[shasta]

Wow, a real patent lawyer in a patent law thread. You don't belong here, but I'll upvote whatever you have to write.

I have a comment and a question:

The comment. Summary judgement does not accomplish what I think sheepleherd was proposing. As you say, if you get a summary judgment against you, you go home. That means that a judge has to be convinced that there is definitely no case in order to issue one. What's needed, rather, is a speedy determination of who seems to be in the right. It should not be final but should determine who pays going forward.

The question. What do you see as the problem in cases like this? Or do you see a problem?

[pdabbadabba]

Well, first of all, I have to confess: I'm not a patent lawyer. I'm a regulatory lawyer.

And, just so we have our terminology straight, summary judgment is actually different from the motion-to-dismiss phase I was describing. In super simple terms, the latter happens after the parties have has the chance to gather evidence and seeks to determine whether it is legally possible for a party to win at trial. Therefore it occurs late in litigation, after parties have already spent a lot of money (but still before trial). The former typically occurs before evidence is even gathered to determine whether the plaintiff could legally win even if all of his or her allegations were factually true.

As for the threshold fee-shifting idea: I think it's probably not a good one. There are cases where it could help, but if the judge gets her threshold determination wrong, then it makes life even harder for a less wealthy litigant. The simplest solution, which many countries have implemented, is simply a loser pays system for legal fees. I'm not sure this is ideal either, but I think it is at least better.

There also is usually a possibility that the judge could require the loser to pay after the fact, if she determines that the case was especially un-meritorious. Another possible reform would be to loosen the standard that judges apply in choosing whether to award fees in this way.

[sheepleherd]

I was pointing out a thought process that I thought would work better and more rationally (it's the way parents adjudicate disputes, i.e. what's really at stake here, and yes, parents do get to legislate) rather than making an "official proposal".

But inasmuch as it was an official proposal, the proposition was not that the all costs would shift to one party; it was that if you lost the preliminary ruling on the main point you could decide if you wanted to spend money on further litigation or look for a settlement; in a more nuanced way, if the preliminary ruling was 80-20 culpability/damages conceivably the winner might also wish to litigate further. I wasn't shifting the legal costs, I was educating the decisions along the way.

There potentially is something to be gained from more "loser pays" legal fees, but I was not making that proposal.

[shasta]

Patent lawyer or no, you're still more qualified than the average participant.

I'm not sure what criteria you're using to judge that the proposal would be worse for a less wealthy litigant. Surely the proposal would be better in cases where one side is clearly right? The cost of patent litigation is currently huge. The only way a non-wealthy litigant can participate is with lawyers on contingency. No?

But I suspect fixing the legal costs is only a part of the patent problem. My understanding is that cases like the OP regularly go to verdict and find for the troll.