

Summary of new patent bill (America Invests Act) - j2labs
http://cdixon.org/2011/09/16/summary-of-new-patent-bill-america-invests-act/

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tzs
A very interesting provision that has not received much publicity is the
changes to joinder. Joinder is a procedure for combining lawsuits involving
multiple parties. As Wikipedia describes it:

    
    
       Joinder is a legal term, which refers to the process of
       joining two or more legal issues together to be heard in
       one hearing or trial. It is done when the issues or parties
       involved overlap sufficiently to make the process more
       efficient or more fair. It helps courts avoid hearing the
       same facts multiple times or seeing the same parties return
       to court separately for each of their legal disputes.
    

Patent trolls like to use joinder when they sue several different defendants
over the same patent to have the suits handled as one suit. The patent reform
bill specifically disallows that--you can no longer base joinder on just the
allegation that the defendants all infringe the same patent (and courts can no
longer consolidate cases on that basis unless the defendants consent).

When this is combined with the rules that went into effect a couple of years
ago that made it easier for defendants to get venue changed in patent suits,
and the net effect is going to be to significantly raise the litigation costs
of the trolls.

Before today, the troll could sue many companies in one suit in Texas, or in
separate suits and get them combined. Individual defendants might have tried
to change the venue to someplace more convenient (such as where they, and all
their witnesses, are located), but the courts would have favored keeping the
cases together as one suit where filed, rather than multiple suits in multiple
locations. Now those will stay separate suits, and many more defendants will
get to transfer them out.

In addition to raising the litigation costs of the trolls, this significantly
raises the chances they will lose their patents. If they sue, say, 10
companies and that results in 10 trials now instead of 1 trial, all it takes
is for _one_ of those juries to determine that the patent is invalid, and
that's the end of future trolling with that patent. (You might think at first
that it wouldn't work that way, because district court decisions just
determine the result among the parties at that trial--they don't set precedent
on legal issues or on facts between other parties, but it works different for
patents. I don't fully understand why, but my educated guess is that it is
because the patent office is sort of a party--the jury is finding that the
patent office did not consider the proper prior are or misjudged non-
obviousness or whatever, and so that changes the status of the patent itself).

Unfortunately, the joinder change only applies to suits filed after the bill
was signed so this will have no effect on the Lodsys cases that have already
been filed.

------
tzs
There have been a several good posts about various aspects of this bill on
Patently-O: <http://www.patentlyo.com/>.

These are a good counter to the vast amount of misinformation circulating
about this bill. It seems nearly everyone has an opinion on this, whether they
know anything about patent law (current and how it is being changed) or not.

------
atldev
Does anyone have insight into why this approach is being adopted after so many
years without change? You'd think if we were going to change anything, we'd at
least make it harder for patent trolls to sit on filings without actually
having built what they've "invented".

Edit: the more I read about the changes, the more it sounds like it benefits
large organizations with the resources to file vs. startups busy building new
things.

~~~
Vivtek
Yeah (to your edit) - quelle surprise!

------
notatoad
imho, the primary problem with the current patent system is that the people
who grant patents don't have even a rudimentary understanding of the
technologies related to the patents. that is the only explanation for some of
the patents that have been granted recently.

this act might improve the system in general, but it won't fix the gross
incompetency of the patent office.

------
nkassis
If I'm not mistaken the first to file requirement during the 70s would have
meant no PC industry as the Eniac patents would have survived and IBM could
have killed the entire homebrew scene.

So how does prior art work now? I mean, does the prior art need have been
patented to invalidate a new patent?

~~~
tzs
I don't see how anything would have been different with the ENIAC patents.
They were found unenforceable on several grounds, and invalidates on several
grounds, none of which that I can see would have come out different under
first to file.

As far as prior art goes, it will now be easier to find prior art against
patents. A summary of the changes is here:
[http://www.patentlyo.com/patent/2011/09/guest-post-
defining-...](http://www.patentlyo.com/patent/2011/09/guest-post-defining-
prior-art-under-the-leahy-smith-
aia.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+PatentlyO+%28Dennis+Crouch%27s+Patently-O%29&utm_content=Google+Reader)

