

Senator Leahy Kills Patent Reform (For Now) - _stephan
https://www.eff.org/deeplinks/2014/05/senator-leahy-kills-patent-reform-now

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rayiner
ArsTechnica has a writeup with less . . . editorializing:
[http://arstechnica.com/tech-policy/2014/05/gridlock-
strikes-...](http://arstechnica.com/tech-policy/2014/05/gridlock-strikes-
again-as-anti-patent-troll-bill-dies-in-us-senate).

("After nearly a year of work, there's 'no agreement on how to combat the
scourge of patent trolls' without also harming other patent holders and
universities, wrote Leahy. If stakeholders are able to get 'a more focused
agreement,' Leahy said he'll bring it immediately to the committee's
attention.")

("Early this morning, several groups opposing the bill denounced those
provisions, promising they would be united in their opposition to any bill
that included them. 'Many of the provisions would have the effect of treating
every patent holder as a patent troll,' read a letter sent out by the
Innovation Alliance, which was signed by the American Association of
Universities and the biotechnology trade group BIO.")

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dctoedt
It's widely believed that Sen. Leahy saw no pressing need to move forward.
That's because two recent Supreme Court decisions might well have solved 80%
of the problem, by giving federal trial judges _much_ more latitude in
awarding attorneys' fees to prevailing parties in "exceptional" patent-
infringement cases, as long permitted by the patent statute itself.

Ah, but what does "exceptional" mean? In that regard, the Federal Circuit had
been interpreting the word very strictly, in a manner that essentially tied
the hands of trial judges. The Supreme Court cut the fetters. Here's a crucial
quote from one of the Supreme Court opinions, excerpted by law professor
Dennis Crouch [1] (extra paragraphing and bullets added by me):

<excerpt>

 _[A]n “exceptional” case is simply one that stands out from the others with
respect to[:]

\+ the substantive strength of a party’s litigating position (considering both
the governing law and the facts of the case) or

\+ the unreasonable manner in which the case was litigated._

 _District courts may determine whether a case is “exceptional” in the case-
by-case exercise of their discretion, considering the totality of the
circumstances [and without any] precise rule or formula for making these
determinations._

</excerpt>

Importantly, the Court also held that on appeal, the trial judge's
determination of the exceptional-case issue is reviewable only for "abuse of
discretion." That is, the appeals court is not permitted to substitute its
judgment for that of the trial judge, just because the appellate judges might
have decided the case the other way, unless the trial judge's action was
clearly unreasonable.

[1] [http://patentlyo.com/patent/2014/04/discretion-attorney-
liti...](http://patentlyo.com/patent/2014/04/discretion-attorney-
litigation.html)

~~~
wlesieutre
Aren't many patent troll lawsuits filed through shell corporations with few/no
assets of their own? In situations like that, what ability do you have to
collect attorneys' fees?

~~~
dctoedt
I would expect some defendants, faced with a troll with few / no assets, to
ask the judge to require the troll to put up a bond. I've never heard of that
happening and don't know offhand if it's even permissible. If I were still
involved in patent litigation for defendants, though, I'd certainly look into
it.

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bichiliad
Senator Leahy also introduced both COICA and PIPA to the Senate. I always
brace for something I don't agree with when his name comes up.

