Can an Intervenor Cause Improper Venue?

by Dennis Crouch

In re Intex Recreation Corp., No. 18-131 (Fed. Cir. June 13, 2018) (denial of mandamus) [IntexMandamus]

Staff All over the world (TWW) sued Wal-Mart in E.D. Texas for infringing its U.S. Pat. Nos. 9,211,018, 7,346,950, and 7,246,394 (air mattress items).  Wal-Mart does not make the accused items but does provide them.  The makers (Intex, Coleman, and Bestway) are all contractually bound to indemnify Wal-Mart and intervened to protect their items. Following intervening the makers then demanded that the scenario be severed and transferred to their preferred districts (Intex to C.D. Cal Coleman to N.D. Unwell, and Bestway to Arizona). The district court docket refused — keeping that the makers experienced waived any objection to venue by intervening.

The Federal Circuit has now denied the manufacturers’ petition for writ of mandamus:

  1. No Have to have for Speed: Ordinarily appeals are only submitted adhering to a remaining judgment in a scenario. Writ of mandamus effectively lets for instant interlocutory appeals, but demands a petitioner to clearly show a require for instant determination.  Here, petitioners did not establish why immediacy is essential.  Rather, the court docket identified that the makers can simply wait around and address their inappropriate venue defense right after demo is comprehensive.
  2. Distinct and Indisputable Appropriate to Reduction: Neither the Federal Circuit nor the 5th Circuit have not spoken right as to whether “a get together that voluntarily enters a scenario by intervention may possibly raise a venue defense.” Nonetheless, some sum of parallel jurisprudence supports the district court docket determination.  “Given the considerable sum of authority supporting the district court’s determination, we cannot say that Petitioners’ entitlement to relief is crystal clear and indeniable.”

Petition denied.

Severing: A secondary element of the petition determination will involve the issue of joinder/severing underneath Portion 299 of the Patent Act.  The district court docket held that Portion 299 did not utilize listed here due to the fact the makers experienced not been joined alongside one another but instead voluntarily intervened (and the patentee in no way alleged infringement from the makers).  In its determination listed here denying mandamus the Federal Circuit observed that even if Portion 299 is inapplicable, the principles of civil technique provide a district court docket with authority to sever statements in order to greater ensure “fundamental fairness” or prevent prejudice. FRCP 21 See  In re EMC Corp., 677 F.3d 1351 (Fed. Cir. 2012).  So, though denying mandamus, the appellate panel has instructed the district court docket to “consider whether such concerns warrant severance for the reasons of adjudicating the merits of the scenario.”



Dennis Crouch

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