Scholarship: What Patent Attorney Fee Awards Really Look Like

By Dennis Crouch

The debate over attorney fee shifting continues both in Congress and in cases before the Supreme Court. In an interesting new article, Saurabh Vishnubhakat compiles fee award statistics for the past decade. The study reports that prevailing plaintiffs are more likely to receive a fee award, but that the median award of prevailing defendants is much higher.

Sources:

76 thoughts on “Scholarship: What Patent Attorney Fee Awards Really Look Like

  1. Still another brief, Clearinghouse Association LLC, utterly condemns State Street Bank for ushering in an era of pernicion. Numerous examples are given, from the utterly ridiculous and absurd, to the profoundly harmful. Citing Lemley, the brief points out that today’s business method patents merely have to recite a computer and an algorithm and it covers not a specific implementation or specific software but any computer and any software that achieves the claimed result. They discount Alice’s contention that the companion Nautilus case will adequately address this issue, noting that it does not solve the problem of means plus function claims that only recite an algorithm in the specification. Such claims, despite using means plus function format, remain wholly functional.

    1. That the anyone still names Judge Rich in their briefs to the Supreme Court is wonder. Association of his name with any legal proposition instantly makes that proposition suspect in the eyes of everyone not a mind-numbed robot acolyte otherwise known as a member of the AIPLA.

  2. The Brief of the American Antitrust Institute asked the court to distinguish between method and means that cause a result, and results itself. The result itself must be a beneficial change in the world.

    While the brief goes on to give many, many examples, in essence this is the MOT, but explained better and supported in the original cases particularly Corning v. Burden.

    1. LOL, Ned, should I use your own quote again about your problem with MoT needing to be taken up with the Supreme Court?

  3. Is anybody surprised? Uninvited, the Solicitor General has moved for leave to file a brief and to participate in the oral argument of Alice v. CLS Bank.

    I wonder what they have to say?

    1. The better question is whether the Solicitor General will seek to confer with the Senate-approved leader of the patent office whose job it is to formulate policy advice to the executive branch.

      Oh wait, that position is still empty…

      The Wegner Count meter hits 470 days.

    2. Excellent brief. Discussed the repeal of the business method prior use right and the passing of the CBM to illustrate that congress did not intend to endorse business methods. The brief explains that the business method prior use right was passed by Congress in reaction to State Street Bank extending patentable subject matter to anything that could use a computer, including business methods, which was unexpected.

      The brief roundly condemns the idea, advanced State Street Bank, that merely reciting a computer or article manufacture is sufficient. the brief also criticized Alice’s attempted limitation of the abstract ideas exception to generalized algorithms akin to laws of nature and natural phenomena.

      The brief emphasized that the MOT remains an important clue. The claim fails the MOT, it is likely abstract.

      The brief offers that one should analyze claims without the computer limitations. If what is left is eligible, then the addition of computer limitations does not make it less eligible. If what is left is in eligible, that is critical but to determine whether specific technological improvements are being claimed, or whether the computer components are generic.

      1. Ned, you should realize that “”Excellent brief. Discussed the repeal of the business method prior use right and the passing of the CBM to illustrate that congress did not intend to endorse business methods” is clear error as if Congress wanted to endorse business methods that would have said so.

        You display an uncanny ability to pick out the worst parts of briefs…

        1. Anon, you are just upset that the PTO did not endorse your programmed computers are eligible per se (the brief accurately states that this is the holding of State Street Bank), or that CRM’s are eligible regardless of what programs they might encode.

          Not only this, but the brief accurately cites the holding of Alappat.

          It is amazing that you cling to straws when the hurricane is blowing so hard against you — trying to pretend that your beef is with me when in fact your beef is with the Supreme Court, the US government, most major corporations, and anybody with a brain.

          In light of these later briefs, the brief filed by the AIPLA is nothing but an embarrassment to that organization. But it does represent the views of many patent attorneys. They, like Judge Rich before, are taking a last stand in favor of irrationality.

            1. LOL _ the other one who refuses to answer simple questions cheerleads Ned’s refusal to answer simple questions.

              Talk about the blind leading the blind…

          1. you are just upset

            Not at all Ned – why do you feel the need to misrepresent my position?

            Hurricane? LOL – please, you cannot even face the simple questions and the points I provide to you without running away.

            Face my points and give actual answers, then we will see who is facing a hurricane.

            1. “Hurricane? LOL – please, you cannot even face the simple questions and the points I provide to you without running away.”

              You’ll still be “asking questions” when most if not all software patents are DOA at a district court won’t you?

          2. Ned, neither of the briefs you mention (Antitrust at post 10 or Clearinghouse at post 11) even cites Alappat – how then does the brief “accurately cites the holding of Alappat“…?

            You are doing that black is white irrationality thing again.

            1. anon, Alappat is cited at page 31 of the government brief.

              Since they are citing the holding of Alappat and rather than its dicta, I presume the government means to cite the case for claiming the rasterizer.

            2. Thanks for clarifying that Ned – do you really think that you have presented what the Government is saying on that page (and the next) accurately here?

              It appears that you are not saying the same thing that the Government is saying – at all.

            3. anon, Alappat is cited at page 31 of the government brief.

              Since they are citing the holding of Alappat and rather than its dicta, I presume the government means to cite the case for claiming the rasterizer.

              Ned can you post us another link to the briefs?

          3. “It is amazing that you cling to straws when the hurricane is blowing so hard against you — trying to pretend that your beef is with me when in fact your beef is with the Supreme Court, the US government, most major corporations, and anybody with a brain.”

            You try to tell him that, but he thinks his little microcosm is like the biggest deal ever and demands “answers” from random people on the interbuts he’s never even met.

          4. “In light of these later briefs, the brief filed by the AIPLA is nothing but an embarrassment to that organization. But it does represent the views of many patent attorneys. They, like Judge Rich before, are taking a last stand in favor of irrationality.”

            Huzzah!

      2. The brief offers that one should analyze claims without the computer limitations. If what is left is eligible, then the addition of computer limitations does not make it less eligible. If what is left is in eligible, that is critical but to determine whether specific technological improvements are being claimed, or whether the computer components are generic.

        That’s a good start.

  4. Speaking of data, what did the stats show for patent filings for the second (short) month of the year? I seem to recall some suggestion that the number of suits being filed was plunging from the record highs seen in 2013 ….

      1. From Gene’s article, here are the key numbers:

        The number of new patent cases filed in January 2014 was 322

        ….The number of new patent cases filed during February 2014 was 456

        Okay, so adjusting for the additional days in January we get an “effective” 505 cases filed in February. That’s a case/day rate increase of 60% from February to January!

        Gene tries to spin this as a decline in the rates relative to the same months in 2013 but any m0r0n can see that the filing rates vary dramatically month to month so such a comparison is meaningless. The filing rates are still very high indeed and there is no indication that they are “dropping dramatically” as was suggested after January’s “blip.”

        Pretty pathetic effort by Gene there.

        1. Year over year comparison is pretty standard, Malcolm – you are trying too hard to denigrate Gene (shockers).

          Pretty pathetic alright – just not the person you think.

    1. Malcolm, may I politely suggest that the reason the number of lawsuits is falling has to do with the Supreme Court taking the Alice v. CLS Bank case.

      1. may I politely suggest that the reason the number of lawsuits is falling has to do with the Supreme Court taking the Alice v. CLS Bank case.

        The “wait and see” approach. Interesting.

      2. I have rather less hope for meaningful, helpful change from Alice than I do from Octane Fitness. Unless the court, rather out of character, does really go after software patents and/or business method patents wholesale, which is doubtful, it would be a changing of the the risk/reward ratio rules of the game which may actually affect the real world behavior of patentees with junky patents. If anything good does come from Alice, I hope its some kind of threshold test allowing a district judge to do a sua sponte mini-Markman and obviousness analysis, so 103 can be used properly prior to spending a million bucks. Should that abbreviated process result in unfair results, there is always the Fed Circuit to the actual work that they end up doing anyway.

        A little fee shifting and a quick 103 would go major distances toward useful reform without fundamental changes to the system. Then again, New Zealand rightfully killed software patents and did not detonate their economy as a result…they seem to be doing just fine…

        Yea anon, I can write your sneering comment back to this that I don’t know the LAW and Benghazi! or something…..

        1. hen again, New Zealand rightfully killed software patents and did not detonate their economy as a result…they seem to be doing just fine…

          Marty – you are drinking too much kool-aid again. Check out the actual New Zealand law (and the per se and as such wiggle room that the EP has).

          And then if you are still satisfied, you can move to New Zealand if you want.

  5. The fact that a few of these rare attorney fee awards are higher for a few defendants is explainable simply by the fact that patent suit defendants have far greater discovery burdens, and patent owners only need to prove infringement and its damages, whereas defendants have numerous other issues they need to investigate and try to prove by “clear and convincing evidence.”

    P.S. In response to comment 5 above, there are also decisions in which proposed attorney fee sanctions have been significantly reduced by judges to what they consider to be more reasonable.

    P.P.S. I think the current legislation debate on this issue is academic in view of the political challenges and the extremely small percentage of patent suits that ever even get to a final decision, much less to thereby also be able to be found to be objectively unreasonable on the part of any party. It can have no effect on the 97%+ of patent suits that are settled well before trial.

    1. Paul,

      I wholeheartedly agree with the background of your P.P.S. and for that very reason postulate that this is anything BUT academic as the legislation is very much real – just as much as it is very much misguided.

      It appears to me that your P.P.S. is seeking to dismiss the severity of the situation at hand when more focus on that severity is what should be happening.

    2. P.P.S. I think the current legislation debate on this issue is academic in view of the political challenges and the extremely small percentage of patent suits that ever even get to a final decision, much less to thereby also be able to be found to be objectively unreasonable on the part of any party. It can have no effect on the 97%+ of patent suits that are settled well before trial.

      Legislation that will increase the likelihood that a plaintiff asserting a junk patent will be severely penalized financially — not just fee-shifting but also sanctions — will certainly have an effect on settlement.

      1. Outlawing patents altogether and closing the patent office doors will also have “an effect on settlement.”

        So what?

        1. Outlawing patents altogether and closing the patent office doors will also have “an effect on settlement.” So what?

          You tell us. It’s your strawman.

          1. LOL – Notwithstanding the fact that my point is much more accurate than your race card strawman, the question was to your strawman.

      2. MM, how will that affect the vast majority of patent suit defendants who have been proven unwilling to spend millions of dollars and years of effort to defend against patent(s) all the way in litigation when the settlement offer is much cheaper?
        P.S. What WILL affect settlements is a good IPR or CBM! Their already high rate of use by patent suit defendants shows that even the previous reluctance of some trial counsel to adequately counsel their clients to use the prior PTO post grant proceedings [in spite of their vastly better odds than lay jury trials] is being rapidly overcome.

        1. how will that affect the vast majority of patent suit defendants who have been proven unwilling to spend millions of dollars and years of effort to defend against patent(s) all the way in litigation when the settlement offer is much cheaper?

          All else being equal, defendants will demand more favorable terms because the plaintiff’s risks have been increased, i.e., the value of the junk patent is decreased.

          1. MM, how is the “value” of what someone may consider a “junk” patent asserted by a PAE decreased without any adverse judgment by any court, or any PTO post-grant proceeding? It has the same (defendant litigation cost avoidance) value for settlement purposes, and if it really is so clearly invalid or infringed that even a lay jury and judge would never take it seriously [unlikely], then a rational PAE contingent fee attorney would not waste their money taking it to trial. [In contrast, after a successful IPR or CBM cancelling its claims, it has an incontestable zero value.]
            The one area where I can see stronger loser-pays sanctions possibly helping is in discouraging invalid or non-infringed patents being fully asserted through trial in the “grudge suits” that some company owners sometimes engage in against competitors or former employees. Their own trial counsel would have to warn them of the increased odds of paying their opponents attorneys as well as their own.

            1. Paul,

              Are you really expecting a rational conversation from Malcolm?

              I have not seen any recent updates, but a awhile back at the 271 blog, Peter Zura had referenced a study showing that the “Troll” portfolio typically had a higher level of quality of patent. After all, the focus on “Trolls” in that day realized that the “Troll” was purchasing assets (not in the business of prosecuting and obtaining ‘junk patents’ on a first time through the system basis), and the “Troll” (in line with your post at 6.2.2.1.1) had discretion over what to pick up.

              Of course, the archives show that Malcolm has been repeatedly informed of this inconvenient item tht does not nicely fit into his Curse-sade.

    3. MM was so right anon, your hackitude is boundless. First you say there is no such thing as “junk” patents, because patents are presumed valid. Then you quote “Peter Zura had referenced a study showing that the “Troll” portfolio typically had a higher level of quality of patent” noting that patents have a wide range of quality. Your hackness is to understand that the full range of possibility is good to great patents. Pathetic.

      1. First you say there is no such thing as “junk” patents, because patents are presumed valid.

        Not at all what I said Marty. You need to read that again.

        That I then reference a comparative study that simply identifies that the “Troll” hysteria is overblown should be taken as a good thing – not attacked (weakly) as you attempt to do.

        Wake up man – your emotional lack of control is being used – you are a tool.

  6. To me, this suggests that the current system is defacto the system that is being proposed, just with more latitude for the court. Many defendants get fees in excess of the actual cost (spare me, I know the actual costs and how they’re inflated for the court) of the attorney fees for suits that shouldn’t have been brought, and plaintiffs get very large awards for having to overcome deceptive and illegal practices by the defendants. Sounds about right.

  7. One of the articles had a really good idea that we haven’t been discussing – one way, mandatory attorney fees awards to prevailing plaintiffs if the ultimate damage award is equal to or greater than that the amount requested in the complaint or an injunction is issued. This would naturally make the requested damages by the plaintiffs much more conservative, and would promote settlements greatly.

    1. I am leery of tieing any justice-factor strictly to a monetary level.

      That way lays the abuse of Sport of Kings. That way too ignores the fact that there need be no damage level at all in order to have the right to enforce one’s personal property of a patent.

      1. That way too ignores the fact that there need be no damage level at all in order to have the right to enforce one’s personal property of a patent.

        Ned expressly identified injunctions in his comment.

          1. But my comment was my comment, not Ned’s.

            It seemed that you were responding to Ned’s comment. But now it appears you were responding to a strawman:

            strictly to a monetary level.

            Have fun.

            1. You have ‘strawman’ on the brain, Malcolm. And yes I was responding to Ned’s comment. In case this is news to you, “respond to” does not mean mirror.

            2. “respond to” does not mean mirror.

              That’s correct. It’s usually good practice if you agree with one part of someone’s statement and not the other part to make that clear, lest your response seem to have missed the point.

      2. anon, why not? If the plaintiff will get his fees paid if he is awarded the full damages asked for, don’t you think that his initial complaint will be a lot more reasonable?

        How many lawsuits are fought simply because the amount demanded is extraordinarily high? They are set high to force higher settlements, of course. But, there should be a cost for being unreasonable in one’s demands.

        Regardless, we could do this both ways: limit fee awards to a plaintiff who achieves his demand, and to defendant who offers judgment at a lower amount and prevails or where the damages are less that or equal to that proffer. But, otherwise, simply make them mandatory.

  8. If only you two and your group of tards could convince everyone else of your ridiculous unfounded assertions.

    Protip anon/EG, get your sht together. Then people might start listening to you.

    1. LOL – Wrong again and as usual 6. As has been shown many times, your belief system prevents you from understanding law and fact.

      Our “sht” is together. We can only lead you to water. We cannot force you to drink.

      We can, however, repeatedly tell you that you have been brought to the water.

    2. From Examiner Barnacle of the Circumlocution Office, scolding other people to get their act together. Can’t make this stuff up.

      1. Wait wait wait, you’re disparaging the very agency that disperses the hugely sought entitlements that you’re always wanting?

        HAHAHAHAAHAHAAHAHAAHAAHAAHAHA

        Talk about some sht you can’t make up.

  9. More than suspect, EG, as Katznelson among others have outright debunked the methodology and results.

    1. EG – If you examine the Vishnubhakat article, you’ll see that he completely recompiled a portion of the Meurer/Bessen work and largely agreed with their results, but provided the additional information (such as the higher payout for defendants discussed above).

      1. Dennis,

        All that does for me is make Vishnubhakat article as suspect as the Bessen/Meurer article. As others, such as Ron Katznelson have pointed our, this particular clique simply cross-cites and recirculates the same suspect data, making any conclusions reached based on that data suspect and lacking credibility as well.

        1. others, such as Ron Katznelson have pointed our, this particular clique simply cross-cites and recirculates the same suspect data

          That would be the same Ron Katznelson who argued that requiring patent owners to record their assignments is just a hair short of requiring every citizen to provide the government with an up-to-date complete listing of all their personal property.

          And you’re the guy who believes that judges who use the term “monopoly” when discussing patents should be impeached.

          Tell us more about who is “lacking credibility.”

          1. “Lacking credibility” is one whose favorite meme is AOOTWMD and then believes that intellectual honesty is not required in posts since this is ‘just a blog and not a court.’

            But you already know that, right Malcolm?

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