The Innovation Act & Loser Pays

Wall Street Journal Letters, April 30, 2015

University Presidents Brown and Clements complain of “loser pays” provisions in the proposed Innovation Act, directed at “patent trolls” and shifting legal fees to the losing party in patent litigation.

The legislation could require a plaintiff bringing a patent action to file a bond to cover the other party’s legal expenses in the event the claim is unsuccessful. The bond could be waived by a judge on a showing of both a meritorious claim and the inability to provide a bond. Such inability would specifically exclude “shell companies” primarily engaged in pursuing patent litigation.

As for the “risk” of bringing a losing action—if you aren’t willing to finance the risk, don’t take it.

Brian R. Merrick, West Barnstable, Mass.



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