Opinion
Civil Action No. 12-cv-01096-REB-CBX
05-03-2013
POTTER VOICE TECHNOLOGIES LLC, Plaintiff, v. GOOGLE, INC., HTC AMERICA, INC., SONY MOBILE COMMUNICATIONS AB, LG ELECTRONICS MOBILECOMM U.S.A., INC., MOTOROLA MOBILITY, LLC., ZTE (USA) INC., KYOCERA INTERNATIONAL, INC., SHARP CORPORATION, SHARP ELECTRONICS CORPORATION, HUAWEI DEVICE USA, INC., PANTECH WIRELESS, INC., RESEARCH IN MOTION LIMITED, RESEARCH IN MOTION CORPORATION, MICROSOFT CORPORATION, and NOKIA, INC., Defendants.
Judge Robert E. Blackburn
ORDER GRANTING MOTION TO SEVER
Blackburn, J.
This matter is before me on the Unopposed Motion To Sever by Defendants Research In Motion Corporation and Research In Motion Limited [#347] filed May 2, 2013. I grant the motion.
"[#347]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's case management and electronic case filing system (CM/ECF). I use this convention throughout this order.
I. JURISDICTION
This is an action for patent infringement arising under the Patent Act, 35 U.S.C. §§101 et seq. This court has jurisdiction over the plaintiff's claims under 28 U.S.C. §§1331 and 1338(a).
II. STANDARD OF REVIEW
Title 35 U.S.C. § 299 controls joinder of parties in a civil action arising under any Act of Congress relating to patents. Section 299 provides:
(a) Joinder of accused infringers.--With respect to any civil action arising under any Act of Congress relating to patents, other than an action or trial in which an act of infringement under section 271(e)(2) has been pled, parties that are accused infringers may be joined in one action as defendants or counterclaim defendants, or have their actions consolidated for trial,or counterclaim defendants2 only if-
(1) any right to relief is asserted against the parties jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences relating to the making, using, importing into the United States, offering for sale, or selling of the same accused product or process; and(b) Allegations insufficient for joinder.--For purposes of this subsection, accused infringers may not be joined in one action as defendants or counterclaim defendants, or have their actions consolidated for trial, based solely on allegations that they each have infringed the patent or patents in suit.
(2) questions of fact common to all defendants or counterclaim defendants will arise in the action.
(c) Waiver.--A party that is an accused infringer may waive the limitations set forth in this section with respect to that party.
The excised words were removed from the section by PL 112-274, effective January 14, 2013, 126 Stat 2456.
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III. ANALYSIS
On March 29, 2013, addressing motions to sever filed by several other defendants, I entered an order granting the motions to sever. Order Granting Motions To Sever [#319] filed March 29, 2013. The analysis articulated in my March 29, 2013, order applies equally to the claims asserted against the moving defendants, Research In Motion Corporation and Research In Motion Limited (the Research In Motion defendants). The allegations of the plaintiff, Potter Voice Technologies LLC, against the Research In Motion Defendants do not concern the same transaction or occurrence at issue in Potter's claims against the other defendants. Further, Potter's allegations against the Research In Motion Defendants concerning use of Google Voice Search and BlackBerry Voice Commands software on devices made by the Research In Motion defendants do not concern the same accused product or process at issue in Potter's claims against the other defendants.
Under 35 U.S.C. § 299, joinder of Potter's claims against the Research In Motion defendants with Potter's claims against the other defendants is not proper. Thus, the unopposed motion to sever the Research In Motion defendants should be granted.
THEREFORE, IT IS ORDERED as follows:
1. That the Unopposed Motion To Sever by Defendants Research In Motion Corporation and Research In Motion Limited [#347] filed May 2, 2013, is GRANTED;
2. That under 35 U.S.C. § 299 and FED. R. CIV. P. 21, the claims of plaintiff, Potter Voice Technologies LLC, against defendants, Research In Motion Corporation and Research In Motion Limited, are SEVERED; and
3. That the claims of the plaintiff against defendants, Research In Motion Corporation and Research In Motion Limited, SHALL BE TRIED separately.
Dated May 3, 2013, at Denver, Colorado.
BY THE COURT:
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Robert E. Blackburn
United States District Judge