Bifurcation and Consolidation Issues for Patent and Antitrust Claims

A. Consolidation Under Rule 42(a)
In some cases, patent claims and antitrust claims resulting from the
same occurrence or transaction will be raised in separate complaints.
The parties in such cases may request that the court consolidate the
actions for discovery and pretrial procedures under Federal Rule of Civil
Procedure 42(a).1 The Federal Circuit will treat a consolidated action as
“one merged unit for certain jurisdictional purposes,” and “no different
than a single action with counterclaims.”2
B. Bifurcation under Rule 42(b) and Rule 16(c)
1. Trial Bifurcation Generally
Courts consider several issues when deciding whether to allow
consolidation or bifurcation of claims in a case involving patent and
antitrust issues. Ultimately, however, whether to bifurcate or consolidate
lies within the court’s wide discretion.
Courts may bifurcate patent and antitrust claims for purposes of trial
under Federal Rule of Civil Procedure 42(b), which provides that “[f]or
convenience, to avoid prejudice, or to expedite and economize, the court
may order a separate trial of one or more separate issues, claims, cross
claims, counterclaims, or third-party claims” and that “[w]hen ordering a
separate trial, the court must preserve any federal right to a jury trial.”3
Such bifurcation is procedural, not substantive, and does not affect
1. Federal Rule of Civil Procedure 42(a) provides:
Consolidation. If actions before the court involve a common question
of law or fact, the court may:
(1) join for hearing or trial any or all matters at issue in the actions;
(2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or delay.
2. Spraytex Inc. v. DJS&T, 96 F.3d 1377, 1382 (Fed. Cir. 1996).
3. Fed. R. Civ. P. 42(b).

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