IPO Supports Attorney Fee-Shifting, Opposes PTO Authority

The Intellectual Property Owner’s Association (IPO) has taken a new stand on patent reform through its passage of three specific resolutions in reaction to the pending Senate bill S.3818 that had been supported by Senators Hatch and Leahy. Resolutions:

(1) supporting a requirement that a court award attorney fees to the winning party in most patent cases; [fees “shall” be awarded unless the losing position was “substantially justified”or if the award would be unjust because of special circumstances].

(2) opposing any change to give substantive rule-making authority to the USPTO; and

(3) opposing any right for an interlocutory appeal from claim construction decisions in patent litigation. 

IPO is the major US trade organization representing the intellectual property owners (with a focus on patents).  Although traditionally, IPO supported very strong patent rights, more recently the organization’s membership has come to a more balanced position.  Of course the balance of power within the IPO is still highly shifted toward large property owners.  This tilt comes-out in the IPO’s support of the fee-shifting loser-pays rule (something similar to the English Rule).  The English Rule is thought to be a killer for contingency fee litigation and gives a big incentive for (traditionally well monied) defendants to drive up litigation costs even further. 

It is also intriguing that the IPO opposes granting the PTO rule making authority. This indicates that, contrary to popular perception, the PTO regulatory behemoth has not been “captured” by industry. Rather, industry believes that it will have more success shaping the law through the courts and through congress than it would in lobbying the PTO director and the Administration.

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15 thoughts on “IPO Supports Attorney Fee-Shifting, Opposes PTO Authority

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  2. Greg Crawford

    There is precedence for malicious prosecution. I’d be happy to discuss it with you. My email is thomas.mee(at)meefog.com. Send me an email with an outline of your situation and I’d be happy to help. I’m also looking into RICO claims, interesting potential there. – Thomas

  3. NALFA is a membership association of qualified experts that engage in the practice of reviewing, analyzing, and evaluating attorney fees. We help patent attorneys in fee-shifting cases by having prevailing party’s attorney fees evaluated for reasonableness.

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  4. Alun Palmer

    I am very interested if you have found any precedence of a malicious prosecution lawsuit with an underlying infringement suit. We are in the same sort of situation as you are. I would appreciate any information that you can provide.

  5. Professor Universitario in Argentina
    By Eduardo Marcelo Cocca (*)

    We must have in sure if we want an artisan university education, amateur, or an education into the hands of true professionals in fact and of right, as it corresponds and we deserve ourselves, and mainly in a serious country in, where it must reign over all the State of Right, to all we must prohang so that its exercise, is not an expression of desires, but a reality, to which all without no doubt we aspired.

    The habitual thing, as much in universities you publish like private and with the consent of its authorities, Professors Universitarios, they are only in fact, they hold a degree race as much and they as the authorities, consider sufficient merit to qualify them like professors, in open contradiction with the laws that regulate the exercise of the profession, L.E.S. Art. 36, Penal Code, etc.

    From a strictly legal point of view we are as opposed to a flagrant violation of the law, penal crimes including, I believe that it is not necessary to remember that all citizen has obligation to know the law, nor that to say if he is lawyers.

    Displeased and gladly as much you participate necessary, like authorities that they name in these positions, are incursas in crime, to remember CP, when it says that that it designates to us somebody without I title sufficient, we can close the eyes or to watch for another side, as we have done until now, but later nonos we complain the results or we look for expiatorios chivos in the secondary school, when the true problem, nucleus of this question is the same university, that sure handled by amateurs and nontrue professionals, titleholders the results cannot be other that those that they are exhibited, lamentably.

    The National State, through Ministry of Education grants as it corresponds, authorization to different universities you publish and private, the permission for the postgraduate of Professor Universitario and later granting of I title corresponding, after attended and approved curricula it specifies of the race.

    However, the great majority of the professionals who exert like educational college students, except for rare exceptions, lacks I title of Professor Universitario.

    Professor Universitario, when this in class in front of the pupils, not this in quality of lawyer, judge, doctor, engineer, etc., but acting as and carrying out the roll of Professor Universitario, and for which and he falls of mature which its race of degree is not sufficient for the professional exercise like Professor Universitario, as marks to the common sense and the regulations to it of the laws.

    Prime facie, these professionals, without I title of Professor Universitario, would be reached about the Art. 246. – inc.1. – Usurpation of Titles. – of the Penal Code, that says: the one that exerted or will assume functions you publish without I title. – Art., 247. – According to law 24527. – Usurpation of Titles, – Penal Code. – that says: the one that it will exert own acts of a profession ……, without having I title …… and soon it says: the one that arrogare academic degrees, professional titles or honors that will not correspond to him. The law of Superior Education N* 24521, Art. 36, say to us: the educational ones of all the categories must have I title equal college student of or superior level to that in which they exert teaching ………, that is that if they exert like Professor Universitario, as taxativamente marks the law to it, must have I title of Professor Universitario, in addition to I title of the degree race that qualifies it in the specialty.

    The universities grant I title of Professor Titular, Associate, Associate or Head of Practical Works. Him memory although seems a truth of Perogrullo, to accede to I title of Professor Universitario, is necessary to attend and to approve certain curricula. The law of Superior Education, that the one that norm, contains and gives legal frame to the universities, nor even in the paragraph referred to the university autonomy, says nowhere that these can name any professional with I title insufficient like Professor Universitario.

    From the point of view of the Right, we suppose that somebody that exerts the profession of Lawyer, but does not know that it is the Civil Code, nor that it was Vélez Sarsfield, with complete certainty no lawyer would accept this situation, nevertheless most of Professors Universitarios (in fact), they do not know whom was Amos Comenius, nor whom to say of its “Magna Didactics”, or even but in our days, the colleague Abogado and Pedagogo Paulo Freire, perhaps but the important one in the history of the Latin American education, with his text celebrates” the Pedagogía of the Pressed one “.

    Professor Universitario, has the prevailing obligation to know, perfectly and deeply, didactic currents, so that in agreement with his loyal one to know and to understand, and after all the pertinent analyses, they will enlist themselves in the conductista current, humanist, mixed constructivista or, or even some personal elaboration based on knowledge that the specialists elaborated day to day, for those to which really he concerns the university education to us we water.

    The same he happens to as it is the education methodology, which we will apply with the pupils, will be linear, concentric or espiralada, the handling of anyone of these techniques, must be something so habitual for the true professional, who fulfills the roll of Professor Universitario, like speaking or writing for anyone of us.

    The exposed thing until here, does not get to be nor the end of iceberg.

    Then gentlemen of once `by all to arrived moment to put us trousers long, and that we assume like cannot be of another way, that cannot be exerted a profession, nor to be a professional of the same one without I title habilitarte.

    Like colofón and to leave obviously demonstrated all the exposed one up to here, we say that every month we received alms, to which the universities call pays, and the remunerations are for Junior instructor, jtp, associate, associated or to title, I insist to anyone of these categories arrived by a magical varita that inmerecidamente I inmerecidamente designate them against of all the laws of the sector I even reiterate the Penal Code, that in this case do not act its as preventive like would have and all we are waiting for the unrestricted fulfillment of the norm Would be desirable, that the competent authorities and giving a term of 24 or 36 months, so that present Professors Universitarios in fact, become Professors Universitarios in fact and of right, for own pride and of all the educative community.

    Subjects to debate Professors Right Universitarios in fact or in fact and of Professors Professional Universitarios of the education or amateurs of the university education

    Bibliography Law of Superior Education Nro. 24521 Argentine Penal Code

    (*) Solicitor, Lawyer and Professor Universitario.Docente with the position of Head of Practical Works, during 24 months, in the Faculty of Right of the Hill University of Zamora, in chair the Social and Right Latin American Reality. Educational in the Faculty of Right, the Maimonides University, in the chair of Enterprise Right (Straight Constitutional direction). Educational in charge of the chairs “Economy and Legislation “and Exercise and Pharmaceutical Administration” in the University Kennedy. Educational of Legislation and Customs Practice in the University Kennedy. Educational of Administrative Right in the University Kennedy. Professor Adjunto, of Political Economy, in the race of Law of the Inter-American Open University. Professor of Legal Aspects of Computer science, the Lic. in Computer science Systems, the University Kennedy. Professor Universitario, withdrawn like so, of the University Teaching staff of the Maimonides University. Colegiado, registered in the School I publish of Lawyers of the Federal Capital (Volume 74; Folio 0976) and in the Federal Camera De Apelaciones of the Silver (Supreme Court of Justice of the Nation), (Volume 201; Folio 795)

    Personal page Prof. Cocca

    envoy by Eduardo Marcelo Cocca

  6. A very large US corporation sued my small company for patent infringement. We prevailed at trial; all asserted claims were found either not infringed or invalid, or both. Mostly both. The plaintiff took nothing. The lawsuit cost my company $3 million (cash) and nearly bankrupted us. I believe the patent holder sued us because they thought we could not, or would not, defend ourselves. Proving “exceptional circumstances” with “clear and convincing evidence” is very difficult. We were unable to do it. The patent holder wanted royalties that would have gutted my business. We were justifiably focused only on winning, not on proving exceptional circumstance. We’re now suing them for malicious prosecution. I hope to send a very strong message to corporate America (and patent trolls) that they better think very carefully before dragging innocent people into multimillion-dollar lawsuits. A large award of compensatory and punitive damages might do the trick. Fee shifting sounds like a pretty good idea to me. I doubt we would have been sued if it had been in-force at the time. Does anyone here know of other malicious prosecution lawsuits with an underlying infringement suit?

  7. I’ve never practiced in the UK, and I am not even a lawyer, being a mere patent agent. However, I am English, and my observation as an ordinary citizen is that the ‘English Rule’ makes the country less litigous, but OTOH makes it much harder for anyone to sue large corporations when they have a genuine wrong.

    Contingency fees were not permitted atall at one time, and I think may now be allowed but not for a percentage of damages. This, of course, kills the main incentive for taking contingency cases in the first place.

    I may be wrong and/or out of date, but as I don’t see anyone else posting from over there, so that’s my two penn’orth for what it’s worth (as opposed to my two cents).

  8. “Does anyone in the Chicago area know of details concerning the shooting at Wood, Phillips, Katz, Clark & Mortimer?”

    There’s a statment here:
    link to woodphillips.com

    Funny, I expected this to be big news on the blogs today.

  9. Hi Dennis, go to Fires of Genius to see something more from me on this subject. In answer to your questions:

    2) No. I am not a UK litigator. I don’t know how many contingency fees cases are running in UK. But Wragge.com will know, for it is from that firm that I got the scheme that I just put up on the Fires site. We should look to Wragge for figures, how many such cases they have run. Or ask Gregor Grant, who used to be with Wragge but now runs the Marks & Clerk litigation arm. Is he doing the same thing at M&C?

    3) When Wragge bets their own firm on the case, that’s enough for the insurance companies. Little Guy can then solicit competitive insurance quotes. As far as I know, Europe remains deeeeply sceptical of insurance against unknown future patent litigation costs. In the scheme I set out on Fires, is that Wragge’s confidence in winning that renders the specific risk assessable and acceptable.

    I don’t know whether the Wragge way is transferable to the US market. Through your pages, I hope to find out.

  10. Does anyone in the Chicago area know of details concerning the shooting at Wood, Phillips, Katz, Clark & Mortimer?

  11. Good Points Max –
    1) I’ll provide some cites when I get back to those who believe that it is a “killer.”
    2) Do you have any sense on how robust the contingency fee market is in the UK?
    3) Are the costs controlled enough to allow for a market in litigation insurance? (Something that has largely escaped the US market).

  12. Isn’t the passive voice useful sometimes?News to me that the “English Rule” is “thought” a killer for financing litigation through contingency fees. Who’s busy doing that particular piece of thinking then Dennis? Why don’t we all just ask any prominent English litigation law firm how, in England today, contingency fee arrangements are used to finance real life actual current English patent litigation.

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