As reported in this column on Sept. 19, 2011, the “Leahy-Smith America Invents Act” (AIA) revitalized the Patent Act in many ways, but none more immediate than Section 19, and the addition of 35 U.S.C. §299, which prohibits joinder of accused infringers into one pleading “ based solely on allegations that they each have infringed the patent or patents in suit.” This effectively haltedas of the act’s enactment last yearthe filing of complaints naming dozens of unrelated defendants in the same action. But, what happens after the complaint is filed? Can separate actions be consolidated for discovery purposes and/or trial? The Federal Rules of Civil Procedure and the AIA answer these questions explicitly and affirmatively, but only under certaincircumstances.
Specifically, under §299, for instance, joinder in one action as defendants and consolidation of separate actions for trial can occur only if: (1) any right to relief is asserted “with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences relating to…the same accused product or process; and (2) questions of fact common to all defendants or counterclaim defendants will arise in the action.”
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