

Twitter: It’s time for patent trolls to bear the costs of frivolous lawsuits - e1ven
http://gigaom.com/2012/10/08/twitter-time-for-trolls-to-pay-full-price-for-patent-mischief

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lutusp
The author is confused. If a legal action is moved from preliminary hearing to
trial, by definition it's not frivolous. This doesn't mean it isn't really
frivolous by some common-sense test, only that the sitting judge determined
that the issue merited a court trial. On that basis it's not frivolous, and
woe betide the person who suggests that the judge acted wrongly _in his
court_.

Truly frivolous legal actions (on which everyone agrees) aren't tried, they're
cast out in preliminary hearings.

> _After a trial before a jury, we managed to prove that we didn’t infringe
> and that the asserted claims from the patent were invalid._

Invalidating a patent in court doesn't make the proceeding frivolous -- all
the plaintiff needs to do is claim that he sincerely believed in the patent
and in his claims. A frivolous proceeding is one in which a plaintiff
knowingly and deliberately wastes the court's time with actions that have no
substance.

Also, to base a judgment about frivolousness on the outcome of a trial is to
suggest that all losing plaintiffs are acting frivolously _on the basis of the
outcome_.

Don't get me wrong -- I think the present patent system stinks to high heaven.
But trying to call some patent proceedings "frivolous" just won't work.

What needs to change is not how the law is enforced, but the law itself.

