Netflix Tries to Fix One Part of the Patent System

” 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”

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