[GeneralMayhem]

> not because their claim is weak, but because the evidence required to plead the claim is difficult to come by

Could you provide an example? As a layman, I'm having trouble imagining how you could have a strong case without basic information such as what exactly the tort was.

[rayiner]

Winning a civil litigation requires proving by a preponderance of the evidence that someone wronged you. The problem arises that in many cases, the defendant holds the cards when it comes to evidence showing wrongdoing.

The examples are replete. Consider the recent financial scandals. You may sincerely believe that you were defrauded by a bank, but to prove fraud you need to show fraudulent intent. I.e. you need e-mails between the banks' employees saying "hey, we're going to screw this guy over." Well you can't get those e-mails until you initiate litigation, and under loser pays you're on the hook if, e.g., the bankers were smart and did their scheming by passing paper notes.

Or say you have a products liability litigation. You think a car company skimped on some part knowing it would compromise safety. Who has the internal testing data that might prove that claim?

Or say you have an environmental litigation. You think someone is dumping pollutants in your river and making people sick. Who has the internal logs that might prove that?

One of the purposes of litigation is investigation--getting evidence that may prove or disprove your claim. In the American framework, if someone has a good faith belief that someone did something wrong, and can allege at least something raising that above bare conjecture, they are entitled to litigate to uncover sufficient facts to make their claim.

[GeneralMayhem]

I'm not saying that those are just situations, but in all the examples you listed, the plaintiff didn't have a strong case anyway, so filtering them out at the claims stage wouldn't change anything.

[rayiner]

People do win those cases. Those smoking gun emails and internal tests do exist, and plaintiffs get them in discovery. BP didn't agree to pay out twenty billion to shield itself from litigation in the deepwater horizon disaster because they thought nobody would ever win those cases.

But if you filter those suits out at the pleading stage, those plaintiffs never get discovery, which takes their odds from low to nil.

[walid]

You're missing the point. Patents are the scope of these laws, not general legal practice.

[rayiner]

Right, but in the above few posts we're talking about how heightened pleading standards can get you into trouble.

And as a general point, special cases for special areas of law are hacks. The problem with patents isn't the pleading standards. It's not the lack of loser pays. It's that patents are very amorphous, poorly defined property rights. Imagine how much litigation there would be if your property right in your yard couldn't be simply and unambiguously determined just by looking or simple surveying. That's basically the problem with patents.

[walid]

> Imagine how much litigation there would be if your property right in your yard couldn't be simply and unambiguously determined just by looking or simple surveying. That's basically the problem with patents.

True, that's basically the problem with patents.

I'm surprised that there isn't a concerted effort to more clearly define what constitutes a valid patent from a semantic point of view. What meaning in that definition on paper is monopolized for a limited period. If we use a semantic hierarchy to define patents then looking up patent prior art becomes a mechanical process where we compare a hierarchy of prior art to the patent application.

How is a patent definition considered acceptable when it doesn't try to show that it is novel. Patents are after all a monopoly for a limited time before claims become public domain. So what constitutes public domain should be recorded to facilitate prior art look-up.

Some basic things like these two points can go a long way in resolving conflict.

[rarw]

It actually happens all the time. The heightened pleading standard comes from two cases - Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009). As the Twombly court described it - The "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true." What this ends up requiring is that the plaintiff state specific factual allegations as to what the defendant is actually doing wrong. This sounds like a pretty good idea but in many cases is much more difficult than you'd think. Usually the difficultly arises because the information that supports your complaint, i.e. what the defendant is doing wrong, is totally within their control. You, as a plaintiff bringing an action, do not have access to this information until discovery starts, which is only after the complaint and an answer have been filed.

Think of it this way. You have a patent. You're pretty sure, but not positive, someone is infringing on it. Without the ability to inspect the supposed infringer's facilities, how do you plead with particularity factual allegations sufficient to support an infringment claim? If the infringment is blatent, sure this is easy. But in more nuanced cases (I can't think of a technical exmaple) it is possible to end up in a siuation where actual infringment is occuring but because of an inability to access the right information there is not enough available to sufficiently plead a claim.

[walid]

> What this ends up requiring is that the plaintiff state specific factual allegations as to what the defendant is actually doing wrong.

I'm not a lawyer but in the case of patent infringement I expect the plaintiff to be able to show said infringement. It is a technical matter that can be deduced from the product by studying its functionality. The defendant practically cannot hide infringement.

[GeneralMayhem]

Fabrication processes can be patented. I can imagine examples that would be hard to definitively prove based on the final output three stages farther down the assembly line.

[walid]

True, but that is the same reasoning that the law goes by when it is required to prove guilt rather than proving innocence. The legal system many times lets the bad guy walk to make sure that an innocent is not accidentally convicted or over burden by having to show innocence. Just because something criminal can happen shouldn't be enough to warrant a lawsuit. There should be proof of criminality, infringement, whatever. Otherwise the law will simply be used as a harassment tool as is being done with patents.

[rarw]

Sure in some cases. Don't forget that patents cover a diverse array of innovations. What exactly is being infringed upon is not always that obvious.

[ScottBurson]

The draft does contain the words "unless the information is not reasonable [sic] accessible".

There is a balance to be struck here, I agree, but in one example [0] it cost a troll an estimated $450 to file a completely baseless lawsuit which would have cost the defendant almost $200k to have dismissed ("would have", but didn't, only because the attorney worked pro bono). That doesn't seem to me to indicate that the balance is currently struck at about the right place.

It seems to me that before the court allows the dogs of discovery to be loosed upon the defendant, it is more than fair to require the plaintiff to be specific about what claims it is alleging infringment of and what the defendant is doing that constitutes infringement.

[0] http://www.techdirt.com/articles/20130814/02270724171/massiv...

[rarw]

Just wanted to note that there are frivolous litigation rules that allow for sanctions against the party bringing a bogus suit and allow the target of the suit to recover attorneys fees. It would be standard practice to include within the motion to dismiss a section also moving for these remedies. Thus it is likley that the cost to fight back against the troll would not have been 200k - with or without the pro bono.