Summary of new patent bill (America Invests Act)

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.

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.

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.

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.

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?