This past December, the feature article in our e-newsletter, Wealth of Ideas, detailed several ways that the America Invents Act has basically backfired on the American patent system. (See "America Invents Act Turns Out to Be a Law of Unintended Consequences".)
Sure, the AIA has given big business a significant gift in the form of the change to a first-to-file patent system. And yes, the anti-joinder provision has led to a sharp surge in patent lawsuit filings because patent owners are no longer allowed to sue multiple infringers at once. (That was supposed to scare "patent trolls" away from the court system, but seems to have only created more lawsuits.)
Now Ron Katznelson, writing for the IP Watchdog blog, has identified other reasons for the sharp increase in patent lawsuit filings - and though it's not all about the anti-joinder rule, it sure as heck is a consequence of the AIA.
Katznelson observes that the patent lawsuit filings are "dominated by newly issued patents." Why would that be? He theorizes that "the AIA-created administrative proceedings of Inter Partes Review (IPR), Post Grant Review (PGR), and the Transitional Program for Covered Business Method Patents (TPCB), which is governed by PGR rules" have a lot to do with it.
If a patentee files suit for patent infringement within three months of the patent issuing, then the court may not stay a motion for preliminary injunction based on the existence of a PGR or TPCB petition. So it behooves patent owners to find infringers and file suit as quickly as possible - and of course, against each infringer individually.
"It is ironic and perhaps predictable that it is the AIA that appears to be the dominant cause of the recent major uptick in patent lawsuits," Katznelson concludes. Isn't the AIA great?