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May 08, 2013

The Impact of the America Invents Act on Litigation by Non-Practicing Entities

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More than one year after enactment of the Leahy-Smith America Invents Act (AIA), there has been no marked decrease in infringement suits brought by non-practicing entities (NPEs). This result is not surprising given how the AIA’s joinder provisions have been applied. As a result of the AIA, courts now dutifully bar plaintiffs from listing unrelated defendants in the same caption of a single complaint, thereby forcing NPEs to file separate cases against each defendant. The courts, however, are now routinely consolidating the nominally separate cases for pretrial purposes. Such pretrial consolidation has transformed the AIA’s joinder provisions into a procedural farce; separate pieces of paper must be filed, but the cases proceed as if the defendants were named in a single lawsuit. Meanwhile, the economic considerations that incentivized NPEs to bring broad, meritless litigation have remained essentially unchanged because NPEs are still able to sue multiple defendants at almost no incremental cost.

View full memo, "The Impact of the America Invents Act on Litigation by Non-Practicing Entities"