IN RE: Disposable Diaper Patent Validity Litigation

Case MDL No. 136 Document 2 Filed 05/01/15 Page 1 of 2
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a . IN RE DISPOSABLE DIAPER PATDNT VALIDITY LITIGATION INV
Cite as 302 F.Supp. 67 (1073)
C i } I" cerning the validity and enforceability	ted in In re DISPOSABLE DIAPER PATENT of the Proctor and Gamble (hereinafter
+ rchudnly, VALIOUVY LITIGATION, P&G) patent on disposable paper dia- ) :
rider [he No. 136. pers. Both UL S. Industries, Ine; (here-
Cor net il is inafter J.8.1.) and Weyerhaeuser Com- :
cen [Tariff + Judicial Panel on Multidistrict Litigation. pany manufacture and sell disposable pa- ;
dde TT page Aug. 21, 1973. per diapers which P&G has alleged in- :
fringes its patent. Weyerhaeuser moves :
nie miasieal the Panel for an order transferring all
“ind instra- Proceeding on motion for transfer, .iiang (0 a single district for coordinat-
A make the of action. The Panel on Multidistrict oq consolidated pretrial proceedings.
so ns to Litigation held that where patent litiga- 1.51, favors transfer only to the South- :
Se send, a tion consisted of only three actions in ern District of New York; P&G opposes
t thoge mn- two different districts, at least one ac- yaar. We find insufficient basis for
Live trent “tion in transferee court was proceeding transfer under Section 1407 and, accord- ‘
Conopart of a expeditiously toward trial, and if court ingly, deny the motion. Co
cevity to the in such action held patent invalid estop-
— or ale opel rule could eliminate any nced for’ In March 1972 U.S.1. filed a declarato-
not intended further discovery or trial concerning the ty judgment action against PEG in the
vn of elees litigant, transfer of action for coordinat- Southern District of New York assert- .
ed or consolidated pretrial proceedings ing that the disposable diaper patent
have found was inappropriate. was invalid and not infringed. U.S.L. ] eo ‘
ta support Motion denied. neiiomclubs	nord an 1h imvedidity	of
sported arti See also N.C., 348 I'.Supp. 1265. thie patent. Tn Jannary 1073 P&G filed :
Kieiiod ting an : an infringement action against Weyer-
ht co Mi : Could CHUTE hueuser in the Northern Dist vict of HH- oo
CAD. Where patent litigation consisted of nols. Shortly thereafter, Weyerhaeuser :
only three actions in two different dis- filed a declaratory judgment action Co
tricts, at least one action in transferee against PEG in the Western District of
EE in witness court was proceeding expeditiously to- Washington asserting the sare claims . E
een whey po ward trial, and if court in such action aS those asserted by UST. in the New ;
ported ae “held patent invalid estoppel rule could York action. The Weyerhaeuser declar-
Erically, and eliminate any need for further discovery atory judgment, action, however, has |
be attaching or trial concerning the litigant, transfer since been transferred under Section !
womade audi of action for coordinated ov consolidated 1404(n) to the Northern District of Ili-
cin dizeusred, pretrial proceedings was inappropriate. pois. As a result, there are two actions
the ST _ 28 URGAL§ 1407. : pending in the Navthern District of THi-CC to oe ne = nois and one in the Southern District ofonorted mrli- —_— i
Cunacsentled, Before ALFRED P. MURRAIL», ev York |BARE . "a Chairman, and JOHN. MINOR WIS- Movant Weyerhacuser contends {hat
ication un- DOM, EDWARD WEINVFELD, EDWIN the issue of patent validity is common to
fe dismissed, A. ROBSON, WILLIAM IH. BECKER *, all actions and that tranafer is necessary |
Aoaceavdingls, JOSEPH 8 LORD, I, and STANLEY jy order to avoid duplication of discov-
tte he A. WEIGEL, Judges of the Pancl. ery. Although there iy a possibility of
Colne THE i } N some duplication of discovery between }
Swit heed : OPINION AND ORDER the Chicago and Mew Yark actions re-
sin PER CURIAM. garding the validity of the P&G patent,
0 This patent litigation consists of three the reasons for denying transfer, on bal-
_ Ee Tactions in two different districts con- ance, are more compelling.
2 ¢ Althongch Judges Muarcreah nnd Recker were with the conzent of nll partic, partied :~ . ' not present al the hearing, they have, pated in this decision,
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cw ere on a |

Case MDL No. 136 Document 2 Filed 05/01/15 Page 2 of 2
RETIN $Ua FLDERAL SUPPLEMENT | IN RE SERRU
we have previously denied transfor the just and efficient conduct of thig lit- Courts Copy70
: Ea cerbain actions in the litigation igation, espeeindly since the entire litigra- | Action hy formeyCL proceeding expeditiously toward tion involves only three actions pending ; acquired corporating yetind, In ore Falls Cily, Nebraska, Air in two different districts, Furthermore, i rectors, officers and agi ev Litigation, 298 F.Supp. 1323, if the Hlinois court holds the P&G pat- corporation hased on .[ey And in ent invalid, the application of the estop- § of federal SecuritienNeo the Chicago actiong, the court has pel rule of Blonder-Tongue Laboratoricy, | transferred to Sothernnrdered a discovery cutoff date of Sep- Inc. v. University of Hinois Foundalion, | Yorke for conrdinageq ©rember 28, 19713, and plang to set a trial 402 U.S. 313, 91 S.Ct. 1434, 28 I..1d.24d i pretrial proceeding
date Tor Qclober or November. Thus, 788 (1971), could eliminate any need for viously transferved to,ceeanse of the imminency of trial in further discovery ov trial concerning the der to serve conveniene,“hat action, we are not convinced that validity of the P&G patent, witnesses and to promosrnsfer of these action for coordinated It is therefore ordered that the motion | cient conduct of the hb~roconsolidated pretrial proceedings at for transfer of the actions listed on the | plaintiffs’ complaint‘hig time will serve the convenience of attached Schedule A be, and the same { Lions similar to those we‘he parties and witnesses or promote hereby is, denied. Liffs who still had cana
‘ } } ing in transferee distr
~ SCUEDULE A DOCKET NO. 136 Eo many of defonanty on: : ! ants in the actiona jy Ne
SOUTHERN DISTRICT OF NEW YORK ! S.C.A. § 1407; Fed tnleU. 5. Industries, Inc. v. The Proctor & Civil Action i 23, 28 U.S.C.A.
Gamble Co. No. 72 Civ. 1351 (ELP) | : : —e
. NORTHERN DISTRICT OF ILLINOIS .
The Procter & Gamble Co. v. Weyer- * © Civil Action i OPINION AND
haonser Co, No. 72 C 237 | Before ALFRED pyrwn ‘Veyerhaeuser Co. v. Procter & Gamble Civil Action oo } ! a, and JOUN SHINO= Co, No. 73 C 616 { WARD WENT PAN 3
- oo ) i SON, WILLIAM Hi. py
’ : S. LORD, HI, and spar
: ' | GEL, Tudges of the Pam® [ i PIR CURIAM, Shki: / . for coordinated or ‘consolidated pretrial Tha Panel initially tran
in re SELBURG-CHMMONWEALTH proceedings with| actions previously Po A hon" BR :UNITED MERGER LITIGATION. transferred to that district in order to buon 5) oo ti \ TiCen Pelrolaum Company, et al, v. Serve convenience!of parties ad wit | ict of Meo I LoAdame & Peck, ef al, Northern Dis- nesses aud to promote just and efficient f th i ) oil ! pi 3 onict of Texas, Civil Action No. CA-3~ conduct of the litigation, where ques- | Ge bo Li a.6579 I. ’ tions - concerning: orders centered hy ting inion, fm© No. 37. 7 transferce court and effect of a settle au oN or"hiddietal Panel on Multidistrict Litigation, ment upon claims asserted hy plaintiffs ! Comnonwenlth United
Ang. i3, 1973. - were all questions hest resolved by Lion, 312 F.Supp, 909 (fa
i transferree judge where plaintiffs come : 1270). Since hat tine,
: : _ plaint contained	jallegations similar to transferred to that dit
The Judicial Panel on Multidistrict those asserted by plaintiffs who still had actions svhich rained oq :CHieation transferred action by former causes of action pending in transferee common to those juitinil
Careholdory of acquired corporation district, and where many of defendants ) See, e.g, In re Seehuppy :cainal, various. directors, officers and ore also defendants in the actions in United Merger LitigationCont of acquiring corporation hased on New York. : : To H52 (Jud.Pan	Mult.Lit 127
Hered vielatinng cof federal securities ordered the parties in 1
crv bo Southern Piglet of New York Order accordingly.’ 362 F.Supp.—6Ys |
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