updated 02:21 am EDT, Thu August 2, 2012
Bill may give wide discretion to judges to charge NPEs
A new bipartisan bill introduced by Rep Peter DeFazio (D-OR) in the US House of Representatives seeks to curb frivolous patent litigation by forcing unsuccessful claimants to cover the defendant's legal fees. The Saving High-Tech Innovators from Egregious Legal Disputes (SHIELD) Act could force any plaintiff who is found in court to not have a "reasonable likelihood" (as determined by the judge or jury) of winning the case to pay the opponent's legal fees if the bill passes.
The SHIELD act defines the term "software patent" for the first time, in anything other than generic terms. A software patent is defined as a patent covering "any process that could be implemented in a computer regardless of whether a computer is specifically mentioned in the patent" as well as the hardware required to run the process.
While the term "software patent" is finally defined in the bill for legal purposes, the SHIELD act text is careful to not declare it a specific legal entity or endorse the existence of software patents in any way. The bill contains a clause that it should not be construed as "amending or interpreting categories of patent-eligible subject matter."
Julie Samuels, an attorney on the Electronic Frontier Foundation's payroll supports the bill. She says that the EFF supports "policies and legislation that treat software differently. Fee shifting would empower innovators to fight back, while discouraging trolls from threatening lawsuits to start."
The SHIELD act comes in the wake of a brief governmental discussion of patent licensing, as well as a high-profile court ruling decrying software patents. Boston University researchers estimatedin the end of 2011 that patent trolls have cost US companies in excess of $500 billion since 1990.