New: Patent Litigation Attorneys’ Fees: Shifting from Status to Conduct
Author: Daniel Roth
Abstract: Abusive patent assertion results in dead weight costs to society. Faced with the high cost of patent litigation, companies often settle for a fraction of the cost of defending a patent infringement suit. This allows the patent owner to extract settlements from many individuals without the risk of invalidation before a federal court.
Shifting attorneys’ fees to the prevailing party is a remedy courts award in exceptional cases to deter patent owners from bringing unreasonable claims of infringement and to return defendants to their position prior to litigation. Current proposals target patent assertion entities rather than scrutinizing the heart of the claim of infringement: the patent claims and the activities of the accused infringer. This article analyzes the history of fee shifting in patent cases and examines the proposed SHIELD Act.
The article describes the problems with the proposed legislation’s definition of disfavored patent plaintiffs, bad actors, and the loser-pays rule. The article concludes by proposing a solution, which modifies the standard for shifting attorneys under 35 U.S.C. § 285.