Fee Shifting in the Future

Over on the main page Dennis has a nice announcement about an upcoming webinar on the future of fee shifting post-Octane.  Two thoughts.

One, in the op-ed I wrote many months before Octane with Chief Judge Rader and Professor Colleen Chien (who is now at a post at the White House, I believe), we wrote:

To make sure Section 285 is implemented with appropriate vigor, judges must look more closely for signs that a patent lawsuit was pursued primarily to take improper advantage of a defendant — that is, using the threat of litigation cost, rather than the merits of a claim, to bully a defendant into settling.

One sign of potential abuse is when a single patent holder sues hundreds or thousands of users of a technology (who know little about the patent) rather than those who make it — or when a patent holder sues a slew of companies with a demand for a quick settlement at a fraction of the cost of defense, or refuses to stop pursuing settlements from product users even after a court has ruled against the patentee.

Other indications of potential bullying include litigants who assert a patent claim when the rights to it have already been granted through license, or distort a patent claim far beyond its plain meaning and precedent for the apparent purpose of raising the legal costs of the defense.

Second, I wrote about NPEs and ethics a long, long, long time ago in an article here, which also talks about how defense counsel can get in cahoots, so to speak, with NPEs to drive up defense costs for their own benefit.  (All my articles are named after songs by Wesley Stace, f/k/a John Wesley Harding.  It’s a long fun story.)

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.