Patent Misjoinder

77 Pages Posted: 11 Nov 2011 Last revised: 16 Jan 2016

See all articles by David O. Taylor

David O. Taylor

Southern Methodist University - Dedman School of Law

Date Written: March 1, 2012


The Leahy-Smith America Invents Act effectively repealed aspects of the Federal Rules of Civil Procedure by creating a new statutory section governing joinder of accused infringers and consolidation of actions for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.

Keywords: America Invents Act, patent law, joinder, misjoinder, consolidation, civil procedure

Suggested Citation

Taylor, David O., Patent Misjoinder (March 1, 2012). New York University Law Review, Vol. 88:652, May 2013, SMU Dedman School of Law Legal Studies Research Paper No. 200, Available at SSRN: or

David O. Taylor (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States


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