing or technology agreements between the [defendant groups], and that there is no claim for lost profits. Although there is some similarity in the development and manufacturing of the accused products and some components (such as cell phones) come from the same sources, those overlaps are due to the fact that the accused products are cell phone applications, and these components are not part of the infringement dispute. While both groups of Defendants are accused of infringing during the same time period, this factor does not outweigh the other considerations weighing in favor of severance.” Id. Furthermore, in light of Defendants’ argument that consolidation under Rule 42 would be prejudicial due to the high likelihood of jury confusion, the Court granted the motion to sever with respect to infringement and damages. Id. at 5.
The Court denied the motion with respect to invalidity. “[T]he calculus [was] different,” as “Defendants have all retained the same invalidity expert and rely on identical invalidity arguments; it is in the interest of judicial economy to consolidate the invalidity trial. Further, although [one of the defendant groups] identify some invalidity-related evidence that may also be relevant to their defense for infringement, Defendants have not identified any real prejudice arising from consolidation on the invalidity issue.” Id. at 5.