Last week, the Federal Circuit addressed the pre-America Invents Act (“AIA”) standard for joinder in patent cases. In In re EMC Corporation, the Federal Circuit held that: (1) mandamus is an available remedy for a district court’s refusal to sever; (2) joinder requires more than the assertion of a common patent against similarly situated defendants; and (3) MDL procedures and consolidation under Federal Rule of Civil Procedure 42 are still available even if joinder is improper. The decision could break up many multi-defendant cases pending in various jurisdictions across the country, forcing plaintiffs to make difficult decisions as to which companies to continue to litigate against and in what jurisdictions.

CASE BACKGROUND

Plaintiff Oasis Research, LLC (“Oasis”) sued 18 defendants for patent infringement in the Eastern District of Texas. The patents-in-suit related to methods for data storage, and Oasis alleged that all 18 defendants offered “services that provide online backup and storage for home or business computer users.”