Litigation After The AIA: More Of The Same?

Intellectual Property – AIA Series

Two provisions of the September 2011 Leahy-Smith America Invents Act ("AIA") were adopted in an apparent attempt to reform certain aspects of patent litigation - Section 299 related to joinder of multiple defendants and section 298 related to advice of counsel and willful infringement. But that begs the question - will these provisions have any significant effect on U.S. patent litigation? The apparent answer so far is no.

Joinder of Parties

This section was Congress' attempt to codify in the Patent Act the joinder standards of Rule 20 of the Federal Rules of Civil Procedure and reconfirm that there is no "patent-specific" joinder standard. In doing so, it seems Congress hoped to stem the tide of massive multi-defendant patent infringement cases filed, primarily, by non-practicing entities, sometimes also known as "patent trolls". The new law states that a plaintiff may only join multiple defendants where the claims arise out