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07.02.18

The Innocent (Wrongly Accused of Patent Infringement) Should Be Fully Compensated by the Aggressor/s and Maintain Basic Privacy

Posted in Law, Patents at 12:00 am by Dr. Roy Schestowitz

UPCA puts all that in jeopardy

Cisco gear

Summary: Questions about legal harassment by patent litigation (often means of compelling parties to settle before court or out of court after a lawsuit) and how that relates to the positive ruling after years of patent bullying by Cisco (against much smaller competitors)

AFTER THAT questionable embargo (ITC simply snubbing the Patent Trial and Appeal Board (PTAB) following a successful inter partes review (IPR)) “Arista Networks Notches Victory In Patent Battle With Cisco,” according to the news. Is sanity being restored at long last? Are plaintiffs presumed needing/bearing the burden of proof and accused parties innocent until proven otherwise (due process)? We certainly hope so.

Last week’s Docket Report about an interesting new turn of event says: “The court granted plaintiff’s motion to compel trial counsel’s pre-suit communications and work product related to defendant’s opinion of counsel defense that defendant withheld as privileged.”

“Are plaintiffs presumed needing/bearing the burden of proof and accused parties innocent until proven otherwise (due process)?”So they basically infringe the privacy of the accused, asking to see anything which was said before a trial even began. This is what makes it rather interesting. Another new Docket Report says: “Following summary judgment of equitable estoppel, the court denied defendant’s motion for attorney fees under 35 U.S.C. § 285 because plaintiff’s litigation positions were not unreasonable.”

In other words, a potentially innocent defendant might still be forced to bear the cost (or foot the bill) of legal defense. This does not bode too well for the defendants’ rights, let alone the privacy (as above). Does one lose one’s privacy as well as financial stability after being falsely accused? That’s not justice and it weaponises patents by giving mere accusations opportunity to harm (with potentially no cost to the bully). Going back to the example of Arista Networks, it has already suffered profoundly — as did its shareholders — as a result of what Cisco did.

“In other words, a potentially innocent defendant might still be forced to bear the cost (or foot the bill) of legal defense.”Frivolous patent lawsuits can, however, cause the plaintiff to pay the lawyers’ bills of the accused, as per another new Docket Report, invoking 35 U.S.C. § 285 again (but with the opposite outcome). In Smart Wearable Technologies Inc. v Fitbit, Inc.: “The court granted defendant’s concurrent motions for attorney fees under 35 U.S.C. § 285 and for sanctions under Rule 11 and awarded $222,937 jointly and severally against plaintiff and plaintiff’s attorneys.”

This is good news and this is how it should always work; it would definitely serve to deter/discourage against frivolous litigation and make patents a lot less scary. That would, in fact, be true justice.

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