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Patent Law and Fees

File:Sonia Sotomayor 7 in robe, 2009.jpg


The U.S. Supreme Court issued three decisions on the morning of April 29th. One of these, the one that got all the press, concerned certain air-pollution rules by the EPA. The rules survived a challenge from the affected utilities.


The other two involved the fee-shifting provision of the Patent Act. It seems to me that these decisions address the trolling problem in patent law.


In preparing to write this blog entry I discovered that I have never yet used the word "troll" in a patent-law context in the history of Jamesian Philosophy Refreshed. I'm happy to remedy that defect now. Troll, troll, troll.


In the precursor to this blog, Pragmatism Refreshed, I used the word often, as here for example, or here.


Anyway, in patent-law circles a "troll" is a person or entity that collects patents without operational intention. The only reason to hold these patents at all is to engage in or threaten litigation over them. That is, to some of us, a sufficiently suspect business model to deserve the unflattering monosyllable "troll."


Often the lawsuits are based upon vaguely worded patents, or the lawsuits stretch such specifics as do exist in order to bring their suit. They get away with it because litigation is expensive, and firms often settle rather than fight. Even a modest-sized settlement is a win since the costs of running a patent.


Hence the two decisions Tuesday. They seem aimed at making it more likely that those who stand and fight and successfully defeat a trollish claim will find that the fight was worthwhile. And, at the margins anyway, that should reduce the number of times the fight ha to be undertaken.


The language of the fee-shifting provision turns on the word "exceptional." As in, "The court in exceptional cases may award reasonable attorney fees to the prevailing party." The court was unanimous in both cases, and in both cases spoke through Justice Sotomayor.


A good day's work for the wise Latina.













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Comments

  1. AnonymousMay 3, 2014 at 12:26 PM

    Like Edison, Tesla, and Bell. If we treated actors the same way, they would have to won a production company to act or writers would have to own a publishing house. This attitude against professional inventors is illogical and just an excuse by large corporations to steal the work of inventors.

    ReplyDelete
  2. ChristopherMay 3, 2014 at 1:38 PM

    WHO or what is "like Edison" etc.? It isn't at all clear what you're attempting to say here.

    ReplyDelete

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