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As a lawyer I'm always concerned about changes designed to make it harder to sue someone. You almost always end up with unintended consequences. Take for exampl

by rarw 13y ago

As a lawyer I'm always concerned about changes designed to make it harder to sue someone. You almost always end up with unintended consequences. Take for example the heightened pleading standard. This standard has been used with other case types in which the allegations are considered dangerous to one's reputation, like fraud or discrimination. In many situations, people with legitimate claims have been unable to overcome the heightened pleading standard, not because their claim is weak, but because the evidence required to plead the claim is difficult to come by. Many of the changes suggested by the article can already be accomplished using existing procedural devices. The only provision I see as having any teeth is the one that deals with fee shifting. Fee shifting provisons are a big deal as recoving attorneys fees is very rare in the American legal system. Generally fee shifting provisions allow the winner to collect legal fees even if nominal damages (e.g. $1) are awarded. This greatly increases the risk of trolling since any loss, no matter how small, could equal hundreds or thousands (probably millions) of dollars in legal fees owed to the other side.

hotpockets 13y ago
Will fee shifting make it too risky for small companies to protect their IP?
- chum 13y ago
  Some have proposed a sort of patent "small claims" court to address these issues: http://www.uspto.gov/ip/global/patents/comments/patent_small_claims_court_rev_3.pdf http://www.uspto.gov/ip/global/patents/comments/patent_small...
- rarw 13y ago
  Probably not. Enforcing a patent is expensive (as most litigation is). If this law penalized trolls who filed worthless claims but rewarded those who were legitimately being infringed on then if anything it would make it less risky.
  - hotpockets 13y ago
    It sounds like the "expected" return on litigation may be positive for small legitimate startups, so that over the long run, it might be expected to work our well for small startups. However, each individual small company may not want to risk their survival on hard-to-predict judicial idiosyncrasies.
    - rarw 13y ago
      Sure, there are always risks with litigation but in general it is not as unpredictable as outsiders think.
GeneralMayhem 13y ago
> not because their claim is weak, but because the evidence required to plead the claim is difficult to come by Could you provide an example? As a layman, I'm having trouble imagining how you could have a strong case without basic information such as what exactly the tort was.
- rarw 13y ago
  It actually happens all the time. The heightened pleading standard comes from two cases - Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009). As the Twombly court described it - The "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true." What this ends up requiring is that the plaintiff state specific factual allegations as to what the defendant is actually doing wrong. This sounds like a pretty good idea but in many cases is much more difficult than you'd think. Usually the difficultly arises because the information that supports your complaint, i.e. what the defendant is doing wrong, is totally within their control. You, as a plaintiff bringing an action, do not have access to this information until discovery starts, which is only after the complaint and an answer have been filed. Think of it this way. You have a patent. You're pretty sure, but not positive, someone is infringing on it. Without the ability to inspect the supposed infringer's facilities, how do you plead with particularity factual allegations sufficient to support an infringment claim? If the infringment is blatent, sure this is easy. But in more nuanced cases (I can't think of a technical exmaple) it is possible to end up in a siuation where actual infringment is occuring but because of an inability to access the right information there is not enough available to sufficiently plead a claim.
  - walid 13y ago
    > What this ends up requiring is that the plaintiff state specific factual allegations as to what the defendant is actually doing wrong. I'm not a lawyer but in the case of patent infringement I expect the plaintiff to be able to show said infringement. It is a technical matter that can be deduced from the product by studying its functionality. The defendant practically cannot hide infringement.
EGreg 13y ago
Could you provide some examples? I too would like to understand how a company can find it hard to find out which of their patents, for example, is being infringed -- and still have a legitimate case.
- unavoidable 13y ago
  This is actually very common in industry, especially with respect to manufacturing processes. For example, let's say you have a (presumably valid) patent on an improved manufacturing method for a drug. Maybe it's a really efficient way to mix things into pill form, giving you a cost advantage in the market. But you don't have a patent on the actual drug. If someone else makes the drug using your process, how would you actually find out? There may be a number of ways to make a product, but only one of the ways of making it is infringing. It's not like companies go around telling people the secrets of their manufacturing plant. Many manufacturing plants, especially in pharma and also in tech, have high security. And even if you could find out (let's say by corporate espionage) - that evidence may not always be admissible (or reliable) in court.
  - EGreg 13y ago
    In your example, if you have a presumably valid patent and you file a patent suit, then you can readily name the patent that is being infringed. The opposite is the famous example of lawyers from IBM basically extorting money saying "do you want us to go back to Armonk and find some patents which you DO infringe?" The implication is "pay us now and we won't make life harder for you using the legal system, because we think we can". That is not justice, nor is it in anybody's interest except the holders of many patents.
    - rarw 13y ago
      That's not really how things work. Not only is that sanctionable but extremely unethical and would result in diciplinary action if reported.
      - EGreg 13y ago
lostinpoetics 13y ago
> In many situations, people with legitimate claims have been unable to overcome the heightened pleading standard, not because their claim is weak, but because the evidence required to plead the claim is difficult to come by. the "unless the information is not reasonable [sic] accessible" really takes a lot of the teeth out of this though
gbhn 13y ago
Being careful in reforms is good, but I think the heightened pleading concern is not that big an issue here. The plaintiff is looking at their own patent and saying "this thing you did violated this part." If they don't know enough to say that, they shouldn't be in court -- either the patent is so vague they can't figure out which piece of it you violated, or how you did so, or they know, but don't want to say because uncertainty is a much stronger extortion position. Either way, getting rid of this is a good step, and an appropriate one to the subject matter.

by rarw 13y ago

hotpockets 13y ago

Will fee shifting make it too risky for small companies to protect their IP?

chum 13y ago
Some have proposed a sort of patent "small claims" court to address these issues: http://www.uspto.gov/ip/global/patents/comments/patent_small_claims_court_rev_3.pdf http://www.uspto.gov/ip/global/patents/comments/patent_small...
rarw 13y ago
Probably not. Enforcing a patent is expensive (as most litigation is). If this law penalized trolls who filed worthless claims but rewarded those who were legitimately being infringed on then if anything it would make it less risky.
- hotpockets 13y ago
  It sounds like the "expected" return on litigation may be positive for small legitimate startups, so that over the long run, it might be expected to work our well for small startups. However, each individual small company may not want to risk their survival on hard-to-predict judicial idiosyncrasies.
  - rarw 13y ago
    Sure, there are always risks with litigation but in general it is not as unpredictable as outsiders think.

GeneralMayhem 13y ago

> not because their claim is weak, but because the evidence required to plead the claim is difficult to come by Could you provide an example? As a layman, I'm having trouble imagining how you could have a strong case without basic information such as what exactly the tort was.

rarw 13y ago
It actually happens all the time. The heightened pleading standard comes from two cases - Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009). As the Twombly court described it - The "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true." What this ends up requiring is that the plaintiff state specific factual allegations as to what the defendant is actually doing wrong. This sounds like a pretty good idea but in many cases is much more difficult than you'd think. Usually the difficultly arises because the information that supports your complaint, i.e. what the defendant is doing wrong, is totally within their control. You, as a plaintiff bringing an action, do not have access to this information until discovery starts, which is only after the complaint and an answer have been filed. Think of it this way. You have a patent. You're pretty sure, but not positive, someone is infringing on it. Without the ability to inspect the supposed infringer's facilities, how do you plead with particularity factual allegations sufficient to support an infringment claim? If the infringment is blatent, sure this is easy. But in more nuanced cases (I can't think of a technical exmaple) it is possible to end up in a siuation where actual infringment is occuring but because of an inability to access the right information there is not enough available to sufficiently plead a claim.
- walid 13y ago
  > What this ends up requiring is that the plaintiff state specific factual allegations as to what the defendant is actually doing wrong. I'm not a lawyer but in the case of patent infringement I expect the plaintiff to be able to show said infringement. It is a technical matter that can be deduced from the product by studying its functionality. The defendant practically cannot hide infringement.

EGreg 13y ago

Could you provide some examples? I too would like to understand how a company can find it hard to find out which of their patents, for example, is being infringed -- and still have a legitimate case.

unavoidable 13y ago
This is actually very common in industry, especially with respect to manufacturing processes. For example, let's say you have a (presumably valid) patent on an improved manufacturing method for a drug. Maybe it's a really efficient way to mix things into pill form, giving you a cost advantage in the market. But you don't have a patent on the actual drug. If someone else makes the drug using your process, how would you actually find out? There may be a number of ways to make a product, but only one of the ways of making it is infringing. It's not like companies go around telling people the secrets of their manufacturing plant. Many manufacturing plants, especially in pharma and also in tech, have high security. And even if you could find out (let's say by corporate espionage) - that evidence may not always be admissible (or reliable) in court.
- EGreg 13y ago
  In your example, if you have a presumably valid patent and you file a patent suit, then you can readily name the patent that is being infringed. The opposite is the famous example of lawyers from IBM basically extorting money saying "do you want us to go back to Armonk and find some patents which you DO infringe?" The implication is "pay us now and we won't make life harder for you using the legal system, because we think we can". That is not justice, nor is it in anybody's interest except the holders of many patents.
  - rarw 13y ago
    That's not really how things work. Not only is that sanctionable but extremely unethical and would result in diciplinary action if reported.
    - EGreg 13y ago

lostinpoetics 13y ago

> In many situations, people with legitimate claims have been unable to overcome the heightened pleading standard, not because their claim is weak, but because the evidence required to plead the claim is difficult to come by. the "unless the information is not reasonable [sic] accessible" really takes a lot of the teeth out of this though

gbhn 13y ago

Being careful in reforms is good, but I think the heightened pleading concern is not that big an issue here. The plaintiff is looking at their own patent and saying "this thing you did violated this part." If they don't know enough to say that, they shouldn't be in court -- either the patent is so vague they can't figure out which piece of it you violated, or how you did so, or they know, but don't want to say because uncertainty is a much stronger extortion position. Either way, getting rid of this is a good step, and an appropriate one to the subject matter.