"Are you going to see more MDLs in light of the AIA? Yes," said Yar Chaikovsky, a patent litigator at McDermott Will & Emery. "Once you have cases in three different venues, you have a pretty decent argument for an MDL."
It's not just plaintiffs using the process strategically, Chaikovsky said. For instance, turning to the MDL panel can be a "get out of jail free card," he said, for defendants looking for a way out of the Eastern District of Texas, famously viewed as an undesirable jurisdiction to fight patent suits.
But patent lawyers point out that petitioning for an MDL is also a gamble because the panel can send cases anywhere in the country, regardless of whether related cases are pending in that jurisdiction.
Meanwhile, in the Eastern District of Texas, Chief Judge Leonard Davis has crafted an approach to keep control of the district's mammoth patent docket in the wake of recent reforms.
He laid out his procedure in Norman IP Holdings v. Lexmark International, 11-495. His August order severed some defendants as required by the America Invents Act but consolidated the newly split cases for pretrial issues.
"It does not make sense for two courts to plow the same ground," Davis wrote.
Davis said he would rule later on transfer motions and stay transfers until after the critical claim construction phase of the case when judges construe the terms of a patent.
"It's like a mini-MDL. It applies MDL principles to the AIA's requirement that all these cases be filed separately," said Matthew Powers of Tensegrity Law Group, a plaintiffs-side law firm. "I think it's clever."
Lawyers who defend clients against nonpracticing entities, or so-called patent trolls, in the Eastern District of Texas had a different take on the Norman IP ruling. One lawyer called the order from "King Judge Davis" "a scary thing" for defendants in patent cases.
It's conventional wisdom that patent lawsuits targeting numerous companies become unwieldy and difficult to defend. Meanwhile, it is cheaper and easier for plaintiffs to pursue litigation when a case is consolidated.