Increased Patent Litigation in the District of Delaware?

Following last month’s enactment of the Leahy-Smith America Invents Act (“AIA”), significant limitations on multidefendant infringement suits are now in effect. Specifically, the joinder provision of the AIA, 35 U.S.C. § 299, permits accused infringers to be joined in one action only if any right to relief is asserted against the parties jointly, severally, or arising out of the same transactions or occurrences; and, common questions of fact as to all defendants will arise in the case. Simply put, patentees can no longer sue multiple defendants in the same litigation based solely on allegations that they each have infringed the patent(s)- in-suit.

This provision was seemingly drafted to stem litigious practices by non-practicing entities (“NPEs,” sometimes called “patent trolls”) who name multiple defendants in order to press for nuisance value settlements. It likely will have immediate effects on the geographic distribution of patent infringement filings going forward. Notably, some practitioners believe the Eastern District of Texas — a one time hotbed for multi-defendant litigations — might see a decrease in such actions, with many of those suits instead being filed in Delaware, the State of incorporation for many litigants, as reported in IP Law360. Contesting venue in the District of Delaware would be an uphill battle for those entities already incorporated in the First State.

The District of Delaware already is a well-respected and busy patent lawsuit venue, with seasoned jurists and a modern, accessible courthouse in a metropolitan area. Gibbons P.C., with offices in Delaware, New Jersey, New York and Pennsylvania will continue to stay at the forefront of this and other AIA-related developments, and remains available to counsel on all aspects of intellectual property law.

Todd M. Nosher, a former Associate in the Gibbons Intellectual Property Department, authored this post.
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