4 ms·

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...

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...