Unified Messaging Sols., LLC v. United Online, Inc., MDL No. 2371, Slip Op. (N.D. Ill. May 3, 2013) (Lefkow, J.).
Judge Lefkow denied defendants’ United Online, Juno Online Services, Netzero and Memory Lane (collectively “UOL Defendants”) motion to deconsolidate their case from this earlier consolidated patent litigation. The Judicial Panel for Multidistrict Litigation transferred the earlier filed cases to the Court for pre-trial proceedings and ordered that any “tag-along actions” be transferred to the Court. The Court then entered an order providing that any future tag-along actions would be consolidated for pre-trial purposes. The Court also entered a scheduling order which required the consolidated defendants to file certain papers jointly, but providing them enlarged limits for those filings.
Being required to file a joint claim construction brief, particularly with the increased page limits, did not violate the UOL Defendants’ due process rights. The defendants were given increased page limits to assure they had sufficient space to make any necessary arguments. Additionally, the UOL Defendants had not even yet been included in the earlier created schedule.
Additionally, the joint briefing and claim construction hearing did not violate the UOL Defendants’ rights to brief unique issues concerning their respective accused technologies. Claim construction focuses upon the intrinsic evidence surrounding the patents, not the accused technologies.
While the JPML did not require pre-trial consolidation, Fed. R. Civ. P. 42 allowed the Court to consolidate the actions based upon their common questions of law and fact. And by returning each case to its home district for trial, many of the UOL Defendants’ concerned are minimized. The fact that the Court ordered consolidation of tag-along actions before the case against the UOL Defendants was filed was irrelevant.
Finally, pre-trial consolidation did not violate the AIA’s anti-joinder provision, 35 U.S.C. § 299, as the JPML had already held.