Acclaimed Litigator Featured on the Cover
Acclaimed Litigator Featured on the Cover – The LAW FIRM OF DAYREL SEWELL, PLLC is pleased to announce that Mr. Sewell’s article, “The Ignominious Patent Troll”, found below is the featured publication on the cover of the current issue of Intellectual Property Today.
In Network Protection Sciences, LLC, and similar cases, courts ought to be more willing to utilize sanctions as well as the other methods discussed herein to shutter the courthouse doors to abusive litigation. It is incomprehensible to have these abusive litigation deterrents and not utilize them when the record screams otherwise. Rule 11(c) of the Federal Rules of Civil Procedure offers sanctions for litigation abuses and indicates that reasonable attorney fees can serve as one form of sanctions. Additionally, the Patent Act provides that a “court in exceptional cases may award reasonable attorney fees to the prevailing party.” See 35 U.S.C. § 285. Section 285’s language was first included in the 1946 statutory revision of damage calculations. However, rather than limiting the award to “exceptional cases”, the 1946 statute provided that “[t]he court may in its discretion award reasonable attorney’s fees to the prevailing party.” See 35 U.S.C. § 70 (1946 ed.).
It is understood that there is discretion involved in the sanction-worthy, decision-making process. Nevertheless, if rules that are available are not justly applied to appropriate situations, then there is little speculation that abusive litigation tactics will continue. As Federal Circuit Chief Judge Rader says, “[j]udges know the routine all too well, and the law gives them the authority to stop it. We urge them to do so.” See Randall R. Rader, Colleen V. Chien & David Hricik, Make Trolls Pay in Court, N.Y.TIMES, June 5, 2013, at A5.
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Chiara
Congratulations on your article being featured! I found it to be extremely intriguing. Before diving into the subsequent news and cases to follow your article, I looked into the term “patent troll” itself. In 2019, a notorious patent troll named Automated Transactions, LLC sued more than a dozen people and trade groups, claiming it was defamed for using the term “patent troll.” The New Hampshire Supreme Court held in Automated Transactions, LLC v. American Bankers Association that calling someone a “patent troll” doesn’t constitute defamation. Where some may brush this news off as nickels and pennies, others who criticize abusive patent litigation and value public debate around patent policy see this as a huge win.
After reading about the case Network Protection Sciences, LLC v. Fortinet, Inc. mentioned in the case study, the first thing that stood out to me was the district in which the case was brought. The district in this matter was the Eastern District of Texas, which is well known for both hearing a large number of patent infringement cases and awarding accusers big wins. Upon further research, I found a study done in 2015 by PricewaterhouseCoopers, which found that the court in the Eastern District of Texas was far more likely to decide in a patent plaintiff’s favor rather than other courts.
A turn of events took place in 2017 when the Supreme Court voted unanimously in TC Heartland v. Kraft Foods that patent lawsuits should be tried where the defending company is based, rather than in a court of the plaintiff’s choosing. This decision is a significant decision due to the potential shift of cases where cases brought in “plaintiff-friendly” districts could then steer more toward “neutral” districts, where a defending company could have better odds of prevailing.
This is not to say that suits will not continue to be brought in the Eastern District of Texas, where Plaintiffs have a higher rate of success, but rather that defendants being sued in this district will have to have a regular and established place of business in the district. Thus, potentially minimizing the amounts of suits brought in this district where plaintiffs normally prevail. This shift could result in “patent trolls” bringing fewer suits if patent cases are heard in venues other than those that trolls prefer.
The Supreme Court’s unanimous decision in 2017 is a huge win for patent holders around the U.S. for many reasons, one of the largest being that with this new requirement, patent holders will hopefully be able to spend less time, resources, and money on frivolous lawsuits by patent trolls and more time, resources and money on developing new inventions/technology.
Although the courts decision in TC Heartland resulted in consequences for patent trolls, the patent owner, in that case, was Kraft Foods. Kraft Foods is not exactly known to be a patent troll, meaning the Supreme Court used this case to attempt to make life a little more difficult for patent trolls without directly acknowledging them and their abusive behavior of our justice system.