By Jeff Morgan of Barnes & Thornburg LLP
In this era of starkly divided government, where ideological battle lines are clearly drawn, there is something unsettling, almost eerie, at the sight of Republicans and Democrats cooperating with each other. Is there something that both parties distrust more than each other? The answer appears to be yes: Patent Assertion Entities (more colloquially called "patent trolls").
If assertions of inequitable conduct in patent litigation had been a "plague" in the 1980s and 90s, Burlington Indus., Inc. v. Dayco Corp., 849 F.3d 1418, 1422 (Fed. Cir. 1988), the plague of the 21st Century appears to be patent troll litigation. In a recent report issued from the White House, litigation brought by patent trolls has "increased dramatically in recent years"--accounting for 62% of all patent litigations brought in 2012. Patent Assertion and U.S. Innovation, Exec. Office of the Pres., at 5 (June 2013) (hereinafter, “Patent Report”), available at: http://www.whitehouse.gov/sites/default/files/docs/patent_report.pdf
That 2012 figure may be inflated, due in part to the anti-joinder rules instituted by the America Invents Act (“AIA”). Beginning on September 16, 2011, the AIA precluded a patent owner from joining multiple defendants in a single action unless the defendants w...
