Shift court fees away from innocent parties

Problem

Both the winner and loser in a patent suit almost always pay their owns fees and costs, which can total well into the millions of dollars if the case actually goes to trial. Because the potential costs are so high and there is no way to recover those costs, defendants will often settle to avoid hefty legal bills – even if they have a strong legal case that they never infringed on the patent or the patent was invalid to begin with.

Solution

Patent law should allow for the winning party, in cases where it was easy to see that the patent was invalid or there was no infringement, to obtain its fees and costs. If the trolls know they could be on the hook for that money, they will be less likely to file frivolous lawsuits.

Guest Acccount
United States
Posted Jul 4, 2012 6:50 pm
The winner in a law suit doesn't have to pay 1 penny in the counter suit.

Where did you study law?

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323 thumbs up.
Alex Burr
Individual
Cambridge
United Kingdom
Posted Sep 22, 2012 1:05 pm
  • Software developer / engineer
  • Internet user
This is a good idea. There is also another thing which filers of invalid patents should pay for, which would remove the invalid patents much faster. As you probably know, stackexchange has just introduced 'askpatents.com', a mechanism which takes advantage of the new legal provision that anyone can submit prior art to the USPTO. While a good thing, this demonstrates a negative externality: victims of dubious patents are having to take the cost of searching for prior art.

Imagine if when someone submitted prior art which invalidated a patent, the filer had to pay them a fee. If the fee was sufficient, a cottage industry of prior-art searchers would spring up. We would then get rid of many of the dubious patents even before any lawsuit.

I doubt if it could be applied to existing patents - they would almost certainly have to be grandfathered. But it would have a very useful effect going forward.
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311 thumbs up.
Luke Selman
Colour Entertainment
Bristol
United Kingdom
Posted Sep 4, 2012 7:51 pm
  • Academic
  • Software developer / engineer
  • Internet user
The whole notion of the patent system before it became this was to ensure that inventions or physical objects could be protected while it is being demonstrated to an audience that may otherwise steal the idea and create a duplicate or otherwise similar technological innovation. Now that the USPTO allows abstract ideas to be patented from the year 1987, it has ever since been a daunting and 20 year run of economic disaster, leading from all sorts of directions, including copyright wars, which I might add contributes to between 40-60% of economic loss yearly WORLDWIDE.

The amount of damage that these stupid legislative bills are doing is ridiculous, and copyright laws are just as bad as the British government promising the Jews of Germany after World War 2 Israel (which is another possible mistake causing our economic loss). However, without going too off-topic, the copyright laws not only disrupts innovation in the IT industry, but slows down the growth of the worldwide economy.

Ever since computers were ever invented, regardless of how it was supposed to aid in delivering information, has only caused millions of jobs to be lost, hundreds of thousands of businesses put at risk due to the immediate change in technology, and the only good thing that it has changed is that it opens one gate: innovating laser technology. Apart from that, computers was the technology that led us to our bad attitude in the copyright industry today.
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311 thumbs up.
Eric T
United States
Posted Sep 4, 2012 10:21 pm
  • Software developer / engineer
  • Internet user
The counter here is that small businesses and individuals with minimal or no resources take on what they believe to be a valid infringement of their intellectual property (through perhaps a lack of proper expertise due to a lack of monetary or intellectual resources) and lose, that they will be punished for trying.

What is the true definition of a troll, and more importantly here, how do we assure that they will be properly identified as such in every court room across the nation?

I foresee this backfiring on ma&pa the way it is written, while the true trolls find a way to 'validate' their claims as a proper patent holder by producing some cheap product that may or may not sell. Or by even selling it to a company they also own, creating a false image of .. legitimacy?

Also, this check box that says "check all that apply:".. The one that says "Victim of patent troll".. well I'm checking it because while I may not be a direct victim, I have been affected, and am in an 'interpret how I want' mood.
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309 thumbs up.
Aaron Morris
Pittsburgh
PA
United States
Posted Jul 10, 2012 6:23 am
  • Software developer / engineer
  • Internet user
I understand the intent of this proposal, and it certainly seems well-intentioned. However, I wonder if this wouldn't do more harm than good by making an extremely one-sided patent system (as if isn't too one-sided already).

The reason? As long as software patents exist (which I am personally not in favor of), then they should probably be capable of protecting the "small guy" type of individual patent holder. And this proposal seems like it would make it very challenging for someone with limited financial resources to pursue a patent claim against a large infringer.

For example, suppose a private developer observes a large corporation infringing on his/her patent. That developer already knows that challenging the corporation in court, with its army of lawyers, will be extremely challenging. Now imagine that the developer will AUTOMATICALLY be held liable for paying the corporation's legal fees. Will he/she pursue the patent claim? Probably not.

Now imagine a different situation in which the same private developer is being sued by the same corporation (validly or invalidly) for patent infringement. Is there any realistic deterrent to cause the corporation to refrain from suing the developer? Not really. The developer's legal expenses will be a small fine to the corporation.

That would seem like a worse patent system than what we already have: one in which legitimate inventors are deterred from protecting their patents while the large corporations really have nothing to lose. (Though I can see situations in which a large corporation suing another large corporation--think Oracle vs. Google--might be deterred by this proposal.)

Furthermore, what new value does this really provide? We already have a system that supports counter-suing. So it is possible to recoup your legal fees resulting from a frivolous lawsuit. So the only real change is the concept of AUTOMATIC liability.

However, I am an engineer, not a lawyer. So maybe someone with greater legal knowledge can weigh-in.
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299 thumbs up.
David Lee
United States
Posted Jul 14, 2012 9:18 am
  • Internet user
People have said that a rectangle with rounded corners with a screen in the middle cannot be patented because it's the only practical and ergonomic way to make a phone or a tablet. What other shapes besides a rectangle can a phone be made in? A triangle? Pyramid? Hexagon? Octagon? Dodecagon?

If a company is forced to work around a patented idea to avoid infringement, it defeats the purpose of innovation, especially if the patented idea is the bleeding obvious. As an example of this, smartphones these days are equipped with NFC chips and water-damage sensors. It's a trend that's growing among smartphone manufacturers. Apple got patents for both of these. If they decide to sue other companies which have already supplied NFC and water-damage sensor chips, wouldn't the sued companies either counter-sue or stop including these chips altogether?

This wouldn't be much of a problem if the patent owner licenses the patent at a reasonable price. Samsung was forced to remove universal search from the Galaxy S3 to avoid litigation by Apple. I am disappointed that Samsung had to downgrade a perfectly innovative phone.

I could go on and on about Apple's litigation and my opinions against it, but I'll stop with one final note: if competition is abolished via litigation, consumers will have limited choices on what to buy as their next smartphone or tablet. And that cannot happen. The patents that Apple has filed and used against other companies should be invalidated, and Apple should pay for all legal fees if it continues to use obvious patents against others.
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296 thumbs up.
G Patent
General Patent Corp.
United States
Posted Jun 26, 2012 10:13 am
This is another interesting idea. Reducing the scourge of patent trolls will require eliminating some of the trolls' (currently substantial) economic incentives. Forcing them to pay in the event of loss would quite likely go a long way toward achieving this goal.
http://www.youtube.com/watch?v=LkQELhZeDYQ
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294 thumbs up.
Steve Brewer
Dallas
United States
Posted Jun 21, 2012 8:48 am
  • Software developer / engineer
  • Internet user
I like what you're doing here, but calling certain parties trolls is counter-productive to you cause. Not every plaintif (winning or losing) is a troll. Careful with your language, this really marginalizes your cause.
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254 thumbs up.
Pete Henderson
Exton
PA
United States
Posted Jun 21, 2012 6:33 am
  • Academic
  • Software developer / engineer
  • Internet user
Allowing recovery of court costs encourages the defendant to hire a more expensive lawyer. It is a benefit to the defendant, but moreso to the lawyers. I would suggest that the law allow court costs PLUS full reversal monetary judgements, and that judges be encouraged to use them for frivolous suits. For example, If I sue you for $100,000 and the judge deems that my lawsuit is unreasonably indefensible, then the judge can rule that I have to pay you any amount up to $100,000 plus costs.
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254 thumbs up.
Daniel Theophanes
United States
Posted Jun 20, 2012 10:00 pm
  • Software developer / engineer
I think "Troll" should be replaced with "patent litigator". If litigation claims are found to be invalid, then the fees should largely be assigned the the litigator.
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243 thumbs up.

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Steve Brewer
Dallas
United States
Posted Jun 21, 2012 8:48 am
  • Software developer / engineer
  • Internet user
I like what you're doing here, but calling certain parties trolls is counter-productive to you cause. Not every plaintif (winning or losing) is a troll. Careful with your language, this really marginalizes your cause.
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254 thumbs up.
Pete Henderson
Exton
PA
United States
Posted Jun 21, 2012 6:33 am
  • Academic
  • Software developer / engineer
  • Internet user
Allowing recovery of court costs encourages the defendant to hire a more expensive lawyer. It is a benefit to the defendant, but moreso to the lawyers. I would suggest that the law allow court costs PLUS full reversal monetary judgements, and that judges be encouraged to use them for frivolous suits. For example, If I sue you for $100,000 and the judge deems that my lawsuit is unreasonably indefensible, then the judge can rule that I have to pay you any amount up to $100,000 plus costs.
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254 thumbs up.
David Piepgrass
Mentor Engineering
Calgary
Canada
Posted Jun 20, 2012 10:54 pm
  • Software developer / engineer
Apparently one of the things patent trolls do is to send nasty letters claiming infringement, and asking for license money, but refusing at first to tell the victim what patent(s) they are infringing on, let alone how they are infringing.

This behavior should be considered a show of bad faith from the plaintiff. If the plaintiff (or future plaintiff) knows about an infringement, but refuses to tell the defendant specifically what they are doing wrong, the plaintiff should forfeit any legal awards that they would have otherwise earned from keeping the defendant in the dark.

Moreover, it would be nice if something could be done about the 'protection racket' approach (where patent trolls are not aware of any infringement, and indeed don't necessarily know anything at all about the victim, but send a letter offering not to sue if the company just pays a license fee.)
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505 thumbs up.
Daniel Theophanes
United States
Posted Jun 20, 2012 10:00 pm
  • Software developer / engineer
I think "Troll" should be replaced with "patent litigator". If litigation claims are found to be invalid, then the fees should largely be assigned the the litigator.
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243 thumbs up.
Terry Ackey
United States
Posted Jun 20, 2012 6:45 pm
  • Software developer / engineer
Isn't this already the case in general for lawsuits where the losing party really shouldn't have sued in the first place? If the dispute is a reasonable one, both parties usually bear their own costs. But if the loser had no business dragging the winner into court, the loser pays the winner's legal fees and court costs.
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508 thumbs up.
Brian S
United States
Posted Jun 20, 2012 10:46 am
  • Software developer / engineer
  • Internet user
Change "trolls" to "plaintiffs". Troll is a loaded term and nobody is going to take you seriously if you use it. It's certainly an accurate description, given how patents are actually (ab)used and the companies out there whose sole purpose is to sue or settle for patent "damages", but EFF has always been much more professional and respectable than labeling.
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548 thumbs up.
Lucas Meyer
United States
Posted Jun 20, 2012 10:16 am
  • Software developer / engineer
As anyone who's been following the every-expanding morass of software patent litigation would know, a huge issue is that a lot of the patents in question are either completely unclear, or overly broad. It would be great to find a way to penalize patent trolls, anti-SLAPP style; I'm just not sure that it's that simple. For instance, take the multiple lawsuits that Apple and Samsung keep throwing at one another over smartphones...both sides have patents that they claim cover their products, and both claim that the other company's product is infringing. Not only does it take a huge amount of court time to decide which company's correct, but it doesn't seem like the courts can even come to a consensus over what patents apply to what products. For the patent system to work at all, it should be possible to tell (easily) whether a patent applies to a product or not. With software patents, this is simply not the case. And while forcing trolls to pay the defense's legal costs would be great, we'd also need better-defined rules as to which patents should be thrown out.
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522 thumbs up.
Steve Baker
Austin TX
TX
United States
Posted Jun 20, 2012 10:04 am
  • Patent owner
  • Software developer / engineer
  • Internet user
When a large company with an army of lawyers wishes to intimidate a small, but growing competitor, they can simply pull out a pile of somewhat-relevent believable-sounding patents and the mere threat of that causes a small company to roll over and give up - even though they know for 100% certainty that they are in the right. An individual or small group cannot possibly muster the legal resources to fight an Apple or a Microsoft or a Google. Even if you know that you're in the right - and (as proposed) that the other guy will pay your costs if you lose, the risk of losing due to sheer weight of lawyers is so high and the consequences so devastating - that even the promise of having your court costs covered is not enough for most people to fight it.

Patent law (by it's very nature) is not a black-and-white matter, there is tons of shades of opinion and risks that the judges or jurors won't be able to understand the (by definition) novel and complex issues involved. So there is gigantic risk in fighting - even if you know for sure that you didn't infringe a patent.

Worse still - if you're an individual writing some new piece of software, there is simply no possible way to search though every patent in existence to see if you're likely to infringe upon it. That's an impossible task for even the largest organization. Software patent infringement is 100% inevitable - even if you're the most careful, honest, law-abiding person on the planet. If you slip up - you should always have the right to say "Sorry - I won't use that code anymore" - and not face any legal liability.

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516 thumbs up.
Nathan Hourt
Rensselaer Polytechnic Institute
SEARCY
AR
United States
Posted Jun 19, 2012 11:30 pm
  • Academic
  • Software developer / engineer
  • Internet user
Patent trolls ought not get away with breaking up a target's workflow, intimidating them, wasting their time, and potentially damaging their public image for nothing but some paltry legal fees that didn't stop them from suing in the first place. When the plaintiff's claims in a patent suit are found to be invalid, the plaintiff should be required to pay to the defendant at least triple the damages they were seeking. This would serve to offset the harm done to the defendant, as well as even further reducing the risk of patent trolling. Another benefit is that it would encourage plaintiffs to think twice about whether the damages they seek in a patent suit are reasonable.
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525 thumbs up.
John Galt
Sacramento
CA
United States
Posted Jun 19, 2012 6:15 pm
  • Software developer / engineer
  • Internet user
The US is the last so-called civilized nation on earth that doesn't have a loser-pays rule for all plaintiffs in all civil cases. That is only the beginning of the reforms needed.

Marc Randazza brags about how when he files a plaintiff's case (usually against anyone running BitTorrent), he's already gotten the police to tear apart the defendant's house and steal all his computers and backups. Clearly, there needs to be better due process -- not only a warrant beforehand, but a requirement that the police agency and/or the complainant pay restitution for all damage unless they convict *ALL* the affected persons of crimes serious enough to warrant the damage inflicted (and copyright infringement does NOT qualify unless the plaintiff can prove at least six-figure actual damages from that particular defendant).

In fact, this is just a subset of two much larger problems. First, the police have forgotten whom they work for, to the extent that they're willing to use all manner of force (everything from pepper spray and Tasers to no-knock midnight SWAT raids on people's homes) for trivial or even no reason, just because they feel like it. Second, the federal government is encouraging these practices by financing every podunk town police department to have its own SWAT team, plus riot gear, heavy weapons, and tanks. This is nothing less than a declaration of war against the American people, and it's one we'd better put a good hard stop to on election day before they stop letting us have elections.

I apologize for going beyond the topic of IP, but it needed to be said.
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532 thumbs up.

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