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AIA’s Impact on Multidefendant Patent Litigation: Part 2
In the first part of this article, available here, we reviewed the background concerning the filing of multidefendant patent litigations and provided an overview of the judicial and legislative approaches to addressing this issue, with a focus on new 35 U.S.C. § 299, also known as the “disjoinder” provision of the America Invents Act.
Below, we continue our analysis of this issue, and assess the impact of Section 299 of the AIA on the filing and management of patent infringement litigations, both at the pretrial and trial phases.
IV. Assessing The Initial Impact of the AIA on Multidefendant Patent Litigation
A. Joinder of Multiple Defendants
The initial impact of the enactment of the AIA immediately was felt in a flood of multidefendant lawsuits filed in the days prior to the AIA’s enactment date. In the days before the bill was signed into law, at least three nonpracticing entities brought 12 cases against 222 companies. In the two weeks before the bill was signed, 85 cases were filed against over 800 defendants. This is a significant spike in filings compared to the average of about 160 companies sued in a “normal” week for infringement. (See TechDirt Blog, Day Before Patent Reform Was Signed, Mad Dash By Trolls To Sue: 51 Cases Against 680 Defendants, http://bit.ly/qlU0kA, last visited Jan. 2, 2012.) Presumably, these entities rushed to file their multidefendant patent infringement suits, thus reducing their transactions costs, before the practice was precluded with the enactment of the AIA.
Some of the defendants in this wave of cases have challenged these lawsuits on the basis that they were improper. In addressing these challenges, some courts have found no problem with this practice. For example, in Variant Holdings LLC v. Hilton Hotels Holdings, No. 2:11-cv-00427 (E.D. Tex. filed Sept. 15, 2011), the defendants accused Variant of filing a “threadbare” complaint naming 53 parties on the eve of the effective date of the new joinder provision, and then filling in the details later by way of an amended complaint.
