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Plaintiff Lacks Standing to Pursue Claims Absent Joinder of Owner

By Michael C. Smith

US Foam, Inc. v. On Site Gas Systems, Inc., 2009 WL 2605280(E.D.Tex. Aug 21, 2009) (NO. 2:07-CV-466-TJW, 6:08-CV-31-LED)
Judge: T. John Ward
Holding: Motion to Dismiss for Lack of Standing DENIED
What's a patent case without a motion to dismiss for lack of standing at the outset?  It'd be like the waiter forgetting to bring chips and hot sauce, right?  Well, in this case, Judge Ward was served with the requisite chips, salsa (and possibly queso, although the record isn't clear on this point) and denied the defendant's motion to dismiss for failure to join the patent owner, but determined that the patent owner was a necessary party and provided plaintiff leave to amend to add the new party. Judge Ward found that the patent owner had retained a significant amount of interest in the patent in suit, and that the exclusive licensee had failed to show that it has all substantial rights under the patent.  But a dismissal was not proper if the owner could be added, so he gave the plaintiff 60 days to invite the owner to the fiesta (continuing the Tex-Mex theme of this post).  If the defendant was cordially invited to refile the motion to dismiss, at which point the plaintiff would likely assume pinata status.  (For those of you not familiar with a pinata, it's sort of like a cross between pin the tail on the donkey and a lynching).

Full post as published by Eastern District of Texas Federal Court Practice on August 28, 2009 (boomark / email).