Sasha Rao and Barna De of Ropes & Gray LLP1
The Leahy-Smith America Invents Act (AIA) prohibits joining multiple defendants in one case or consolidating multiple cases for trial "based solely on allegations that they each have infringed the patent or patents in suit."2 This section of the AIA, however, applies only to lawsuits filed on or after September 16, 2011. The District of Delaware recently confirmed this date restriction, emphasizing that the AIA's joinder provision "is not 'an intervening change in controlling law'" for lawsuits filed prior to September 16, 2011.3
On September 15, 2011, the day before the AIA's joinder provision went into effect, at least 54 patent cases, involving over 800 entities, were filed.4 What happens then to these lawsuits filed on this date? That is, if a non-practicing entity (NPE) sued a software company on September 15, 2011, what strategies can the software company employ in defending this suit?
According to 2011 case law, one possible strategy is to file a motion to transfer that highlights the difference between the technology and accused products in the instant case versus the NPE's prior cases ...