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Netflix Tries to Fix One Part of the Patent System

By Pamela Jones et al.

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 help plaintiffs recover their fees if willful infringement is demonstrated, which is fairly easy to demonstrate. But defendants wrongfully sued have little hope of success when asking that their legal fees be covered, unless they can prove the claims were objectively baseless or brought in bad faith, a mighty high bar to get over. Netflix would like to change that to allow district courts to have discretion to award attorneys fees when folks bring litigation unlikely to succeed. 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 was objectively reckless -- that is, filed or maintained a lawsuit with an objectively low likelihood of success knowing or having reason to know that it was likely to lose -- or when the court finds that the defendant vindicated an important public interest.

If Netflix prevails, it could indeed have an impact on how readily folks initiate 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.

Full post as published by Groklaw on July 11, 2010 (boomark / email).