Patent Misjoinder

The Leahy-Smith America Invents Act effectively repealed aspects of the Federal Rules of Civil Procedure by creating a new statutory section governing joinder of accused infringers and consolidation of actions for trial in most patent infringement cases. This new law codifies a substantial barrier to joinder and consolidation, contradicting two of the primary policies embraced by the drafters of the Federal Rules of Civil Procedure: the promotion of liberal standards both for evaluating the sufficiency of pleadings and for evaluating the propriety of joinder of parties. Remarkably, the new statutory section does so despite the absence of any detailed scholarly analysis prior to its enactment regarding these issues, sparse legislative history analyzing perceived problems with the relevant Federal Rules of Civil Procedure, or any consideration of the new statutory section by the Supreme Court’s Advisory Committee on Civil Rules. This Article provides the necessary, missing, comprehensive analysis of the reasons for the enactment of the new statutory section, the competing policies animating it and the Federal Rules of Civil Procedure, and its appropriate interpretation and application