B. Cases After MyMail
III. Post-AIA Period 165
A. Resistance
Even after the enactment of § 299, the Eastern District of Texas insisted on its traditional minority view consecutively in MicroUnity Systems Engineering, Inc.
v. Acer Inc.,107Ganas, LLC v. Sabre Holdings Corp.,108Imperium (IP) Holdings, Inc.
v. Apple Inc.,109and Lodsys, LLC v. Brother International Corp.,110all of which are decisions prior to EMC. In Ganas and Apple, the court specifically stated that § 299 is not applicable because the cases were initiated prior to the effective date of § 299.111Because Congress was unable to consider those cases, it is necessary to examine their legal validity under § 299.
In MicroUnity, the court began to develop a “logical relationship” stan-dard.112 Specifically, the court addressed the requirement of “series of
trans-103Id. at *2.
104See Oasis I, No. 4:10–CV–435, 2011 WL 3099885, at *1 (E.D. Tex. May 23, 2011).
105See id. at *2.
106Id. (emphasis added). Oasis I interpreted Eolas as a case affirmed by In re Google Inc., 412 F. App’x 295 (Fed.
Cir. 2011). See Oasis I, 2011 WL 3099885, at *3. The Federal Circuit upheld the joinder because it recognized that
“[c]ourts have consistently held that judicial economy plays a paramount role in trying to maintain an orderly, effective, administration of justice and having one trial court decide all of these claims clearly furthers that ob-jective.” Google, 412 F. App’x at 296. The Federal Circuit also considered the question before the district court as what “will involve substantially overlapping questions of law or fact.” Id. While Congress has not mentioned the legal validity of Google, it is clear that Google is not good law because Congress has ruled out Eolas. See H.R.
Rep. No. 112-98, pt.1, at 55 n 61 (2011).
107MicroUnity Sys. Eng’g, Inc. v. Acer Inc., Nos. 2:10–CV–91–TJW–CE, 2:10–CV–185–TJW–CE, 2011 WL 4591917 (E.D. Tex. Sept. 30, 2011).
108Ganas, LLC v. Sabre Holdings Corp., No. 2:10–CV–320–DF, 2011 WL 8183246 (E.D. Tex. Oct. 19, 2011).
109Imperium (IP) Holdings, Inc. v. Apple Inc., No. 4:11–CV–163, 2012 WL 461775 (E.D. Tex. Jan. 20, 2012).
110Lodsys, LLC v. Brother Int’l Corp., No. 2:11–cv–90–JRG, 2012 WL 760729 (E.D. Tex. Mar. 8, 2012).
111See, e.g., Ganas, 2011 WL 8183246, at *8; Apple, 2012 WL 461775, at *3 n.3.
112See MicroUnity Sys. Eng’g, 2011 WL 4591917, at *3.
actions or occurrences,”113and held that the requirement is satisfied “if there is some connection or logical relationship between the various transactions or occurrences.”114Moreover, the court held that “[a] logical relationship exists if there is some nucleus of operative facts or law.”115
The patents-in-suit in MicroUnity related to “processing different types of media data, including audio, video, and graphics data, at very high volume in real time.”116 The defendants were divided into three categories: chip man-ufacturers, handset manman-ufacturers, and carriers.117 The court found that “a
‘logical relationship’ exists between all of the accused products and services because infringement for all products and services will involve to some extent their implementation and use of an ARM architecture and instruction set.”118 ARM is “an acronym for Advanced RISC Machines.”119 RISC standards for
“reduced instruction set computer” that is another type of microprocessor ar-chitecture.120An ARM architecture is an integrated circuit design for a proces-sor, and an ARM instruction set is an assembly language associated with the integrated circuit design.121 Because all defendants used ARM technology in their products,122the court concluded that the accused “products are similar enough to satisfy the ‘nucleus of fact or law’ test.”123 By using “similar,” the MicroUnity court seemed to apply the “dramatically different” standard.
Under MicroUnity, the existence of a logical relationship may be based on a finding of the same technology used by all accused products or services.
MicroUnity could be embraced by EMC and then be incorporated into case law under § 299. First, the third EMC factor requires “the use of identically sourced components,”124 while MicroUnity requires the use of ARM proces-sors by different accused products or services.125 Second, if the term “the same accused product or process” in § 299(a) could mean that different products or processes are the same because they use the same technology, then MicroUnity would not contradict § 299(a).
Although the MicroUnity court developed the “logical relationship” stan-dard that deviates from the “same patent” stanstan-dard, the Ganas court ignored such approach. In Ganas, the court encountered two sets of motions to sever.126
113See id.
114Id. (citing Hanley v. First Investors Corp., 151 F.R.D. 76, 79 (E.D. Tex. 1993)).
115Id. (citing Hanley, 151 F.R.D. at 79) (emphasis added).
116Id. at *2.
117See id. at *3.
118Id.
119Kim Hazelwood & Artur Klauser, A Dynamic Binary Instrumentation Engine for the ARM Architecture § 2.1, in CASES’06 (Oct. 23-25, 2006), http://www.cs.virginia.edu/kim/docs/cases06.pdf.
120See What is RISC?, Stanford U., http://cs.stanford.edu/people/eroberts/courses/soco/projects/risc/
whatis/index.html(last visited July 31, 2015).
121See Hazelwood & Klauser, supra note 119.
122See MicroUnity Sys. Eng’g, 2011 WL 4591917, at *3 (“[The plaintiff’s] infringement contentions will therefore have common questions of fact concerning ARM’s architecture and instruction set, which are featured in all of the accused products.”).
123Id.
124See In re EMC Corp., 677 F.3d 1351, 1359-60 (Fed. Cir. 2012).
125See MicroUnity Sys. Eng’g, 2011 WL 4591917, at *3.
126See Ganas, LLC v. Sabre Holdings Corp., No. 2:10–CV–320–DF, 2011 WL 8183246, at *1 (E.D. Tex. Oct. 19, 2011).
Three defendants filed a motion to sever and transfer, while one defendant filed a motion to dismiss for improper joinder or alternatively to sever.127 Regard-ing the first set of motions, the court considered the misjoinder issue in light of the issue of venue transfer and found the joinder permissive merely because of judicial economy.128 Regarding the second set of motions, the court denied severance because “the nucleus of operative facts or law in the claims against all the defendants” existed.129 Therefore, the infringement of the same patent was the original reason causing all defendants to be sued jointly.130 By permit-ting joinder, Ganas simply followed the “same patent” standard, which violates
§ 299(b).
In Lodsys, one defendant filed a motion to dismiss or, alternatively, to sever and transfer venue.131 To support its misjoinder argument, the defendant as-serted that “the accused products are dramatically different.”132 But, the court disagreed.133 When analyzing the “same transaction or occurrence” require-ment, the court adopted the “logcal relationship” standard again by repeating the propositions mentioned in MicroUnity.134 The court held that a logical re-lationship exists between the claims against all defendants.135 First, the court found that “[t]he inventions detailed in the various claims of the patents-in-suit were developed by the same inventor and all originate from a common application.”136 The court also found that “the alleged infringement involves the implementation and use of the patented inventions.”137 Furthermore, af-ter finding that the patented inventions was implemented and used to “probe users for information related to a product or service, regardless of whether the accused product is a printer, personal computer, cell phone, or website,”138the court concluded that “the accused products at issue are sufficiently related to satisfy the ‘same nucleus of operative fact or law’ text.”139 By saying that the patented inventions were used in different accused products, the court actually found that the patented inventions were infringed by different accused prod-ucts. So, the court simply rephrased the “same patent” standard, which still violates § 299(b).
Apple took a different approach to the “logical relationship” standard140and
127See id.
128See id. at *9 (“On balance, the convenience and local interest factors do not outweigh the judicial economy of avoiding creation of five separate actions spread across four judicial districts. The motions of TDAI, Scottrade, and National Financial to sever and transfer should therefore be DENIED.”).
129See id. (quoting MyMail, Ltd. v. Am. Online, Inc., 223 F.R.D. 455, 457 (E.D. Tex. 2004)) (internal quotation marks omitted).
130See id.
131See Lodsys, LLC v. Brother Int’l Corp., No. 2:11–cv–90–JRG, 2012 WL 760729, at *1 (E.D. Tex. Mar. 8, 2012).
132Id. at *5.
133See id.
134See id.
135See id. (“A logical relationship exists between all of the accused products”).
136Id.
137Id.
138Id.
139Id.
140See Imperium (IP) Holdings, Inc. v. Apple Inc., No. 4:11–CV–163, 2012 WL 461775, at *2 (E.D. Tex. Jan. 20, 2012) (reciting MicroUnity Sys. Eng’g, Inc. v. Acer Inc., Nos. 2:10–CV–91–TJW–CE, 2:10–CV–185–TJW–CE, 2011 WL 4591917, at *3 (E.D. Tex. Sept. 30, 2011)).
permitted joinder.141The patents-in-suit in Apple related to image sensor tech-nology.142 The accused products were cell phones or other devices with image sensors.143 One defendant Apple in its motion to sever argued that the sale of accused products by unrelated defendants does not meet the “same transaction or occurrence” requirement.144 But, the court disagreed.145
When discussing the “same transaction or occurrence” requirement, the court recited the propositions mentioned in MicroUnity to present the “logi-cal relationship” standard.146 The court further stated that “[c]ourts have also found joinder proper where Defendants’ allegedly infringing products are not dramatically different and determining Defendants’ liability will involve sub-stantially overlapping questions of law and fact.”147 So, the court simply em-braced Oasis I and the “dramatically different” standard.148 The court even reaffirmed Eolas.149Eventually, the court held that the “same transaction or oc-currence” requirement is satisfied because of “the similarity of the component image sensors and image processors used by” all defendants.150 In footnote 3 of the Apple decision, the court also made a comment on how § 299 will apply to the present case.151 The court stated that the “same transaction or occur-rence” requirement is still met because “an identical image sensor or processor [is used] in different products,”152or alternatively because “the technology at issue is the same.”153
Because Apple applied the “dramatically different” standard, Apple should not be good law under EMC or § 299. But, while the court found that “[t]he accused devices all rely on the same technology for image sensors and image processors, which Defendants purchase and integrate into their products,”154 the court did rely on the plaintiff’s allegation that the accused products “use the same MT9D112 image sensor manufactured by Aptina, a third-party sup-plier.”155 So, the Apple standard could be considered the third EMC factor “the use of identically sourced components” rather than the “dramatically differ-ent” standard.