I admit it. I was one of those people who thought the software patent mess was unfixable. In March, I even wrote a blog post detailing 7 reasons we'll never solve the patent wars. Well, maybe-hopefully-I was a bit too pessimistic.
One of the reasons I cited was:
Patent trolls have a strategic advantage: PAEs [Patent Assertion Entities, often called patent trolls] don't make anything, so they have fewer documents to produce during discovery, which leads to much smaller legal bills, Hopkins said. Just as important, by their very nature, patent trolls have no fear of counter claims or damage to their reputation in the marketplace. That lets PAEs hire lawyers on a contingency basis, an option not available for defendants.
This week the Supreme Court ruled on a pair of cases-neither one software related-that promise to level the playing field, at least a little bit.
Meet Octane and Highmark
According to the Electronic Frontier Foundation, the two cases, Octane and Highmark, will make it easier for patent defendants to recover their attorney's fees when they win weak cases. In Octane, the Supremes ruled unanimously that trial courts should award fees "in the case-by-case exercise of their discretion, considering the totality of the circumstances," a much more lenient standard than that used by the Federal Circuit courts. The Highmark decision tells appeals courts to be more deferential when reviewing patent fee awards.
To be sure, these rulings alone won't solve the software patent wars. (After all, I listed 6 more reasons why that will never happen.) These rulings probably won't affect big, deep-pocketed companies from vigorously defending their patents. And they could reduce the pressure for a full legislative solution to the issue.
But if the SCOTUS' opinions can make patent trolls think twice about the costs of bringing and losing patent case, they could help lower the number of frivolous lawsuits hobbling software startups and spreading confusion that dampens innovation.
I call that progress.