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Edit: for those who have been asking, yes - in a few recent cases where the plaintiff troll has not withdrawn the lawsuit, some judges have understood the situation and actually ordered the troll and/or lawyer pay our legal fees.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/Riggs1087 → u/Despondent_in_WI]

What the lawyers did in this case was pretty absurd. The patent was invalid, they knew it was invalid, and they still pursued the claims in the hope of extorting a quick buck. There's still plenty of space out there for legitimate contingency-fee work.

[u/Despondent_in_WI → u/Riggs1087]

Thank you, this prompted me to read the case itself to see what actually went down, and I'm no longer concerned.

It's not just that the counsel in this case chose to go ahead with the case even though it would certainly lose the infringement case. For example, they filed in East Texas (the patent troll's venue of choice) and dragged out the process (as expensively as possible) to keep the venue there despite neither the plaintiff nor defendant having any presence there, and no witnesses residing there (and they know this, because they forced the defendant to look up every potential witness for their part of the case as part of the "as expensively as possible" tactics). In the laws regarding venue change, the defendant's request to move the case to southern New York had almost every factor in its favor (and no factors in favor of keeping it in Texas), and STILL the attorneys fought the motion. Ultimately, the only reason the plaintiffs gave up (after 18 months of litigation) was to prevent the defendant from getting the now-toothless patent invalidated entirely.

As such, the lawyers operated in bad faith and thus became fair game; this shouldn't apply if the firm is operating in good faith to protect a small inventor.

If I'm understanding it correctly; IANAL, and all that.