4 ms·

It's really too bad that it's so difficult to recoup these costs, especially in patent cases. It would be quite the disincentive to NPEs if they had to make a d

It's really too bad that it's so difficult to recoup these costs, especially in patent cases. It would be quite the disincentive to NPEs if they had to make a double-or-nothing bet every time they litigated over a patent they didn't actually use. That is to say nothing of the insanity of US patents and the concomitant trolls, but it would be a small change for the good if the NPEs/trolls had to pay fees if they lost.

monochromatic 12y ago
Maybe the U.S. should switch to loser-pays in general, but I don't think it makes sense to make patent litigation a special case.
- michaelt 12y ago
  If you have loser-pays without spending caps, a big corporation can scare off small litigants by using expensive, inefficient law firms so a loss would be hugely expensive. If you were a minimum-wage worker injured by unsafe working conditions at a $BIGCORP warehouse, would you sue if you knew you'd have to pay a million dollars if you lost, because they have ten $1000-an-hour lawyers doing photocopying and filing, and there was a 1% chance you'd lose due to random chance? What you really need is German style fixed fee litigation; neither party should have to pay more than $5,000 in fees of any type. After all, if the courts can't figure out whether a patent is valid and infringed upon for $5,000 how is anyone supposed to?
  - will_brown 12y ago
    FYI even under the current system where the statute or a contract provides the the winner gets their fees paid by the loser (generally called prevailing party fees), the fees must be "proven" to be "reasonable". So a "inefficient" law firm does not simply say my fees are $x and they get paid, the Court holds a hearing in which other lawyers who are certified as experts on fees come in an testify regarding what a reasonable fee would be with the type of case, the lawyer(s) experience, the number of hours, ect... Your other point is well taken and the potential to be liable for the other sides fees is a deterrent, but that is the purpose of prevailing party fees, to encourage both sides to resolve the dispute without litigation. To some degree they also permit the little guy to get representation when otherwise they could not afford an attorney.
    - michaelt 12y ago
      under the current system [...] the fees must be "proven" to be "reasonable" According to [1] in 2013 the median cost of litigating a patent with less than $1,000,000 at stake was $700,000. Seems to me unreasonably high costs are already the industry standard. [1] http://dlj.law.duke.edu/2014/04/what-patent-attorney-fee-awards-really-look-like/ http://dlj.law.duke.edu/2014/04/what-patent-attorney-fee-awa...
ploxiln 12y ago
I just wish the court system was faster and less expensive. It would be fine if you paid a lawyer for a day or two of preparation, walked into the court room about a month after the case was officially brought, and had the stupid patent suits thrown out after a couple of hours in there. "Wow that's a fancy lawyer you brought. Too bad this patent is clearly bullshit. NEXT" EDIT: also, cheers to Vizio and NewEgg, for never settling
- dikaiosune 12y ago
  I agree, although if we continue a thread of trying to identify common sense replacements for expensive and convoluted elements of our legal system, we'll be here quite a while.
  - spacemanmatt 12y ago
    Yup. If we could solve it in a comment venue, Slashdot woulda been nominated King-God-Emperor decades ago.
- Lorento 12y ago
  A small part of the problem is non-lawyers not being allowed to offer legal advice. So for trivial cases, you get people paying thousands for a lawyer to tell them what stackexchange would have done for free in any other field.
  - MrBuddyCasino 12y ago
    Its the same in Germany. I guess thats what you get for having lawyers as politicians.
    - throwawaykf05 12y ago
      My understanding about patent cases in Germany, though, is that they are almost wholly decided by technical judges. This removes the costs and uncertainty of having a lay jury making decisions about things they cannot hope to understand.
enjo 12y ago
It would seem ideal if we could come up with a system in which your activity in court would lead to additional liability when you lose. In other words: the more you sue the more you will find yourself culpable for fees. The little guy who files one or two claims? He's fine. The trolls? Those guys pay.
- eru 12y ago
  Each shell corporation only needs to bring one suit.
enjo 12y ago
It would seem ideal if we could come up with a system in which your activity in court would lead to additional liability when you lose. In other words: the more you sue the more you will find yourself culpable for fees. The little guy who files one or two claims? He's fine. The trolls? Those guys pay.

monochromatic 12y ago

Maybe the U.S. should switch to loser-pays in general, but I don't think it makes sense to make patent litigation a special case.

michaelt 12y ago
If you have loser-pays without spending caps, a big corporation can scare off small litigants by using expensive, inefficient law firms so a loss would be hugely expensive. If you were a minimum-wage worker injured by unsafe working conditions at a $BIGCORP warehouse, would you sue if you knew you'd have to pay a million dollars if you lost, because they have ten $1000-an-hour lawyers doing photocopying and filing, and there was a 1% chance you'd lose due to random chance? What you really need is German style fixed fee litigation; neither party should have to pay more than $5,000 in fees of any type. After all, if the courts can't figure out whether a patent is valid and infringed upon for $5,000 how is anyone supposed to?
- will_brown 12y ago
  FYI even under the current system where the statute or a contract provides the the winner gets their fees paid by the loser (generally called prevailing party fees), the fees must be "proven" to be "reasonable". So a "inefficient" law firm does not simply say my fees are $x and they get paid, the Court holds a hearing in which other lawyers who are certified as experts on fees come in an testify regarding what a reasonable fee would be with the type of case, the lawyer(s) experience, the number of hours, ect... Your other point is well taken and the potential to be liable for the other sides fees is a deterrent, but that is the purpose of prevailing party fees, to encourage both sides to resolve the dispute without litigation. To some degree they also permit the little guy to get representation when otherwise they could not afford an attorney.
  - michaelt 12y ago
    under the current system [...] the fees must be "proven" to be "reasonable" According to [1] in 2013 the median cost of litigating a patent with less than $1,000,000 at stake was $700,000. Seems to me unreasonably high costs are already the industry standard. [1] http://dlj.law.duke.edu/2014/04/what-patent-attorney-fee-awards-really-look-like/ http://dlj.law.duke.edu/2014/04/what-patent-attorney-fee-awa...

ploxiln 12y ago

I just wish the court system was faster and less expensive. It would be fine if you paid a lawyer for a day or two of preparation, walked into the court room about a month after the case was officially brought, and had the stupid patent suits thrown out after a couple of hours in there. "Wow that's a fancy lawyer you brought. Too bad this patent is clearly bullshit. NEXT" EDIT: also, cheers to Vizio and NewEgg, for never settling

dikaiosune 12y ago
I agree, although if we continue a thread of trying to identify common sense replacements for expensive and convoluted elements of our legal system, we'll be here quite a while.
- spacemanmatt 12y ago
  Yup. If we could solve it in a comment venue, Slashdot woulda been nominated King-God-Emperor decades ago.
Lorento 12y ago
A small part of the problem is non-lawyers not being allowed to offer legal advice. So for trivial cases, you get people paying thousands for a lawyer to tell them what stackexchange would have done for free in any other field.
- MrBuddyCasino 12y ago
  Its the same in Germany. I guess thats what you get for having lawyers as politicians.
  - throwawaykf05 12y ago
    My understanding about patent cases in Germany, though, is that they are almost wholly decided by technical judges. This removes the costs and uncertainty of having a lay jury making decisions about things they cannot hope to understand.

enjo 12y ago

It would seem ideal if we could come up with a system in which your activity in court would lead to additional liability when you lose. In other words: the more you sue the more you will find yourself culpable for fees. The little guy who files one or two claims? He's fine. The trolls? Those guys pay.

eru 12y ago
Each shell corporation only needs to bring one suit.

enjo 12y ago