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"Patents and Loser Pays: Why Not?"

A new paper (PDF) by Solveig Singleton for the Progress and Freedom Foundation:

[This] paper explores the idea that adopting the "loser pays" rule in most patent litigation could help deter opportunistic behavior in prosecuting patents. The "loser pays" rule is not a popular one in the United States, but there are some good arguments that it ought to be. The paper first describes current fee shifting rules in U.S. patent suits, and explains how "loser pays" differs. It next considers arguments pro and con; most importantly, the loser pays rule has been said to give an unfair advantage to well-heeled litigants. The experience from countries where "loser pays" is the general rule, however, suggests that such effects are avoidable, while the benefits of the rule in deterring speculative suits are significant.

(via James DeLong)



Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.