Inhibiting Patent Trolling: a New Approach for Applying Rule 11 Eric Rogers Molecular Templates, Inc
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How Ambiguity in Some States' Anti-SLAPP
ROBERT T. SHERWIN, AMBIGUITY IN ANTI-SLAPP LAW AND FRIVOLOUS LIGITATION, 40 COLUM. J.L. & ARTS 431 (2017) Evidence? We Don’t Need No Stinkin’ Evidence!: How Ambiguity in Some States’ Anti-SLAPP Laws Threatens to De- Fang a Popular and Powerful Weapon Against Frivolous Litigation Robert T. Sherwin* ABSTRACT For nearly thirty years, states have been adopting laws that attempt to stop rich, sophisticated parties from using costly litigation as a weapon to punish and silence their less-affluent critics. Known as “anti-SLAPP” statutes, these measures have been incredibly effective in forcing certain plaintiffs to bring forth evidence at an early stage of litigation to show their claims have merit. Unfortunately, a troubling trend has emerged. Some states’ courts are interpreting particular language within their anti-SLAPP laws to allow plaintiffs to survive early dismissal by merely pointing to unproven and unsworn-to allegations in their pleadings. This movement is on the rise as Congress recently considered a federal anti-SLAPP bill that just so happens to feature this same ambiguous language. This Article explores how state courts are arriving at entirely opposite holdings despite sharing statutory language that is identical in form and purpose. Ultimately, I offer specific suggestions about how Congress and state legislatures can fix their laws to avoid uncertainty and fully effectuate the purpose of anti-SLAPP legislation. Abstract ................................................................................................................. 431 I. Introduction ....................................................................................................... 432 II. Upside the Head: How Anti-SLAPP Statutes Seek to Disrupt Frivolous Litigation ................................................................................................... 435 A. When Do Anti-SLAPP Statutes Apply? ............................................ 437 B. How Do Courts Decide What Lives and What Dies? ....................... -
Framing Frivolous Litigation: a Psychological Theory Chris Guthrie
Vanderbilt University Law School Scholarship@Vanderbilt Law Vanderbilt Law School Faculty Publications Faculty Scholarship 2000 Framing Frivolous Litigation: A Psychological Theory Chris Guthrie Follow this and additional works at: https://scholarship.law.vanderbilt.edu/faculty-publications Part of the Dispute Resolution and Arbitration Commons Recommended Citation Chris Guthrie, Framing Frivolous Litigation: A Psychological Theory, 67 University of Chicago Law Review. 163 (2000) Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/814 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law School Faculty Publications by an authorized administrator of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. +(,1 2 1/,1( Citation: 67 U. Chi. L. Rev. 163 2000 Content downloaded/printed from HeinOnline (http://heinonline.org) Wed Jun 6 16:03:04 2012 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0041-9494 Retrieved from DiscoverArchive, Vanderbilt University’s Institutional Repository This work was originally published in Guthrie, C. Framing Frivolous Litigation: A Psychological Theory. 67 U. Chi. L. Rev. 163 2000 Framing Frivolous Litigation: A Psychological Theory Chris Guthriet This Article uses an often-overlooked component of prospect theory to develop a positive theory offrivolous or low-probability litigation. -
Solving the Nuisance-Value Settlement Problem: Mandatory Summary Judgment*
ISSN 1045-6333 HARVARD JOHN M. OLIN CENTER FOR LAW, ECONOMICS, AND BUSINESS SOLVING THE NUSIANCE-VALUE SETTLEMENT PROBLEM: MANDATORY SUMMARY JUDGMENT Randy J. Kozel David Rosenberg Discussion Paper No. 469 03/2004 Harvard Law School Cambridge, MA 02138 This paper can be downloaded without charge from: The Harvard John M. Olin Discussion Paper Series: http://www.law.harvard.edu/programs/olin_center/ The Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/abstract_id=485242 JEL Classifications: K4, K13, K40, K41 SOLVING THE NUISANCE-VALUE SETTLEMENT PROBLEM: MANDATORY SUMMARY JUDGMENT* RANDY J. KOZEL & DAVID ROSENBERG The nuisance-value settlement problem arises whenever a litigant can profitably initiate a meritless claim or defense and offer to settle it for less than it would cost the opposing litigant to have a court dismiss the claim or defense on a standard motion for merits review like summary judgment. The opposing litigant confronted with such a nuisance-value claim or defense rationally would agree to settle for any amount up to the cost of litigating to have it dismissed. These settlement payoffs skew litigation outcomes away from socially appropriate levels, undermining the deterrence and compensation objectives of civil liability. Yet current procedural rules are inadequate to foreclose nuisance-value strategies. Class action is commonly thought to exacerbate the nuisance-value settlement prob- lem to the systematic disadvantage of defendants. This concern has contributed to the growing support among courts and commentators for subjecting class actions to precertification merits review (PCMR), generally understood as conditioning class certification on prior screening of class claims for some threshold level of merit. -
Predictably Expensive:Ac Ritical Look at Patent
PREDICTABLY EXPENSIVE: A CRITICAL LOOK AT PATENT LITIGATION IN THE EASTERN DISTRICT OF TEXAS Brian J. Love* James Yoon† CITE AS 20 STAN. TECH. L. REV. 1 (2017) ABSTRACT In this Article, we compare U.S. patent litigation across districts and consider possible explanations for the Eastern District of Texas’ popularity with patent plaintiffs. Rather than any one explanation, we conclude that what makes the Eastern District so attractive to patent plaintiffs is the accumulated effect of several marginal advantages—particularly with respect to the relative timing of discovery deadlines, transfer decisions, and claim construction—that make it predictably expensive for accused infringers to defend patent suits filed in East Texas. These findings tend to support ongoing efforts to pass patent reform legislation that would presumptively stay discovery in patent suits pending claim construction and motions to transfer or dismiss. However, we also observe that courts in the Eastern District of Texas have exercised their discretion in ways that dampen the effect of prior legislative and judicial reforms that were aimed (at least in part) at deterring abusive patent suits. Given courts’ broad discretion to control how cases proceed, this additional finding suggests that restricting venue in patent cases may well be the single most effective reform available to Congress or the courts to limit patentees’ ability to impose unnecessary and unwarranted costs on companies accused of patent infringement. * Assistant Professor and Co-Director of the High Tech Law Institute, Santa Clara University School of Law. My work on this Article was supported in part by the INPRECOMP Project of the Center for Law, Science & Innovation (LSI) at the Arizona State University Sandra Day O’Connor College of Law. -
Bearing Down on Trademark Bullies
Fordham Intellectual Property, Media and Entertainment Law Journal Volume 22 Volume XXII Number 4 Volume XXII Book 4 Article 3 2012 Bearing Down on Trademark Bullies Irina D. Manta Brooklyn Law School; Case Western Reserve University School of Law, [email protected] Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj Part of the Intellectual Property Law Commons Recommended Citation Irina D. Manta, Bearing Down on Trademark Bullies, 22 Fordham Intell. Prop. Media & Ent. L.J. 853 (2015). Available at: https://ir.lawnet.fordham.edu/iplj/vol22/iss4/3 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Intellectual Property, Media and Entertainment Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Bearing Down on Trademark Bullies Cover Page Footnote Visiting Associate Professor of Law, Brooklyn Law School; Assistant Professor, Case Western Reserve University School of Law; Yale Law School, J.D.; Yale College, B.A. I would like to thank James Barabas, Eric Goldman, Hugh Hansen, Brian Lee, Cassandra Robertson, Jeremy Sheff, David Silverman, Robert Wagner, and my research assistant David Gerard. I am very grateful to Fordham Law School and the Fordham IPLJ for inviting me to make this contribution and thank the symposium participants for their comments. My appreciation also goes to Brooklyn Law School and its staff for support during my research. This article is available in Fordham Intellectual Property, Media and Entertainment Law Journal: https://ir.lawnet.fordham.edu/iplj/vol22/iss4/3 Bearing Down on Trademark Bullies Irina D. -
Ending Illegitimate Advocacy: Reinvigorating Rule 11 Through Enhancement of the Ethical Duty to Report
OHIO STATE LAW JOURNAL Volume 62, Number 5, 2001 Ending Illegitimate Advocacy: Reinvigorating Rule 11 Through Enhancement of the Ethical Duty to Report LONNIE T. BROWN, JR.* This article seeks to draw attention to certain ethical misconductof litigatorsthat is routinely accepted,tolerated, or ignoredby the legalprofession. Though there are other examples, the authorfocuses on conduct prohibitedby FederalRule of Civil Procedure 11. In particular,the author concentrates on that rule's so- called "safe harbor"provision,which he argues serves to insulate,and possibly encourage, illegitimateadvocacy in theform ofthe assertion and maintenance of frivolous claims, defenses, or other contentions-ironically,the very conduct that the rule was ostensibly intended to deter. Regardlessof the frequency of this sort of misbehavior, the offending attorney can, as a practicalmatter, escape both courtsanctions and professional discipline. In an effort to end the toleration of those who habitually engage in such an illegitimate fashion, the author proposes an enhancement of the ethical duty to report through the creation and maintenance of "litigation misconduct databases" that will monitor this and other unethicallitigation behavior, which presentlyis de facto unregulated. I. INTRODUCTION The legal profession is, by and large, self-regulating.' Beginning as early as 1836 with David Hoffinan's Fifty Resolutions in Regard to Professional * Assistant Professor of Law, University of Illinois College of Law; B.A., Emory University, 1986; J.D., Vanderbilt University Law School, 1989. From 1991 through 1999, the author was an associate and partner in commercial litigation with the law firm of Alston & Bird LLP in Atlanta, Georgia. I would like to express special thanks to Tom Mengler, Richard Painter, and Jim Pfander for a bounty of thoughtful suggestions, advice, and counsel throughout this article's evolution. -
Artikelen PRIVATEERS and TROLLS JOIN the GLOBAL PATENT WARS; CAN COMPETITION AUTHORITIES DISARM THEM?
Mr. M. Dolmans1 Artikelen Privateers and trolls join the global patent wars; can competition authorities disarm them? Computerrecht 2014/37 a component that is subject to network effects, and you can threaten producers with catastrophic loss. On Halloween of 2013, patent assertion company – Patents proliferate in the ICT sector. This is partially Rockstar, owner of one of the largest patent portfo- due to patent mining and strategic patenting – firms lios in the world, 2 filed patent law suits against seven creating dense thickets of overlapping patent claims mobile phone makers and Google in the Texas ‘rocket covering and surrounding a product to block rivals. As docket’. 3 This heralded an escalation in the mobile patent offices are overwhelmed by applications in new, patent world war raging since 2010. fast-moving and complex technology areas, some think they grant patents without adequate review, leading to This ‘Halloween Attack’ is symptomatic of an in- lower patent quality. 4 Yet, in a portfolio, volume makes creasing problem: opportunistic exploitation of up for weakness. Patents are presumed valid, and chal- patents by Patent Assertion Entities (‘PAEs’, or less lenging patents is costly and time-consuming. More politely, ‘trolls’), and the strategic use of such PAEs important, if one patent is annulled or found not in- by firms to hamper their rivals. The war stories from fringed, patentees will have others. Litigation becomes the mobile phone sector are interesting as examples like a fight against the Hydra: chop off one head and of a competitive game, but even more as a harbin- two more grow. -
Some Observations on the Patent Troll Litigation Problem
Intellectual Property& Technology Law Journal Edited by the Technology and Proprietary Rights Group of Weil, Gotshal & Manges LLP VOLUME 26 • NUMBER 8 • AUGUST 2014 Some Observations on the Patent Troll Litigation Problem By Christopher Hu atent infringement cases brought by so-called problem can be addressed. In brief, the problems P patent trolls have received considerable atten- stem from the way nonpracticing entities (NPEs) tion in recent years, enough so that both Congress use or misuse the judicial system, not the US Patent and the White House have chimed in on the sub- Office. Accordingly, the solution primarily involves ject.1 The number of cases filed by patent trolls, the applying existing judicial procedures more vigorously cost of defending or settling these cases, the size with minimal changes to existing substantive law. of some judgments, the perceived frivolousness of some cases, and the use or abuse of litigation as a The Patent Troll “Problem” tool to “extort” settlements have all drawn atten- tion to this issue. Adding to the controversy is the Some Statistics on Patent Troll Litigation sentiment among some that it is inherently unfair NPEs, also known as patent trolls or patent asser- or economically wrong for an entity that does not tion entities (PAEs), are a fact of business life in the practice a patent to profit by asserting it. United States. Definitions of a patent troll vary but Although there is some statistical data concerning the common element of every definition is that a the assertion of patents by trolls, and a considerable patent troll is an entity that does not itself practice a amount of anecdotal evidence, there appear to be patent but instead asserts the patent against entities no rigorous studies on the economic effect of trolls. -
Essay FRIVOLOUS LITIGATION and CIVIL JUSTICE REFORM
RHODE FINAL.DOC 6/6/2005 10:37 AM Essay FRIVOLOUS LITIGATION AND CIVIL JUSTICE REFORM: MISCASTING THE PROBLEM, RECASTING THE SOLUTION DEBORAH L. RHODE† INTRODUCTION When most Americans think about access to law, their primary impression is that the country has too much, not too little. Part of the reason for this perception is the media’s delight in profiling loony litigation. America faces no shortage in supply of cases that seem too big for courts, cases that seem too small, and cases that should never have been cases at all. At one end of the spectrum are megasuits that ambled along for decades, wreaking financial havoc on all but the lawyers.1 At the other end of the spectrum are trivial pursuits: football fans who sued referees,2 prison inmates who wanted a legal right to chunky rather than smooth peanut butter,3 mothers who asked a court to resolve a playground shoving match between their three-year-olds,4 fathers prepared to litigate over their fifteen-year-olds’ positions on high school athletic teams,5 a purchaser of Cracker Jacks who Copyright © 2004 by Deborah L. Rhode. † B.A., J.D. Yale University; Ernest W. McFarland Professor of Law and Director of the Center on Ethics, Stanford University. This essay is based on a lecture given as the Seymour Siegel Memorial Lecture in Ethics at the Duke University School of Law in March 2004. An earlier version of the essay appears as Chapter 2 in DEBORAH L. RHODE, ACCESS TO JUSTICE 24–46 (2004). 1. See DEBORAH L. -
Patent Trolls' Hefty Tolls
0125.012456.84151 3PAT0125.PAT-012456.8 28 | INTELLECTUAL PROPERTY Patent18254520.321.654921 Trolls’ Hefty Tolls Lawmakers target shell companies that threaten small businesses with bogus25167282012456012456 claims of patent violations. BY012456012456012456 JONATHAN GRIFFIN ampires, zombies, werewolves (especially the teen variety) and aliens have captured people’s inter- est once again. On TV, at the movies and in books, these fantastical beasts entertain and thrill those brave enough to watch or read about them. But there is one creature that entertains no one and Vevokes only groans3PAT0125.012456.86465 and sighs when its name is uttered, and that’s the “patent troll.” These real-life ogres are largely to blame for more than doubling the number of patent lawsuits in the last 10 years, and in 2011 alone cost U.S. businesses $29 billion in legal fees. Beyond the Tolkien-inspired name, what is a patent troll? And more important, what, if anything, should state lawmakers do to curb the harm many claim they do to small businesses? Patent trolls,67641353PAT0125.012456.8 formally known as patent assertion entities (PAEs), generally are holding or “shell” companies that don’t manufacture anything but hold a number of patents, typically purchased legally from bankrupt firms. They make their money by sending threatening letters to companies claiming they have been violating one or more of their (often vaguely defined) pat- ents. The letters say that if the companies pay the license fees to use their patents,0125.012456.84151 they won’t be sued. PAEs usually request unreasonable fees in light of the alleged infractions and often fail to give companies any details about under fire. -
Patent Assertion Entity Activity: an Ftc Study
Patent Assertion Entity Activity AN FTC STUDY Federal Trade Commission October 2016 PATENT ASSERTION ENTITY ACTIVITY: AN FTC STUDY A REPORT OF THE FEDERAL TRADE COMMISSION EDITH RAMIREZ Chairwoman MAUREEN K. OHLHAUSEN Commissioner TERRELL MCSWEENY Commissioner Heather Hippsley Chief of Staff David B. Robbins Executive Director Deborah L. Feinstein Director, Bureau of Competition Jessica L. Rich Director, Bureau of Consumer Protection Ginger Zhe Jin Director, Bureau of Economics David Shonka Acting General Counsel Randolph W. Tritell Director, Office of International Affairs Jeanne Bumpus Director, Office of Congressional Relations Tara Isa Koslov Acting Director, Office of Policy Planning Justin Cole Director, Office of Public Affairs Donald S. Clark Secretary of the Commission Andrew I. Gavil Former Director, Office of Policy Planning* Martin S. Gaynor Former Director, Bureau of Economics Francine Lafontaine Former Director, Bureau of Economics Marina Lao Former Director, Office of Policy Planning Report Drafters and Contributors Suzanne Munck, Deputy Director, Office of Policy Planning & Chief Counsel for Intellectual Property Daniel S. Hosken, Deputy Assistant Director, Bureau of Economics John E. Dubiansky, Office of Policy Planning J. Elizabeth Callison, Bureau of Economics Julie A. Carlson, Bureau of Economics Jason O’Connor, Bureau of Economics Elizabeth A. Gillen, Office of Policy Planning Benjamin Chartock, Bureau of Economics Christopher Bryan, Office of Policy Planning Henry C. Su, Office of Chairwoman Edith Ramirez Inquiries -
Hunting Down a Trademark Troll
Feature Trademark troll Hunting down a trademark troll Everyone has heard of patent trolls. Well, Leo Stoller may just be the US’s most notorious trademark troll. Google has decided to take him on informed purchasing decisions (using By Brian E Banner and Anne M Sterba trademarks to locate services and products they like) free from deception and confusion. Some years ago the general patent counsel That is the purpose of trademark law. for BorgWarner, the engine and power train But sometimes people misuse the manufacturer, received a cease-and-desist trademark registration and enforcement letter from attorney Smith. Smith’s letter systems for their own commercial advantage. claimed that BorgWarner was infringing his This often occurs when a big and client’s valuable trademark XYZ for auto sophisticated entity asserts rights in a mark parts. His letter went on to demand that this beyond its legal scope of protection against unauthorised misuse of the same trademark a smaller, less sophisticated opponent. by BorgWarner immediately cease or legal If the target cannot afford an attorney or steps would be instituted to bring about that litigation, it must capitulate to the stronger result. BorgWarner’s counsel researched his entity and accept or negotiate settlement company’s date of first use of the trademark terms. Aggressive brand enforcement is in question and determined that it had allowed under US law, but legally baseless priority by many years over the date of first and vexatious enforcement beyond one’s use of the allegedly infringed mark. An legal rights is not. appropriate response was sent to Smith, who a few days later called and began the Baseless and vexatious enforcement conversation by saying: “Hello, this is Mr The latter course of conduct appears to be Smith, the attorney for the former user of the modus operandi of the infamous Leo the mark XYZ.” Stoller, well known to many active US This exchange illustrates a common trademark attorneys and their clients.