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It should be noted that in most countries 'loser pays' is standard, rather than an exception. http://en.wikipedia.org/wiki/Attorney's_fee#Who_pays http://en.wi
by sandstrom 13y ago
It should be noted that in most countries 'loser pays' is standard, rather than an exception.
http://en.wikipedia.org/wiki/Attorney's_fee#Who_pays http://en.wikipedia.org/wiki/Attorney's_fee#Who_pays
I'd argue this is a sound principle, which reduces the number of abusive/frivolous cases taken to court.
- bediger4000 13y agoI think a lot of people argue that the "English Rule" makes sense. The only people I've seen argue against it are... lawyers. Unfortunately, the lawyers do have a small point, in that "loser pays" means that a less-wealthy plaintiff will probably be less likely to even file.
- sandstrom 13y agoI have no data to back this up (would be interesting to see studies on this), but wouldn't a 'loser pays' afford less-wealthy plaintiffs to file as long as their chances of winning are good? I agree that it would cause less filing among less-wealthy people/companies in some cases. But I'd also guess it would increase filings in other. (assuming they can objectively and accurately determine their chance of winning, which isn't always a reasonable assumption)
- tim333 13y agoIn the UK we have a no win no fee system where the lawyers get 25% of the winnings if they win, zero if not, so if your chances of winning are high enough you may be able to take people to court without paying. The lawyers can apparently arrange insurance against you having to pay the other sides fees. I think - I'm no expert on this.
- anigbrowl 13y agoI have mixed feeling about it, having grown up in a country where it's the norm. Yes, it does seem to reduce barratry, but it can also be used to deter legitimate plaintiffs who don't have an open-and-shut case, because a loss in court against a wealthy defendant can easily result in bankruptcy. 'Faraway hills look green,' as the proverb goes.
- AlisdairO 13y agoI've always thought loser pays 2* the lower of the two sets of fees would be a good system.
- brey 13y agonice idea, but unfortunately that then doesn't work in the patent trolling case. the troll has a clear incentive to minimise their own costs (filing hundreds of carbon-copy suits must have huge economies of scale, each one has to be cheap or their model doesn't work), but the defendant still has to spend lots to defend, with only the upside of 2 * a small amount to collect when they win.
- jpatokal 13y agoFiling a lawsuit is cheap enough. Defending in court is what's expensive, and that's what trolls rely on: pay them money and make the pain go away. The other upside to winning is that you no longer have to pay whatever the patent troll was trying to extort.
- baddox 13y agoSeems like a lot of fiddling to cover up the brokenness of the system. I think a complete lack of patents would be a good system.
- rayiner 13y agoThe legal system cannot be considered in isolation. It's part of a broader apparatus for protecting peoples' rights. Other countries have higher bars for getting into court, but they also have other mechanisms for enforcing peoples' rights. For example, European countries generally have more elaborate and burdensome regulatory regimes, and use administrative proceedings to accomplish things that in the U.S. are handled through court proceedings. A good example is products liability law. The EU products liability directive is implemented in Germany as the Appliances and Product Safety Act. It does not create civil liability to injured consumers, but instead is part of an administrative enforcement regime. Authorities actively monitor the products on the market, and have the power to issue recalls, fines, and even criminal penalties. For most areas of the law that see significant litigation (products liability, employment, etc) the U.S. either lacks such administrative entities or has undersized ones compared to what is common in Europe. In the American system, more of these issues are, consciously, left to be handled in private litigation. Essentially, in Europe you have more bureaucrats, and in America we have more lawyers. Also, note that "loser pays" countries aren't usually literally "loser pays." In France, for example, losers pay court fees, but attorney's fees are awarded by a judge in an amount that usually doesn't cover actual amounts spent.
- bediger4000 13y agoI think a little disclosure should go along with your opinion. Are you, or have you been, a practicing attorney?
- rodgerd 13y agoIf you're a small innovator facing off against IP theft by a large company, it might not look like such good news. Now you have to worry about their lawyers racking up huge bills and convincing the judge you should pay them.
- deleted 13y ago[deleted]
- Kliment 13y agoIn that situation, you're already fucked beyond all hope, and you cannot win. Typical strategy is to countersue you for infringement of something else. Patents afford exactly zero benefits to a low-resource party in all cases except acquisition (of patent or patent-holder) in which case they become weapons wielded by the bad people again.
- rayiner 13y ago> Patents afford exactly zero benefits to a low-resource party in all cases except acquisition In many (most?) acquisitions, patents are incorporated in the valuation of companies that are to be acquired, even when the purchaser is a giant entity that could probably beat the target in a patent litigation by countersuing for something else.
- Kliment 13y agoYes, precisely, at which point the low-resource entity has just given them an extra weapon to terrorize the world with.
- DanBC 13y agoLoser doesn't pay all expenses - they have to be reasonable and proportionate. People have to show good faith attempt to reduce costs.
- dredmorbius 13y agoDepends. There are cases in which small inventors have prevailed, others in which they haven't. Filo Farnsworth comes to mind among the latter.