The implementation of the America Invents Act beginning in September 2011 was intended to signal a new era of patent prosecution efficiency, and while it is too early to make definitive conclusions, it would seem as though the legislation has actually been counterproductive in reducing litigation rates.
In a recent guest column for IP Watchdog, technology executive Ron Katznelson introduced several explanations regarding the correlation between the AIA's installation and the significant uptick in patent litigation initiated in each of the past three years. First and foremost, the elimination of scenarios in which plaintiffs can assign multiple defendants to a single case has directly contributed to more individual filings. Even before the new rules went into effect, however, patent prosecution strategies were beginning to shift.
According to Financier Worldwide, news of inter partes reexamination procedures being replaced with a novel inter partes review protocol created the perception that patent challengers would have several speedy routes to call an invention's validity into question. As such, many patentees anxious over the implications of the impending legislative reforms likely increased the rate of their infringement claim filings while the legacy system was still working in their favor.
As Katznelson corroborated, the comparatively high rate of infringement lawsuits surrounding newly patented inventions suggests that patentees may have been eager to land preemptive strikes before prospective challengers were able to initiate inter partes review, post grant review or covered business method review proceedings.