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June 30, 2015

Should Congress Still Act on Fee-Shifting? Depends Who You Ask.

The Supreme Court has ruled in two cases dealing with courts’ awarding of attorneys fees to prevailing parties in patent lawsuits, known as fee-shifting. It’s possible the rulings could stifle some legal activity by patent trolls. So, should Congress — which has been looking at this issue in patent troll legislation — still act on the matter? It depends on who you ask.

Michael Beckerman, president and CEO of The Internet Association, which has been calling for fee-shifting language in legislation, released a statement after the rulings that says lawmakers still need to act:

The Internet Association welcomes the Court’s ruling to make it easier to shift fees in exceptional cases, but legislation is needed to fully address the problem of patent troll tactics that drive up litigation costs for the purpose of extracting nuisance settlements. Every day that goes by without clear legislative guidance on fee shifting and other necessary reforms to patent litigation hurts innovation and costs jobs. Congress must act now.

Brian Pomper, executive director of the Innovation Alliance, thinks otherwise:

Today’s decision by the Supreme Court makes clear that major new legislative initiatives on fee shifting are unnecessary. The decision significantly lowers the threshold for fee shifting in patent cases;  demonstrates the federal Courts’ capacity and willingness to address difficult litigation procedural issues; and removes a key driver of the patent legislation Congress has been considering.

You can find the court decisions here and here if you haven’t already.