IN RE: Suess Patent Infringement Litigation

Case MDL No. 74 Document 2 Filed 04/30/15 Page 1 of 8
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BEFORE THE JUDICIAL Pann RUG23 197 EE :
ON an A So
EA THIS RESINS :MULTIDISTRICT LITIGATION [ilit.eq us. if
IN RE SUESS PATENT ) ) DOCKET NO. 74
INFRINGEMENT LITIGATION ) :
OPINION AND ORDER Nin
or MD Cros woBEFORE ALFRED P. MURRAH, CHAIRMAN AND JOHN MINOR WISDOMY*, Fs
EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH Lo
S. LORD, III*, AND STANLEY A. WEIGEL, JUDGES OF THE PANEL ! : RE
PER CURIAM
The common plaintiffsl/ in ten patent infringement suits Lo
in seven districts have moved the Panel for transfer under LL
Co Section 1407 to the Northern District of Illinois. Each of :
the actions is for infringement of the Suess patent, which plain- Lr
tiffs assert covers the basic oxygen process of refining steel.
Although the plaintiffs urge that common questions of fact are i
raised in these cases by the issue of patent validity and by I
the antitrust counterclaims asserted by several defendants, the :
most important pretrial issue is collateral estoppel.
In a prior action brought by these plaintiffs against EE
another alleged infringer, the Suess patent was held invalid.
* Although Judge Wisdom and Judge Lord were not present at
the hearing they have, with the consent of all parties, participated
in this decision.
1/ Plaintiffs are Kaiser Industries Corp., Vereinigte Oester-
reichische Eisen-Und Stahlwerke Aktiengesellschaft (VOEST) and
Brassert Oxygen Technik (BOT).

Case MDL No. 74 Document2 Filed 04/30/15 Page	2 of 8
@ tT
Kaiser Co. v. McLouth Steel Corp., 257 F. Supp 372 (E.D. Mich.
1966), aff'd, 400 F. 24 36 (6th Cir. 1968), cert denied, 393 U.S.
1119 (1969). Under the recent holding in Blonder-Tongue Labor-
atories, Ine. v. University of Tilinois Foundation, U.s.
(1971), a preliminary question in each case will be
whether that prior adjudication collaterally estops the plaintiffs
from suing these defendants on the same patent.
The collateral estoppel issue has also been raised in
two additional infringement actions, not before the Panel, which
have been tried in the Western District of Pennsylvania before
Judge Rosenberg and are awaiting decision on the questions
of collateral estoppel as well as validity and infringement 2/
@® Those defendants which oppose transfer argue that no definitive
ruling can be made by a transferee court until Judge Rosenberg
has ruled in his cases. We think a better solution is to trans-
fer all cases presently before the Panel to the Western District
of Pennsylvania for assignment to Judge Rosenberg. The plaintiffs
have suggested that they introduced critical evidence in the
Pennsylvania cases which was not available in McLouth and which
avoids the collateral estoppel defense. Presumably they intend
to meet the defense in a similar manner in the remaining cases.
Judge Rosenberg is well acquainted with the facts of this
litigation and is in a position to deal with this issue expedi-
tiously. Judge Rosenberg's familiarity with the facts will also
® 2] Henry J. Kaiser v. Jones & Laughlin Steel Corp., W. D. of Pa.,Civil Action No. 61-551; Henry J. Kaiser v. Jones & Laughlin Steel
Corp., W. D. of Pa., Civil Action No. 62-272.

Case MDL No. 74 Document2 Filed 04/30/15 Page	3 of 8
® assist him in controlling any discovery in the common areas
of patent validity and antitrust counterclaims. In fact, it
may even be possible for him to conclusively determine the
patent validity and collateral estoppel issues in all of these
actions.
We have concluded that these cases satisfy the criteria
of Section 1407 and that only by transfer to the Western Dis-
trict of Pennsylvania can duplicative proceedings and the risk
of inconsistent decisions be eliminated. Although the plaintiffs
have urged transfer to the Northern District of Illinois and
the defendants favor the Eastern District of Michigan (where
McLouith was decided), both sides agree that the Western District
[ of Pennsylvania is an acceptable pretrial forum.
IT IS THEREFORE ORDERED that all actions on the attached
Schedule A be, and the same hereby are, transferred to the Western
District of Pennsylvania and assigned to the Honorable Louis Rosen-
berg for coordinated or consolidated pretrial proceedings under
Section 1407.
®

Case MDL No. 74 Document 2 Filed 04/30/15 Page 4 of 8
® DOCKET NO. 74 SCHEDULE A
NORTHERN DISTRICT OF ILLINOIS
Kaiser Industries Corp., et al. v. United States Steel Civil Action
Corp. No. 71-812
Kaiser Industries Corp., et al. v. International Civil Action
Harvester Co. No. 71-816
NORTHERN DISTRICT OF INDIANA
Kaiser Industries Corp., et al. v. Inland Steel Co. Civil Action
No. 71H92(2)
Kaiser Industries Corp., et al. v. Bethelehem Steel Civil Action
Corp. No. 71-91(2)
SOUTHERN DISTRICT OF ILLINOIS
Kaiser Industries Corp., et al. v. Granite City Steel Civil Action
Co. No. 4788
DISTRICT OF COLORADO
@ Kaiser Industries Corp., et al. v. CF&I Steel Corp. Civil ActionNo. 67C311
NORTHERN DISTRICT OF OHIO
Kaiser Industries Corp., et al. v. Republic Steel Corp. Civil Action
No. C-71-552
NORTHERN DISTRICT OF WEST VIRGINIA
Kaiser Industries Corp., et al. v. National Steel Civil Action
Corp. No. -68-29-W
DISTRICT OF DELAWARE
Kaiser Industries Corp., et al. v. Ford Motor Company Civil Action
No. 71-4095
Kaiser Industries Corp., et al. v. Wheeling-Pittsburgh Civil Action
Steel Corp. No. 71-4094

Case MDL No. 74 Document2 Filed 04/30/15 Page	5 of 8
® Sn ALPANTLENa TEE TT LAA	Ts
= bet SERRE
BEFORE THE JUDICIAL Paner AUG	23 1971
ON Ler
MULTIDISTRICT LITIGATION [illV. t.i'	CLEAN Ls fos Sande
IN RE SUESS PATENT ) "DOCKET NO. 74
INFRINGEMENT LITIGATION )
OPINION AND ORDER
BEFORE ALFRED P. MURRAH, CHAIRMAN AND JOHN MINOR WISDOM*,
EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH
S. LORD, III*, AND STANLEY A. WEIGEL, JUDGES OF THE PANEL
PER CURIAM
The common plaintiffsl/ in ten patent infringement suits
in seven districts have moved the Panel for transfer under
o Section 1407 to the Northern District of Illinois. Each ofthe actions is for infringement of the Suess patent, which plain-
tiffs assert covers the basic oxygen process of refining steel.
Although the plaintiffs urge that common questions of fact are
raised in these cases by the issue of patent validity and by
the antitrust counterclaims asserted by several defendants, the
most important pretrial issue is collateral estoppel.
In a prior action brought by these plaintiffs against
another alleged infringer, the Suess patent was held invalid.
* Although Judge Wisdom and Judge Lord were not present at
the hearing they have, with the consent of all parties, participated
in this decision.
1/ Plaintiffs are Kaiser Industries Corp., Vereinigte Oester-
reichische Eisen-Und Stahlwerke Aktiengesellschaft (VOEST) and
Brassert Oxygen Technik (BOT).

Case MDL No. 74 Document2 Filed 04/30/15 Page	6 of 8
Qo eT
Kaiser Co. v. McLouth Steel Corp., 257 F. Supp 372 (E.D. Mich.
1966), aff'd, 400 F. 24 36 (6th Cir. 1968), cert denied, 393 U.S.
1119 (1969). Under the recent holding in Blonder-Tongue Labor-
atories, Inc. v. University of Illinois Foundation, U.s.
(1971), a preliminary question in each case will be
whether that prior adjudication ccllaterally estops the plaintiffs
from suing these defendants on the same patent.
The collateral estoppel issue has also been raised in
two additional infringement actions, not before the Panel, which
have been tried in the Western District of Pennsylvania before
Judge Rosenberg and are awaiting decision on the questions
of collateral estoppel as well as validity and infringement, 2/
® Those defendants which oppose transfer argue that no definitive
ruling can be made by a transferee court until Judge Rosenberg
has ruled in his cases. We think a better solution is to trans-
fer all cases presently before the Panel to the Western District
of Pennsylvania for assignment to Judge Rosenberg. The plaintiffs
have suggested that they introduced critical evidence in the
Pennsylvania cases which was not available in MecLouth and which
avoids the collateral estoppel defense. Presumably they intend
to meet the defense in a similar manner in the remaining cases.
Judge Rosenberg is well acquainted with the facts of this
litigation and is in a position to deal with this issue expedi-
tiously. Judge Rosenberg's familiarity with the facts will also
@ 2] Henry J. Kaiser v. Jones & Laughlin Steel Corp., W. D. of Pa.,
Civil Action No. 61-551; Henry J. Kaiser v. Jones & Laughlin Steel
Corp., W. D. of Pa., Civil Action No. 62-272.

Case MDL No. 74 Document 2 Filed 04/30/15 Page 7 of 8
® oT
assist him in controlling any discovery in the common areas
of patent validity and antitrust counterclaims. In fact, it
may even be possible for him to conclusively determine the
| patent validity and collateral estoppel issues in all of these
actions.
We have concluded that these cases satisfy the criteria
of Section 1407 and that only by transfer to the Western Dis-
trict of Pennsylvania can duplicative proceedings and the risk
of inconsistent decisions be eliminated. Although the plaintiffs
have urged transfer to the Northern District of Illinois and
the defendants favor the Eastern District of Michigan (where
McLouth was decided), both sides agree that the Western District
C of Pennsylvania is an acceptable pretrial forum.
IT IS THEREFORE ORDERED that all actions on the attached
Schedule A be, and the same hereby are, transferred to the Western
District of Pennsylvania and assigned to the Honorable Louis Rosen-
berg for coordinated or consolidated pretrial proceedings under
Section 1407.
®

Case MDL No. 74 Document2 Filed 04/30/15 Page	8 of 8
9 DOCKET NO. 74 SCHEDULE A
NORTHERN DISTRICT OF ILLINOIS
Kaiser Industries Corp., et al. v. United States Steel Civil Action
Corp. No. 71-812
Kaiser Industries Corp., et al. v. International Civil Action
Harvester Co. No. 71-816
NORTHERN DISTRICT OF INDIANA
Kaiser Industries Corp., et al. v. Inland Steel Co. Civil Action
No. 71H92(2)
Kaiser Industries Corp., et al. v. Bethelehem Steel Civil Action
Corp. No. 71-91(2)
SOUTHERN DISTRICT OF ILLINOIS
Kaiser Industries Corp., et al. v. Granite City Steel Civil Action
Co. No. 4788
DISTRICT OF COLORADO
C Kaiser Industries Corp., et al. v. CF&I Steel Corp. Civil ActionNo. 67C311
NORTHERN DISTRICT OF OHIO
Kaiser Industries Corp., et al. v. Republic Steel Corp. Civil Action
: No. C-71-552
NORTHERN DISTRICT OF WEST VIRGINIA
Kaiser Industries Corp., et al. v. National Steel Civil Action
Corp. No. -68-29~-W
DISTRICT OF DELAWARE
Kaiser Industries Corp., et al. v. Ford Motor Company Civil Action
No. 71-4095
Kaiser Industries Corp., et al. v. Wheeling-Pittsburgh Civil Action
Steel Corp. No. 71-4094