Review of Intellectual Property Law Blog

The America Invents Act: One Defendant, One Lawsuit

By Felisa Leisinger on Monday, September 19th, 2011
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My husband and I are retirees at-heart. We wake up really early (I’m here at 5:00am with my cup of coffee writing this), drink coffee, read the modernized paper (blogs, do homework, etc.). We watch CBS Sunday Morning with Charles Osgood religiously (one of us may even be subscribed to the show’s twitter feed). We really enjoy going for long walks. It’s especially exciting if we can pair the walk with errands: forgot an ingredient to the recipe? Want to walk to go get it? Walking is some sort of meditation for us. On our way to pick up the last ingredient to our regular meatloaf dinner we get to watch puppies and kids in the park.

We also love listening to stories on long car trips. I can’t say we’ve ventured as far as books-on-tape, but give us a podcast, and we’ll probably be listening to it. This American Life has become a family favorite. It’s both educational and entertaining. If we catch Ira Glass (the host) on an especially exciting week, maybe it’s a little scandalous too (always with listener warnings).

Over Labor Day weekend, for the first time, I was uncomfortable listening to the story. The episode was about the hotly debated “patent trolls” in the episode “When Patents Attack.” It was like hearing your family’s dirty secrets aired out over the radio. But the truth is, patents are easy targets for criticism. The theories in which the laws were made are struggling to find their fit in the ever-changing modern world. To add fuel to critic’s fire, the way patentees enforce their rights are also changing. I’m not saying non-practising entities (NPEs) that enforce their intellectual property rights are right or wrong, but that it’s easy to see how they’ve come to use the patent laws.

With a set of laws that so grossly needed to be reformed to better fit with “today’s times” (because humanity has shown time-and-again that it’s impossible to reform people) the 2011 enactment of the America Invents Act (“AIA”) was long overdue. There are many provisions included in the AIA (and there were many provisions that were left out). But, one might offer some relief from NPEs.

The AIA includes a joinder provision that state there must be another basis for joinder beyond an allegation that defendants have all infringed a patent. This means, essentially, there is now a “one defendant-one lawsuit” rule that will require a NPE to try as many cases as there are defendants it wants to sue. Not only is this cost prohibitive, but it puts the validity of the NPE’s patent on the chopping block in each law suit. The other side of the “one defendant-one lawsuit” coin is that it raises litigation costs for everyone but major corporations, making it unfair to pursue legitimate wide-spread infringement.

I’m not sure which side of the coin I’m on at this point. But, I definitely think any reform was better than no reform.

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