Vermont urges Supreme Court to overturn standard for recovery of attorneys’ fees in patent litigation

Attorney General William H Sorrell, joined by twenty-nine other states, has filed a friend-of-the-court brief in the U.S. Supreme Court asking the Court to relax the standard that lower courts use to award attorneys’ fees to prevailing parties in some patent cases. The brief, drafted by Vermont, explains the harm caused by so-called ‘patent trolls’ and urges the Court to adopt a rule that would make it easier for businesses that successfully defend meritless claims of patent infringement to recover some of their litigation costs.
Patent trolls, as the brief notes, ‘do not invent new technology, make or sell products, or provide services to clients.’ Rather, they buy up patents from others and make money by asserting infringement and demanding licensing fees or settlements. ‘Patent litigation is so expensive that small businesses often pay licensing fees rather than fighting frivolous and unreasonable infringement claims,’ said Attorney General Sorrell. ‘Patent trolling stifles innovation and hurts businesses and consumers. The rule we’ve asked the Supreme Court to adopt would give the targets of patent trolls more incentive to litigate and a better chance of recovering their costs.’
Vermont and Nebraska led the amicus effort. Also joining Vermont in this brief are Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Hawaii, Iowa, Indiana, Kansas, Louisiana, Maine, Massachusetts, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, New Mexico, North Dakota, Ohio, Oregon, Pennsylvania, South Dakota, Utah, Washington, and Wyoming. A copy of the brief may be found here.
In another effort to address the issue of patent trolling, Attorney General Sorrell has expressed support for the proposed federal Innovation Act, H.R. 3309, which was passed by the House of Representatives last week. Sorrell’s letter to Vermont Congressman Peter Welch, which also recommends some changes to the proposed legislation, may be found here.
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Vermont Attorney General, December 9, 2013
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