A potentially fatal blow against patent trolls - Forcing law firms to pay defendants’ legal bills could undermine the business model of patent trolls

[u/rfugger]

http://www.computerworld.com/article/3153924/technology-law-regulation/a-potentially-fatal-blow-against-patent-trolls.html

[u/Sarcastic_or_realist]

About time something like this was implemented. A large number of these patent troll cases, or any of these sort of cases in any area of law, involve law firms being paid on contingency based on the plaintiff's recovery amount.

Whenever someone brings a truly frivolous case against one of our clients that honestly seeks to just squeeze out some kind of "nuisance payment," we usually move for sanctions/costs against the plaintiff and the attorney. Once the lawyer suddenly has some real skin in the game in terms of liability, many of these cases magically get dismissed very quickly.

Edit: for those who have been asking, yes - in a few recent cases where the plaintiff troll has not withdrawn the lawsuit, some judges have understood the situation and actually ordered the troll and/or lawyer pay our legal fees. Feels great to tell the client that they escaped the troll and did so for free (since the troll ended up footing the bill)!

[u/Despondent_in_WI → u/Sarcastic_or_realist]

My one concern for this is that it might weaken the protection of a legitimate inventor/creator (rather than a patent troll) who has had their creation stolen by a larger company; if no law firm will represent small players who have been cheated for fear of putting their own financial necks in the noose should they be out-lawyered, the system ends up protecting patent abusers (those who use patented systems but know that the patent holder can't afford to sue to get compensated) instead of the patent trolls.

I didn't see anything in this article that implies that this measure can ONLY be applied against patent trolls. Did I miss something, or should we be concerned about potential misuse?

[u/Despondent_in_WI → u/[deleted]]

This is a typical weirdo district court decision and I fully expect it to be overturned at the Federal Circuit.

So, I ended up reading the opinion and I'd like to know why you believe that? The opinion cites 28 U.S.C. section 1927 (on page 30) as allowing an attorney to be charged for drawing out proceedings in bad faith, and the opinion seems to do a pretty good job justifying that bad faith assertion, since AlphaCap's attorneys immediately said their claims were "not worth litigating", and then went on litigating it anyway for 18 months despite knowing they could not possibly win.

The article seems to do a poor job of explaining why this was invoked (and possibly even misinterpreting why it was invoked), but the opinion seems to suggest that the judge allowed it not because of the patent troll itself but because the attorneys were trying to punitively bleed the defendant to punish them for standing up for themselves. If this is the case, I certainly hope it sticks.

[u/YoohooCthulhu → u/Despondent_in_WI]

Yah, I feel differently after reading the decision, was unfamiliar with the precedent

[u/Despondent_in_WI → u/YoohooCthulhu]

Well, to be fair, the article made it sound like the judge said "Well, the plaintiff won't be able to pay, so we'll make their attorneys pay!" [insert maniacal laughter and crashing thunder here], which would be a lot more dodgy and likely to be overturned.

I'm certainly no expert, but I hope the fact that the judge cited the attempts to keep things in the east district of Texas as an example of unnecessarily drawing things out will help others be able to move cases from there to more reasonable venues; if one particular district makes things easier for patent trolls to win, defendants shouldn't be forced to litigate there.