On July 5, 2012, Magistrate Judge Ramirez issued Findings, Conclusions, and Recommendation (available here) in the H-W Technology, L.C. v. Apple, Inc., et al. case.
In H-W Technology, H-W Technology sued 32 defendants claiming infringement of U.S. Patent No. 7,525,955.[1] Apple moved the Court to dismiss it from the action for improper joinder, or, in the alternative, sought to be severed from the other defendants and to have all proceedings against it transferred to the Northern District of Texas.
Judge Ramirez found that Apple, under In re EMC Corp., 677 F.3d 1351 (Fed. Cir. 2012), was not properly joined as a defendant, because H-W Technology did not allege that Apple acted in concert with or in conspiracy with any of the other defendants to infringe the patent in suit, or that the defendants otherwise controlled, directed, or contributed to each other’s conduct. The sameness of the accused products was not sufficient by itself to establish that claims of infringement arise from the same transaction or occurrence or series of transactions or occurrences. “Since the claims against each of the defendants are not based on shared overlapping facts, other than the fact that the accused products are allegedly technically similar and infringe the same patent, Apple’s joinder is improper under In re EMC Corp.”
Because Apple was misjoined, the Court could drop Apple from the case or sever H-W Technology’s claims against Apple. Judge Ramirez found it proper to sever Apple from the case against the remaining defendants.
Judge Ramirez then took up Apple’s motion to transfer, and found that it should be granted. H-W Technology was incorporated in Texas “only a year before filing this suit, and [has] its business address [at] a single family home in a residential neighborhood[.]” Nor was there any evidence that H-W Technology had any employees. The only individuals identified in H-W Technology’s initial disclosures who were from the Northern District of Texas were two Dallas attorneys having knowledge of the patent-in-suit’s prosecution and its acquisition by H-W Technology. Given this, and other evidence offered by Apple, Judge Ramirez found that Apple had made a “persuasive showing of inconvenience if the severed action against Apple is maintained in this district.” Judicial economy considerations (i.e., that there would now be two cases involving the same plaintiff and patent-in-suit) did not outweigh this showing. Accordingly, Judge Ramirez found that H-W Technology’s claims against Apple should be transferred to the Northern District of California.
[1] Present or former defendants include Apple, Research In Motion, HTC Corporation, Google, Expedia, Buy.com, Motorola, Samsung, Nokia, Sony Ericsson, Kyocera, and Verizon Wireless.
H-W Technology is represented by Winston Huff and Arthur Navarro, both of Navarro Huff PLLC.
Apple is represented by Kelly Hine and Thomas Walsh, IV, both of Fish & Richardson; and Arun Goel, Elizabeth Gillen, Harrison Frahn, IV, Jason Bussey, Jeffrey Danley, Jeffrey Ostrow, Noah Leibowitz, Patrick King, all of Simpson Thacher & Barlett LLP.
Research In Motion was represented by John Emerson, of Haynes & Boone LLP; and Craig Davis and Dominic Massa, both of Wilmer Cutler Pickering Hale & Dorr LLP.
Amazon and eBay are represented by Dan Davison, Brandy Nolan, George Jordan, Richard Zembek, all of Fulbright & Jaworski.
HTC Corporation is represented by Jerry Selinger and Susan Powley, both of Patterson & Sheridan LLP.
Google is represented by Craig Tyler, Robin Brewer, and Stefani Shanberg, all of Wilson Sonsini Goodrich & Rosati.
Expedia was represented by Neil McNabnay and David Conrad, both of Fish & Richardson.
Buy.com is represented by Herbert Hammond and Vishal Patel, both of Thompson & Knight.
Motorola is represented by Eric Findlay and Brian Craft, both of Findlay Craft; Leon Carter, of Carter Stafford Arnett Hamada & Mockler PLLC; William Munck, Jamil Alibhai, and Jane Neiswender, all of Munck Wilson Mandala, LLP; and John Keville and Michael Forbes, both of Winston & Strawn LLP.
Samsung is represented by Melissa Smith, of Gillam & Smith LLP; and Chang Kim, David Wille, Michael Barta, Neil Sirota, Robert Maier, and Yong Chen, all of Baker Botts LLP.
Nokia was represented by Jason Cook and Stacey White, all of Alston & Bird LLP.
Sony Ericsson was represented by John McDowell, Jr. and Benjamin Setnick, both of Andrews Kurth LLP.
Kyocera was represented by Daniel Conrad, Daniel O’Brien, David Maiorana, Jose Patino, and Nicola Pisano, all of Jones Day.
Verizon Wireless is represented by Thomas Farrell, Brian Riopelle, David Finkelson, Derek Swanson, all of McGuireWoods LLP.