EFF's Defend Innovation Project: Analysis (Part 2)

If the patent is invalid or there's no infringement, the trolls should have to pay the legal fees

The Problem:  "Both the winner and loser in a patent suit almost always pay their owns fees and costs, which can total well into the millions of dollars if the case actually goes to trial. Because the potential costs are so high and there is no way to recover those costs, defendants will often settle to avoid hefty legal bills – even if they have a strong legal case that they never infringed on the patent or the patent was invalid to begin with."

The Solution:  "Patent law should allow for the winning party, in cases where it was easy to see that the patent was invalid or there was no infringement, to obtain its fees and costs. If the trolls know they could be on the hook for that money, they will be less likely to file frivolous lawsuits."

(source)

 This is a great idea.  Settlement always looks like the sweeter deal, even when faced with a winnable suit.  A troll can nickle-and-dime innovators to death without ever having to go to court, and innovators deserve some form of protection from this.

  My only suggestion would be that this proposal needs a solid stipulation to the effect of:  "IF the lawsuit is clearly an act of trolling, with little or no merit for the claim."

  In other words, a company should not be economically dissuaded from pursuing a potentially legitimate claim any more than they should be economically dissuaded from protecting themselves from a ludicrous one.  Some claims do indeed have enough merit to require the attention of civil courts - these should not be affected by this proposal.  I know that the proposal contains some wording of this sort, but it should be much, much clearer in final form.

  Simple in theory, but very tricky in implementation.  Who decides the merits of the case?  The judge?  The jury?  Should it be a judgement call at all, or should there be some mechanism built into the patent system that codifies these standards?  This will all have to be addressed before I can fully get behind such a reform.

Next: Patent applicants should be required to provide an example of running software code for each claim in the patent