Should Those Sued In Bogus Patent Infringement Cases Be Able To Recover Legal Fees?
from the this-may-be-important dept
There's a potentially important legal battle going on following a highly questionable patent infringement claim made against Netflix and Blockbuster. The whole case seems pretty ridiculous. Basically a patent attorney had a rather basic idea on how to improve Netflix with a minor feature that pretty much anyone could have come up with, got a patent on it, formed a "company" whose only purpose was to sue... and then sued. The court quickly dismissed the lawsuit, which is now being appealed. However, Netflix is appealing itself on a separate issue: saying that the current system makes it much harder for those being sued to get attorney's fees, even in such ridiculous lawsuits.Groklaw goes into more detail about the issues in the lawsuit, pointing out that those suing for patent infringement can get attorneys' fees on cases where willful infringement is found, but those who are sued (even for bogus patents) can only recover attorneys' fees in "exceptional cases." Netflix is claiming that this creates an unfair imbalance. Lots of companies seem to be agreeing with Netflix, as Amazon, Facebook, Microsoft, Oracle, Toyota, and others have all filed amicus briefs siding with Netflix.
This is, actually, quite a big deal. An awful lot of totally bogus patent infringement lawsuits settle just because it's cheaper to pay up than to fight it in court. Even if you "win," the legal fees may outweigh what you could have settled for earlier on. And this perpetuates the problematic system. First, many patent system defenders take those "settlements" as proof that there was infringement and that the patents are valid. Second, it just gives those companies more reasons (and money) to keep suing others. It's a huge problem for many companies today -- and if the court reasonably lowered the barrier on granting attorneys' fees against totally ridiculous patent claims, it might make some of those questionable patent holders think twice before suing.
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Filed Under: attorneys' fees, patents
Companies: netflix
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YOU Lose you pay double
SO YOU BETTER BE SURE your suit is tight
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Misplaced liability
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Re: Misplaced liability
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Re: Re: Misplaced liability
The guy may not even have known how obvious it was. He wasn't a programmer or anyone involved in Netflix's innovation process. He was a patent attorney.
But what this does is place liability on a guy who has done nothing but be a jerk. He followed the law. He's under no obligation to promote the progress and the general well-being of society. The error was by the patent office, so that is where we should place the blame.
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Re: Re: Re: Misplaced liability
How different is this from a liability case, say if you crash your car into another's and it is your fault, you are liable for damages. If you sue other person and loose, you have caused unnecessary expense on the defendant so you should compensate? Perhaps these expenses should be somewhat capped or there would be an "lawyers arms race" (runaway costs).
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Re: Re: Re: Re: Misplaced liability
In this case, as far as I can tell, he had a patent that Netflix was violating. He had every right to sue, and Netflix doesn't deserve anything. But, like I said in another comment, I didn't click through beyond the Techdirt article, so there might be more to it that I'm not taking into account.
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Re: Re: Re: Misplaced liability
Patents should not be a "get rich quick" scheme.
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Re: Misplaced liability
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Re: Re: Misplaced liability
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Re: Re: Re: Misplaced liability
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with prejiduce
If the standard was that you as the defendant would not have to take on that burden of cost of if you win there would be a lot more people willing to stand up, and I would imagine a lot more lawyers willing to stand up with them.
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Loser Pays
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Loser Pays
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Welcome to America
There is Rule 11 sanction which can be applied to plaintiffs but in practice it is rarely used
Why ? Simple
America should stay a (civil) lawsuit happy country
the more (civil)lawsuits, the better
So just shut up
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where do you live
What goes around idiot, comes around.
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Re: where do you live
I also have Verizon Fios with a LOT of bandwidth and even more bandwidth at work
Now drop dead, techdirt retard
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Re: Re: where do you live
by Angry Dude
Journey with Angry Dude through his demented rants and weak attempts at communication. Experience the highs and lows of his pathetic life spent tilting at windmills. You will be astonished at how tolerant others are to his condition. Available in paperback and e-book
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Apparently this case was decided on the basis of non-infringement, and not that the patent was deemed invalid.
The relevant prior art seems clear and not of the type beyond the technical expertise of the USPTO examiners, so it is a bit premature to bandy the word "bogus" around to suggest that the issued patent covers a manifestly obvious invention.
As I look at the lineup of those coming to the aid of Netflix, it could not be more clear that the end goal of this appeal concerning damages is much less one of balancing the opportunity for receiving an award of attorney fees, and much more a rather stealthy attack on "software" patents per se.
Before forming opinions cast in stone, it would be nice to have a copy of the patentee's appeal brief in hand to understand his legal arguments pertaining to the finding of non-infringement. After all, understanding both sides of a case is much better than being presented with only one side.
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As for another view of this matter, one that I noted was absent, is the following blog post by the patentee. Mindful that it represents his perceptions, it is nonetheless quite informative:
http://nicdagreek.typepad.com/my_weblog/2010/07/setting-the-record-straight.html
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It only makes since...
I think it should be the same in a criminal case as well. If someone really was innocent, and they had good proof that this was the case, they could probably get a really good laywer to defend them because the laywer was sure to get paid.
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Re: It only makes since...
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The problem of shell companies
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Re: The problem of shell companies
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some but not all claims are invalid or not infringed
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Netflix nonsense
http://nicdagreek.typepad.com/my_weblog/2010/07/setting-the-record-straight.html
After you read what happened I think you have a different opinion about the merits of their request here.
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Re: Netflix nonsense
Uhm... Not to be a huge drag but if you set up a company to make a patent, copyright, trademark, etc, for only the chance to sue, isn't that bad faith?
After the first few paragraphs, your tone seems rather... arrogant. It's as if you are asking us the readers to be persuaded by you in saying you're correct in your assessments merely by law.
Also, from the looks you could have solved this amicably by allowing Netflix to use the patents in 2006:
"The real facts are that in early 2006, before I had any patent whatsoever, a friend of mine familiar with my then dozen plus pending applications on the subject indicated that he knew one of the original founders at Netflix, and that this person might be interested in buying the whole portfolio. After some initial exchanges, we entered into a formal evaluation agreement with Netflix to have further discussions about their purchase of the portfolio. "
But you turned them down:
"Netflix tried to BUY the patent applications, and they failed. I turned down their last proffered terms, not the other way around. This little distortion of the facts is introduced again by Netflix to suggest that I somehow had a vendetta against them. What is apparent now, in hindsight is that my apprehension was probably justified. "
Now, there's three sides to every tale. Your side, my side, and the truth. From your own tone in the weblog, I'm not likely to believe that you simply turned down Netflix (2006 version before they took off) without some kind of compensation. I can believe that negotiations on the patent failed.
Regardless, it seems that you're wanting to fight them for this small patent and you're not looking to compete in some new way. I side more with Netflix at this current moment than I do with you with all respect.
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Re: Netflix nonsense
Anyone have a list of this guys patents?
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@2
A) they might not buy into them types a patents
B) and the number of lawsuits regarding stupid flimsly patents would drop massively.
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This would stop MANY people from filing ridiculous suits
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This would stop MANY people from filing ridiculous suits
It would also stop many people from filing legitimate lawsuits.
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If the loser pay system exist and I was CEO of a big corporation, then I would feel absolutely no need to honor any patent from ordinary individual and small companies at all. If they threaten to sue, I'll just show them my team of lawyers, their hourly rate, and the length of time I could drag out the process, so the final lawyers bill will bankrupt them 10 times over. Even if they got a rock solid case, my low ball offer for settlement will stand a much better chance of been accepted under this threat.
NO way. The currently system is flawed, but it's there for a purpose.
A better system would be to make US patent office, and the clerk who approved the patent co-defendants in all patent lawsuits. This way, they won't be so keen on approving frivolus patents that invite law suits.
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How is that different from the current situation? I mean, now the little guy's legal fees will bankrupt him if he loses, and maybe also if he wins. Under loser pays, they'd bankrupt him and then some if he loses, and he'd pay nothing if he wins. Seems like a better outcome to me.
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It's different here in Canada...
If you want to sue someone, you must have a real, defensible idea that you could/should win the case. If you don't, the judge can assess legal and court costs against the plaintiff.
I doubt that it's a perfect solution, but it's still something. That way Jane Public won't have to settle only because she knows the lawsuit would wipe her out.
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If that were the system, no one would want to be a lawyer. If you wanted to bring a case against someone, you'd have to do so pro se (i.e., representing yourself), as no lawyer would want the potential liability of paying someone else's legal costs, even if the case is legitimate.
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So... killing two birds with one stone? ;-)
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Funny guy. I hope you enjoy the prospect of representing yourself in court.
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But, you do raise a point overlooked by many. People will always hate lawyers until they need one, and even then fully half using the services of a lawyer for litigation will hate lawyers even more.
Imagine how a pro se litigant feels if he/she loses. I can imagine few things more terrible than hating oneself.
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