Motion to Sever and Transfer Patent Infringement Claims Denied
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As we’ve noted before, more and more patentees are suing multiple defendants selling unrelated – and often competing – accused products. While most EDVA judges deny defense efforts to sever these cases into individual claims, others have granted severance and transferred the severed actions. In a recent decision, Judge Morgan joins the majority, denying a motion to sever as premature. Bel IP LLC v. Boomerangit Inc., Case No. 2:11CV188 (E.D.Va. Aug. 26, 2011) (Morgan, J.).
Bel IP sued ten different companies for infringement of its patent on a “traceable luggage and bag system.” One defendant, TRG, moved to sever the claims into individual cases – citing the lack of any common transaction or occurrence and the risk of juror confusion and prejudice.
Judge Morgan denied the motion because:
- No scheduling conference had been held or scheduling order had been entered;
- Claim construction proceedings had not begun;
- Discovery had just commenced, and so the extent to which the accused product differed was unknown;
- It was unclear whether the defendants would assume conflicting positions
The Court granted leave to TRG to renew its motion after discovery. At that late stage, though, it is doubtful that TRG would be able to obtain a transfer of venue. Thus, it looks like TRG is stuck in Virginia for trial, either alone or with the rest of the defendants.
