AIA: Changing How Non-Practicing Patent Owners Can Assert Their Patents
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In an effort to reduce the number of multi-defendant patent infringement lawsuits often brought by non-practicing patent owners, the America Invents Act (AIA) includes a new statutory provision that addresses joinder of accused infringers in patent actions or trials not involving certain drugs and biologics. Under the new law (35 U.S.C 299), parties accused as defendants may be joined in one action in a single judicial district as defendants or counterclaim defendants only if:
(1) any right to relief is asserted against the parties jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences relating to the making, using, importing into the United States, offering for sale, or selling of the same accused product or process; and
(2) questions of fact common to all defendants or counterclaim defendants will arise in the action.
For purposes of this new provision, accused infringers may not be joined based solely on allegations that they each have infringed the patent or patents in suit. Defendants may waive this provision, which is effective in any civil action commenced on or after the date of enactment of the AIA.
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