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some problem with loser pays | 225 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
some problem with loser pays
Authored by: Anonymous on Monday, May 20 2013 @ 10:58 AM EDT
That scares unsure parties (the attacked ones I mean) into settlement as an
unwanted side effect as well.

[ Reply to This | Parent | # ]

Also add?
Authored by: wvhillbilly on Monday, May 20 2013 @ 11:51 AM EDT
Hey guys! a thought just came to my mind--the biblical penalty for bringing
false witness. It shall be done to the person who brought the false accusation
what he had thought to do to the one he was accusing--or to update it to this
situation-if the plaintiff loses, he has to pay the defendant whatever he was
demanding or planning to demand of him.

Now that would do a *lot* to level the playing field.

---
"It is written." always trumps, "Um, ah, well, I thought..."

[ Reply to This | Parent | # ]

Also add?
Authored by: tknarr on Monday, May 20 2013 @ 12:26 PM EDT

I don't think pure loser-pays. That leaves too much room for punitive measures by patent-holders, where they openly aim to outright bankrupt defendants to set examples: "We don't care if you had legitimate defenses or not, we'll make the cost of losing too high for you to risk arguing with us.".

I'd go with a second evaluation after the decision is rendered, with the standard being "Would a reasonable person have believed the loser had a legitimate case at the start of the trial?". It doesn't have to be a winning case, just one where a reasonable person would've thought it could go either way. All evidence presented at trial can be considered, but the viewpoint would be that of the loser just before the trial started. So if eg. the defendant showed prior art at trial that wouldn't automatically get the plaintiff paying, but if the defendant showed that the plaintiff knew about the prior art back when they filed suit then that would meet the requirement and the plaintiff would be having to pay. That way if you're taking a reasonable position based on what you know then the risk is low, but the risk increases dramatically if you try to play games or take unreasonable positions.

[ Reply to This | Parent | # ]

  • Also add? - Authored by: Anonymous on Monday, May 20 2013 @ 12:39 PM EDT
    • Also add? - Authored by: Wol on Monday, May 20 2013 @ 01:32 PM EDT
Also add?
Authored by: Anonymous on Monday, May 20 2013 @ 08:34 PM EDT
"The losing troll or other bully pays the lot plus damages to the
victim" will do nothing to solve the problem as ownership and suit are be
an entity with a negative net worth. Protection against patent seizure is
assured by patten buy back agreement.

What this means is that in the US under current law money flow is a one way
street.

[ Reply to This | Parent | # ]

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