Thursday, March 26, 2015

Fortune piece favorable to Goodlatte Innovation bill; "loser pays" part glossed over

Jeff Roberts of a Fortune presents a piece favorable to the Innovation bill of Goodlatte in the post

CEOs tell Congress: Patent trolls are giving us the shakedown


Curiously, Roberts did not focus on the controversy about fee-shifting:


One of these measures would require patent plaintiffs to spell out how exactly a company is infringing their invention. Currently, trolls operate by sending out generic complaints that do little more than list the patent and say that a company’s products are infringing it. Oftentimes, the defendant must wade into costly legal quicksand simply to find out what the troll is talking about.
Other reform measures would put time or cost limits on discovery, which is the legal process in which parties to a lawsuit furnish documents and testimony, as well as make it easier for a successful defendant to recoup legal fees from a troll.
Another part of the Innovation Act would make it easier for companies to shield downstream customers from troll attacks. This would be a change from current rules that let patent owners sue anyone in the supply chain – meaning that they can sue not only a manufacturer of an infringing product, but any retail shop or end user too.


As to -- make it easier for a successful defendant to recoup legal fees from a troll. --, one notes

#1.  Current law provides fee-shifting for exceptional (i.e., unreasonable) lawsuits, but the default
in the absence of such showing is that each side pays its own fees.

#2.  The proposed Innovation Act provides a default that loser pays UNLESS loser shows not unreasonable.  This provision is NOT specific to entities that might be deemed trolls, but covers all "losers," which might in some cases include universities and small businesses.  The provision is not specifically tailored to the troll problem and will impact many "innocent bystanders," thereby creating much collateral damage.   The "loser pays" provision is NOT in the STRONG bill of Senator Coons (D-Del).


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