287 F. Supp. 3d 651
E.D. Tex.2018Background
- TWW sued Walmart for infringement of three patents; Walmart answered and scheduling proceeded.
- Intex, Coleman, and Bestway moved to intervene as defendants; the Court granted intervention as of right (and permissively) on December 7, 2017.
- After intervention, the intervenors sought severance under 35 U.S.C. § 299 (misjoinder), transfer to other districts (venue or convenience), and stays of the remaining Walmart case.
- Intervenors argued Walmart was a peripheral defendant and that § 299 required severance and transfer; they alternatively claimed improper venue or that other forums were more convenient.
- TWW responded that § 299 governs joinder, not intervention, and that intervenors waived venue and misjoinder defenses by voluntarily intervening.
- The Court denied all motions: § 299 does not apply to intervention (only joinder), and intervenors waived venue/misjoinder by choosing to enter and litigate in this forum.
Issues
| Issue | Plaintiff's Argument (TWW) | Intervenors' Argument | Held |
|---|---|---|---|
| Whether 35 U.S.C. § 299 requires severance of intervenors who entered under Rule 24 | § 299 does not apply to intervenors because it addresses joinder under Rule 20 | § 299's policy against misjoinder should apply to prevent plaintiffs from using a reseller to litigate against multiple manufacturers together | Denied — § 299 governs joinder/consolidation, not intervention; Court will not read intervention into § 299 |
| Whether intervenors waived misjoinder defense under § 299 by intervening | Even if § 299 applied, intervenors waived misjoinder by voluntarily intervening; Walmart acquiesced | Intervenors contend intervention as of right preserves their defenses, including venue and misjoinder; rely on SEC v. Ross | Denied — Court finds intervenors may waive misjoinder by intervening; alternatively held § 299 inapplicable |
| Whether intervenors waived venue and convenience-transfer challenges by intervening | Intervenors waived venue by voluntarily entering the suit and invoking the court's jurisdiction | Intervenors argue intervention of right should not forfeit Rule 12(b) defenses and cite minority authority that preserves such defenses | Denied — intervenors waived venue objections by voluntarily participating; longstanding authority holds intervenors cannot object to venue |
| Whether transfer under 28 U.S.C. § 1404(a) or dismissal for improper venue is appropriate | Venue and transfer objections are waived; no separate transfer warranted | Venue improper or clearly more convenient elsewhere; request severance then transfer and stay | Denied — no severance under § 299; intervenors waived venue objection, so transfer not granted |
Key Cases Cited
- TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017) (statutory venue framework for patent cases)
- Van Dusen v. Barrack, 376 U.S. 612 (1964) (purpose of § 1404(a) to promote convenience and prevent waste)
- Cont'l Grain Co. v. Barge FBL-585, 364 U.S. 19 (1960) (venue/transfer interests of justice principle)
- Train v. Colorado Pub. Interest Research Grp., 426 U.S. 1 (1976) (use of legislative history in statutory interpretation)
- Marbury v. Madison, 5 U.S. 137 (1803) (judicial duty to say what the law is)
- Cent. Tr. Co. v. McGeorge, 151 U.S. 129 (1894) (intervenor who voluntarily submits to jurisdiction waives venue objections)
- Clark v. Barnard, 108 U.S. 436 (1883) (state may waive sovereign immunity by voluntary appearance)