Prior analyses of optimal damage awards, decoupling, and fee shifting are shown to involve special cases.
(AAU supported language that would require the court to consider fee shifting only in certain circumstances).
Patent reform advanced slightly in the courts, with one ruling prohibiting patent trolls from "fee shifting".
Attorney fee shifting was previously discussed in the 113th Congress in the context of the SHIELD Act, which received interest, but ultimately did not mature into a bill.
The bill isn't clear enough about when fee shifting and joinder would apply, they argue, and it places excessive burden on the parties asserting their patents to prove they are not bad actors.
This bill would also provide that an NPE would have to pay the attorneys' fees of a prevailing defendant if the court found that the NPEs assertions were unjustified, a less extreme attorney fee shifting measure than the SHIELD Act.
With that being said, the PATENT Act seems to have found some tepid support by some detractors of the Innovation Act, largely because fee shifting does not occur by "presumption," as in the Innovation Act.
According to the bill, fee shifting and joinder would be on the table only when a lawsuit is deemed not to be "reasonably justified in law and fact," and suits filed by a university wouldn't fall into that category, Petricone says.
The updated draft looks very promising overall, with changes that look to address everything from fee shifting to heightened pleading.
The only thing I would say though to help people not to be so intimidated is that the copyright law provides for fee shifting, so that if you get sued for using a public domain image and you successfully defend the lawsuit there's a good chance that the plaintiff will wind up paying your attorney fees.
