In re EMC Corp.

The Federal Circuit recently addressed whether it is proper to join multiple defendants within a single action for no other reason than each defendant is accused of infringing the same patent. In re EMC Corp., Misc. Dkt. No. 100 (Fed. Cir. May 4, 2012) (Dyk J.). The case arose within the context of mandamus relief sought by eight defendants joined in the same patent case in the Eastern District of Texas, after the district court barred those defendants from severing or transferring their claims. The defendants' petition for a writ of mandamus was filed before enactment of the new non-joinder provision under the Leahy-Smith America Invents Act, Pub. L. No. 112-29, sec. 19(d), ' 299, 125 Stat. 284 (2011) (to be codified at 35 U.S.C. ' 299) (“AIA”). For this reason, the Federal Circuit expressly warned that its decision on the defendants' writ was not an interpretation of the AIA. Nevertheless, the court's reasoning in the course of granting the defendants' writ suggests that the Federal Circuit may have been foreshadowing how it will interpret the AIA's new non-joinder provision when faced with the opportunity in the future to do so.