Y'all know I think that requiring subjective/objective bad faith to get fees is not a correct interpretation of 285.
I've been updating my book, reading about the liability standards the CAFC has imposed for, e.g., making frivolous claims to a customer of X that X's products infringe and so the customer needs a license.
The standard? Objective and subjective baselessness, because of the right to petition. This one they've got right. See Hunter Douglas, Inc. v. Harmonic Design, Inc., 153 F.3d 1318, 1336–37 (Fed. Cir. 1998), overruled on other grounds, Midwest Industries, Inc. v. Karavan Trailers, Inc., 175 F.3d 1356 (Fed. Cir. 1999) (requiring plaintiff to plead and prove bad faith to prevail on state law tort claims based upon statements of infringement in the marketplace); In re Innovatio IP Ventures, LLC Patent Litig., 921 F. Supp.2d 903 (N.D. Ill. 2013) (same and providing a lengthy discussion); Clearplay, Inc. v. Nissim Corp., 2011 WL 3878363 (S.D. Fla. Sept. 2, 2011) (same); Contech Stormwater Solutions, Inc. v. Baysaver Tech., Inc.,534 F. Supp. 2d 616(D. Md. 2008) (requiring bad faith and other elements of state law tort claims for pre-suit letters);Zenith Electronics Corp. v. Exzec, Inc., 182 F.3d 1340, 1353–54 (Fed. Cir. 1999) (adopting the bad-faith requirement for Lanham Act claims).
But does it make one whit of sense to intepret a fee shifting statute to require the same proof that the First Amendment requires before imposing liability for suing? If that is a correct reading of the First Amendment, then NO fee shifting statute is constitutional unless it meets this objective/subjective requirement.
Okay, back to the book. The IP Ventures case is, by the way, really interesting.
I was raising that issue because some folks from Euroland were recently arguing that patents were a privilege, i.e., a discretionary grant from the crown. If you recall, I pointed out that the SC had held that they were not privileges as in England, because we had no King, and patents were granted as a right pursuant to LAW, citing US v. Am. Bell. Tel.
careful with that ‘privilege’ word Ned…
(hint: remember the Quid Pro Quo in general, and the fact that true ‘privileges’ are public rights)
Well, once upon a time, one could only go to Federal Court is if the amount in controversy exceeded $20. I suspect that might be equivalent to $2000 now. So, there is a barrier.
But how high is too high?
And, does it at all depend upon the right being protected? A constitutional right vs. a “privilege?”
Not sure I understand your question Ned. Are you asking if a fundamental right (of redress) has a price tag? a relative value on some unstated sliding scale? If so, who decides the scale?
Let’s think.
Suppose one imposed a “cost of defense” award to prevailing defendants when affected persons filed actions that sought to protect constitutional rights. Now one might argue that such a award would so chill the right to petition that it would effectively bar such actions and be unconstitutional.
But does the height of the barrier to court access vary according to the importance of the right? Or is it the right of access to the courts that must be protected regardless of the importance of the right?
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