[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.