There's a very interesting case,
Media Queue v. Netflix, where Netflix is asking the Federal Circuit to revisit the standard for awarding attorneys' fees. Here's
their appeal brief [PDF]. It would like the court to create parity between plaintiffs and defendants. Right now, the system tilts to helpplaintiffs recover their fees if willful infringement is demonstrated, which isfairly easy to demonstrate. But defendants wrongfully sued have little hope ofsuccess when asking that their legal fees be covered, unless they can prove theclaims were objectively baseless or brought in bad faith, a mighty high bar toget over. Netflix would like to change that to allow district courts to havediscretion to award attorneys fees when folks bring litigation unlikely tosucceed.From the
motion [PDF] asking for en banc review, which Netflix is also requesting:
District courts should have discretion to award fees when a patentee wasobjectively reckless -- that is, filed or maintained a lawsuit with anobjectively low likelihood of success knowing or having reason to know that itwas likely to lose -- or when the court finds that the defendant vindicated animportant public interest.
If Netflix prevails, it could indeed have an impact on how readily folksinitiate questionable patent infringement lawsuits.
If we can't yet get rid of software patents as a category outright -- although, I must say, after reading about this case, you may agree we ought to -- at least savvy patent lawyers can tweak the system so it's not so lopsidedly awful. Yes, there are such patent lawyers. If you download the filings, you'll see that Michael A. Jacobs of Morrison & Foerster is on the Netflix legal team, along with Durie Tangri's
Mark A. Lemley. So that drew my attention right off the bat. This case is important enough that amicus briefs have been filed by Amazon, Facebook, Microsoft, Oracle, Toyota, and others supporting Netflix's request for an
en banc hearing. Let's take a look. I think you'll want to follow this one.
More...
