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This article reviews the impact of the America Invents Act’s “disjoinder” provision on multidefendant patent litigation in the year since its enactment.

The article is divided into two parts.

This first part provides background regarding the issue of multidefendant patent litigation as well as an overview of the judicial and legislative approaches to addressing this issue, with a focus on new 35 U.S.C. § 299, which was enacted as part of the AIA on Sept. 16, 2011.

The second part, which will be published next week, assesses the impact of Section 299 of the AIA on the filing and management of patent infringement litigations, both at the pretrial and trial phases.

Introduction

It now has been just over a year since the adoption of the Leahy-Smith America Invents Act, P.L. 112-29, the first significant act of patent reform in almost 60 years. One of the many issues that the AIA addresses is that of multidefendant litigation, in which a plaintiff patent-holder sues multiple unrelated entities in a single patent infringement action.

In this article, we discuss new 35 U.S.C. § 299, the provision of the AIA directed at alleviating multidefendant litigations, and assess its impact in the year since its enactment.

As a practical matter, the change has not been dramatic, at least at this early stage. Courts, exercising the authority to efficiently manage their own dockets, are consolidating the many serially filed cases for pretrial purposes. Defendants across cases still rally together in joint defense arrangements, sharing the workload for common issues. This results in a landscape quite similar to the pre-AIA state of affairs through all pretrial proceedings. How courts will manage these cases at the trial stage — where, under the AIA, unrelated defendants may not be consolidated for trial — could demonstrate a more dramatic shift. But this remains to be seen.