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GOP Wrangles with Shifting Fees in Patent Bill

November 17, 2014

​Fenwick & West patent litigation partner Charlene Morrow was prominently featured in a Daily Journal article about possible ramifications of the Republican-controlled Congress’ efforts to pass new legislation reforming patent litigation, with an emphasis on shifting the fees to a “loser pays” system, with the intent of discouraging non-practicing entities from seeking nuisance settlements.

Morrow told the Daily Journal that such legislation might require patent holders prior to filing an infringement case to post a bond, which would be delivered to the defendant if the suit was then deemed frivolous. Morrow added that a bonding measure would be one solution towards shifting expenses from operating companies onto non-practicing assertion entities.

“The question is how to disincentive the truly frivolous lawsuits,” she said.

Morrow suggested that a new law might also require plaintiffs to disclose their financial backers, submit complaints that specifically outline how products allegedly infringe asserted patents and to conduct thorough investigations prior to filing a lawsuit. ​​​