tak[e]a calculated business risk in bringing a suit on contingency, and a patent owner typically has to convince the firm that the patent represents a good investment. Every lawyer worth his or her salt will assume that any given case will proceed through trial, and needs to secure financing to cover those costs.
This is reiterated by a recent order from Judge Leonard Davis, of the Eastern District of Texas, Tyler Division.
This Court has high expectations for the parties and counsel who file patent cases in the Eastern District of Texas, and an attorney who files a patent case has a serious responsibility to ensure that his case has merit and that he is prepared to take the case to trial. See Antonious, 275 F.3d at 1074. Most parties and counsel strive to meet these expectations. Prosecuting and defending patent litigation is undoubtedly expensive for both sides. And that expense must be born by both sides in resolving a dispute on the merits—by settlement or trial. But when it appears to the Court that the cost of the litigation is more of a driving force than the merits of the patent-in-suit, then this Court will not hesitate to put the emphasis back on the merits of the patent-in-suit and consider Rule11 sanctions if necessary.
Via Motion for Sanctions Against Losing Patent Plaintiff – Judge Leonard Davis Opines on When Rule 11 Sanctions Are Proper (emphasis added in Michael Smith’s post)
Certainly, there are instances where cases are filed that wholly lack merit (at least to the point of being sanctionable, as Judge Davis suggests). Nevertheless, I believe those are just that, instances and not the rule. I also believe that, despite East Texas’ unearned reputation as a plaintiff-friendly docket, fewer frivolous cases are filed in Texas than in other jurisdictions because of sharp judges like Judge Davis.
- Eastern District Of Texas – Leveling The Playing Field (gametimeip.com)
- The Lines We Tread (tacticalip.com)
- Software Patent “Rant” Misses The Point (gametimeip.com)