Patent Reform Needs Fee Shifting Provisions, Because Judges Almost Never Award Attorneys' Fees
from the necessary-reform dept
One of the key parts of the attempts to reform the patent system is the fee shifting provision, which would make it so patent trolls who bring bogus lawsuits will be required to pay the attorneys’ fees of those they sued. Some patent system defenders, including the chief judge of CAFC, the appeals court who hears all patent appeals, say that this isn’t needed because courts already have the power to award attorney fees. However, as we’ve pointed out, the law on that notes that this power can only be used in “exceptional cases.”
New data from Lex Machina — an awesome startup that is compiling all sorts of legal data — shows that courts almost never award attorneys fees, and the rate at which they’re doing so continues to go down, even as the number of patent lawsuits has gone up. From 2010 through 2012, 997 patent judgments were contested — and only six had attorneys fees granted. Yes, less than 1%. So, for those arguing that fee shifting is already allowed under the law… it’s simply not happening. Patent reform needs a strong fee shifting component to ward off so many bogus lawsuits.
Update: There’s been some discussion in the comments about the data, which require some further clarification. The six awards are the cases where attorneys fees were granted based on “litigation misconduct or frivolous, bad-faith litigation.” Some have pointed out that fees have been awarded in some other cases, but those were for default, willful infringement or inequitable conduct — which are issues unrelated to the point being made here. It’s the frivolous, bad-faith litigation that’s the problem, which happens all the time, and attorneys’ fees are almost never granted in such cases, leading trolls to file frivolous cases all too frequently. Separately, some have argued that the 997 is inappropriate because defendants in many of those cases did not seek attorneys’ fees, but that actually supports the point, rather than takes away from it. Given how rare and unlikely it is for a court to award attorneys’ fees, most defendants don’t see any value in wasting even more legal effort in trying to get those fees, knowing they’re almost certainly not going to come.