The changes implemented by the America Invents Act (AIA) have made it so that the patent system needs to be approached in an entirely new way. Patent practitioners need to have a detailed understanding of how the AIA affects litigation, prosecution and post-grant proceedings. This article is the second of a three-part series. Read part one here.
Along with the additions of post-grant review practice, the America Invents Act (AIA) also significantly altered patent litigation. In typical pre-AIA litigation filed by non-practicing entities (what those in the industry refer to as “patent trolls”), a non-practicing entity would file a patent infringement suit against numerous defendants that had nothing in common, other than the fact that each had been accused of infringing the same patent. The implementation of the AIA altered the ability of plaintiffs to file one lawsuit against numerous defendants in situations such as these. Instead, joinder of defendants is now permitted only where the claims against the defendants arise 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 the same accused product or process” and requires that questions of fact common to all defendants or counterclaim defendants arise in the same action.