On Monday, the US Court of Appeals for the Federal Circuit (CAFC) issued a decision that substantially eases the burden on defendants in patent cases. Patently-O has a brief posting here which has attracted numerous comments
For those who don't follow patent matters closely, the CAFC is the court that handle appeals in US patent cases and this was a rare unanimous en banc opinion, i.e. all ten circuit court judges participated and all agreed. The opinion was on a procedural matter brought by Seagate Technologies but the key results were:
- A new "willfulness standard" which now requires clear and convincing evidence of "objectively reckless" conduct. "Willfulness" determines whether a defendant can be liable for "enhanced damages" (more money than the patent holder's actual damages). This new standard makes it easier for defendants to avoid being liable for "enhanced damages."
- If a defendant relies on a pre-litigation "opinion of counsel" as proof they were not "willfully reckless," the use of that pre-litigation opinion no longer constitutes a waiver of attorney-client privilege with their trial counsel.
If the US routinely had the losing party liable for (at least some of) the winning party's attorney's fees, then I think this would have an equally punitary effect. The award in each case will (presumably? - sorry to take a shot at US litigation expense) be lower, but the overall award of $ would be much higher.
Would also clean up the 'patent troll' problem, ...
Well, we can dream...