I'm one of those hated attorneys. And, in my experience, while there are issues that sometimes may seem to outsiders like pointless minutae that keep people from getting at the real issues, the rules of civil procedure (especially at the federal level) are designed to do exactly what you want: to facilitate getting to the core of the issue as fast as possible (of course, if the core of the issue is a factual question, this can take a while due to pesky things like discovery and jury trials). Without more detail, the problems you describe sound, with respect, like the complaints of someone who does not really understand how litigation works. Maybe if you could put a little meat on the bones I (and we) could understand your criticisms of the system a little better.

In this example, as you say, "there is a question as to whether this patent is valid or not, and whether it covers this particular issue or not." If the defendant thinks those are real issues, then one of the first things the rules would have you do is to file a motion to dismiss arguing exactly those points. If the judge agrees with you, the case is over and you go home. (Of course, there is the possibility that there are other claims that aren't subject to those arguments, or that the plaintiff could amend the complaint to add new legal theories, but that's another story.)

To the extent it is true that courts "completely front-load all these arcane minor points" this is usually true only to the extent that these arcane issues are actually dispositive.

EDIT: Try thinking about it this way: whether an issue is arcane, and not what a person might think is the "real" core of the issue, is sometimes orthogonal to whether that issue is dispositive. And there are usually good reasons for this--though reasons that may not be obvious to non-lawyers. This can, and should, result in courts spending what may seem to the untrained eye like too much time on arcane but dispositive issues in an attempt to resolve a case efficiently.

Wow, a real patent lawyer in a patent law thread. You don't belong here, but I'll upvote whatever you have to write.

I have a comment and a question:

The comment. Summary judgement does not accomplish what I think sheepleherd was proposing. As you say, if you get a summary judgment against you, you go home. That means that a judge has to be convinced that there is definitely no case in order to issue one. What's needed, rather, is a speedy determination of who seems to be in the right. It should not be final but should determine who pays going forward.

The question. What do you see as the problem in cases like this? Or do you see a problem?

Well, first of all, I have to confess: I'm not a patent lawyer. I'm a regulatory lawyer.

And, just so we have our terminology straight, summary judgment is actually different from the motion-to-dismiss phase I was describing. In super simple terms, the latter happens after the parties have has the chance to gather evidence and seeks to determine whether it is legally possible for a party to win at trial. Therefore it occurs late in litigation, after parties have already spent a lot of money (but still before trial). The former typically occurs before evidence is even gathered to determine whether the plaintiff could legally win even if all of his or her allegations were factually true.

As for the threshold fee-shifting idea: I think it's probably not a good one. There are cases where it could help, but if the judge gets her threshold determination wrong, then it makes life even harder for a less wealthy litigant. The simplest solution, which many countries have implemented, is simply a loser pays system for legal fees. I'm not sure this is ideal either, but I think it is at least better.

There also is usually a possibility that the judge could require the loser to pay after the fact, if she determines that the case was especially un-meritorious. Another possible reform would be to loosen the standard that judges apply in choosing whether to award fees in this way.

I was pointing out a thought process that I thought would work better and more rationally (it's the way parents adjudicate disputes, i.e. what's really at stake here, and yes, parents do get to legislate) rather than making an "official proposal".

But inasmuch as it was an official proposal, the proposition was not that the all costs would shift to one party; it was that if you lost the preliminary ruling on the main point you could decide if you wanted to spend money on further litigation or look for a settlement; in a more nuanced way, if the preliminary ruling was 80-20 culpability/damages conceivably the winner might also wish to litigate further. I wasn't shifting the legal costs, I was educating the decisions along the way.

There potentially is something to be gained from more "loser pays" legal fees, but I was not making that proposal.

Patent lawyer or no, you're still more qualified than the average participant.

I'm not sure what criteria you're using to judge that the proposal would be worse for a less wealthy litigant. Surely the proposal would be better in cases where one side is clearly right? The cost of patent litigation is currently huge. The only way a non-wealthy litigant can participate is with lawyers on contingency. No?

But I suspect fixing the legal costs is only a part of the patent problem. My understanding is that cases like the OP regularly go to verdict and find for the troll.

In my cases, I felt that the court spent time on issues that were not only minor, but the court left them unopined. This just encourages laywers to keep doing it, it earns them more money.

For example, and since you are an attorney I'll let you research this rather than give you the answer, does a signature on a shareholder petition under corporate by-laws require the word "certify" to be a valid signature? How much should be spent determining the answer to that? Seems pretty cut and dried to me, whether it is or is not required it's hardly breaking new legal ground. What's the answer? (and no weaseling out by saying "it depends". If you want to say "it depends", you need to finish the sentence, on what, and in that case the answer is what.)

I have no idea! I'm not a corporate lawyer.

And, frankly, I'm not surprised that it took a fair amount of legal work to figure out the answer. I, like you I take it, have the intuition that the answer should be "no." But I'm also not confident that the answer is not "yes." If the answer is "yes," I'd say the odds are 50/50 that there is a good reason behind it. (If, as one should, you count as a good reason "there is binding precedent in this circuit that says it must use the word 'certify'" then the odds jump to pretty near 100%.)

But I will say that, if you're trying to argue that the legal system is too arcane and complicated, a lawsuit over a "shareholder petition under corporate by-laws" is an exceptionally poor example. This is an especially technical areas of law that, among other things, makes the almost explicit assumption that, given the subject matter, parties will be unusually sophisticated and well resourced.

There is no answer, there is no law, no standard, no precedent, which any "unusually sophisticated" lawyer looking at it for a few minutes would realize. But instead of informing the "unusually sophisticated" court honestly "hey, I had this idea, but I researched it and it doesn't look like there is anything directly applicable" (you know, truth, whole truth, nothing but, and no standing by while the court is misled) lawyers get to raise a huge holy stink about it. After I pay for the huge holy stink, do I get an answer? nope. That means that it could come up again tomorrow and I'd have to pay for it again.

Lawyers have huge laundry lists of these ideas they get to spitball, except they get paid to do it, the more they spitball the more they get paid, and none of it has anything to do with the matter at hand, the legitimate grievance that the two sides have and are trying to resolve.

I just found it on more than one occasion to be unusually playground bullying rather than sophisticated. And on the same-ish topic as sophistication, lawyers like to couch things they say in the cloak of "truth and justice", like for instance, how many times have I heard that the right to petition is so sacrosanct that it's in our Declaration of Independence? Yet went you actually try to pursue a right to petition you are bogged down in lawyerly bullshit.

> Lawyers have huge laundry lists of these ideas they get to spitball, except they get paid to do it, the more they spitball the more they get paid

This is a pretty weird way to look at it. I would have thought it went more like this: opposing lawyers come up with some clever arguments to oppose your claim. One of them, I take it, was that the signatures on the petition were not valid because the word "certify" did not appear. Because the lawyers on the other side made this argument, your lawyers had to respond to it to reduce the chances that you would lose the case. Presumably the judge did not rule on that particular question because you wound up losing the case on some other ground (or settling). Is that right?

I should also add: I'm not here to argue that lawyers are always good at their jobs and that they always give issues the attention they deserve (no more and no less). This sort of risk assessment is a big part of the job, and it's not always easy. And when there is a lot of money involved, it can be rational to spend a lot of money to address relatively small risks. It could also have been that the certification question was a stupid one that your lawyers should only have spent an hour or two on. But instead, through poor judgment or something else, chose to go waaaay down the rabbit hole. I have no idea. But these things do happen. Lawyers are people, after all. One particular set of lawyers' poor judgment (if that is indeed what actually happened) is not a deep flaw in our legal system.

(By the way: what does the Constitutional "Right to Petition" have to do with any of this? I hope you don't think it has anything to do with your shareholder petition case, since the Constitution only protects your right to "petition the GOVERNMENT for a redress of grievances." It doesn't protect your right to bring a shareholder petition, and it most certainly does not protect your right to win every lawsuit that you think you're entitled to win.)

thanks for asking what does "constitutional right to petition" have to do with this, by thinking about how to explain it I figured out what I meant overall. I meant it in the sense that "rights to petition" and "rights to vote" are so fundamental they flow into documents such as the Constitution rather than flowing from it.

Rights to petition are, in a sense, even more fundamental than the right to vote, because historically speaking many undemocratic systems have been sustained because they listen to petitions. The worst dictators are the ones who kill you for petitioning.

This lawsuit I'm talking about was about both rights to vote and rights to petition and the lawsuit asked for nothing but rights to vote. They were gauranteed by the legal documents, ignored by the board, and only a lawyer would twist the very clear wording to say something else, based on standards that do not actually exist; and only a judge who was an attorney would listen to such crap.

I can see that in a messier case you might see a reason for seemingly nonsensical procedures, but this was so clean that all the worthlessness of our legal system was exposed. And I chose the Declaration not the Constitution because it also lays out "or you lose your claim to authority" which is pretty much how I feel to.

Not a lawyer, but if this specific issue is important to you, could you define it in your contract or by-laws somewhere?

the language was already in the founding documents. yes, with hindsight, more language could have been added; but what I'm saying is, the language that was there is perfectly clear; it's lawyers and their bullshit who create the need for more language that needs to be written by lawyers and guess what, when that language is ignored, another lawsuit, and more lawyer bullshit. What I'm saying is, the system as practiced is completely broken, and it is the fault of the people who maintain the system, and they are called lawyers.

> one of the first things the rules would have you do is to file a motion to dismiss arguing exactly those points.

Great! How much would getting to that point typically cost a defendant in the case of a fairly obvious bullshit patent?

Possibly quite a bit, if you want it done well. And that's a problem. But that has little to do with the point I was making.

Where do the "quite a bit" costs come from then, if they don't come from the arcana?

Not really. They usually come from the fact that legal services are just exceptionally expensive. This, in turn, is largely driven by the fact that, for companies with a lot of money and a lot at stake, legal services are also exceptionally valuable. This drives up rates across the entire industry.

There are other dynamics as well, but I think this one dominates.

I wasn't disagreeing, i was asking earnestly.

Also, you didn't answer the question as asked. If the goal is "file motion telling judge 'patent is not valid' without doing literally anything else", what exactly is the money spent on?

And I meant to give an earnest answer! If you are the defendant in a relatively simple patent case, where the patent is clearly invalid, the right procedural move is probably a motion to dismiss, which could come right at the beginning of the litigation. But merely drafting that motion will be costly, simply due to the cost of legal services.

EDIT: Of course, it often is not actually clear whether a patent is valid and enforceable or not. This could require evidence from experts about obviousness, prior art, etc. Assembling all of this in a way that is fair to both sides, and presenting it to the court in a way that is clear and compelling, is difficult, as one might expect. So this idealized situation may not be too common.

EDIT 2: In case it's not obvious, this shouldn't be taken as legal advice. Every situation is different, so you should hire yourself a lawyer, and not act based on general ruminations you read on the Internet by people like me. I am not your lawyer.

Ok, i guess you simply underestimated just how little the layman knows. :D

> drafting that motion

I'm going by this particular case, where the patent is obvious and patent bullshit. I would imagine that here a motion would be a form letter that could be handled in less than an hour? (Going by experiences in the german law system where i've seen a form letter to an unpaying client go out, cost and take effect, for half an hour billed.)

And yeah, in other cases it may be less obvious. I'm only talking about the case at hand, and other similar ones, where the patent can be seen to be invalid by anyone with good high school education and above.

Heck, shouldn't it be possible to informally request from the judge to say whether he already sees the patent is bullshit or not?

Whether you want to just rely on a short letter is, I guess, a matter of your appetite for risk. Ideally you would at least provide some argument about why the patent is unenforceable. (In fact, most jurisdictions have rules that require this sort of explanation.) And this would be framed knowing that the other side will have potentially very talented lawyers arguing that it is enforceable.

Since you don't get to file an unlimited number of motions to dismiss on the same topic (for obvious reasons), most litigants find that they want to put a substantial amount of effort into making their case as persuasive as possible before a judge sees it, even if the matter is fairly straightforward. It's the lawyer's job to help the client understand these levels of risk, and the client's job to decide how much money he wants to spend, given those risks.

Nothing astounds me more than the Herculean lengths a judge will go to to avoid the 'core legal questions' in a case. Not only in the judgement, but by disallowing even the most basic testimony or evidence to be presented. While this violates due process or 'the principle of natural justice', no judge on appeal ever seems to rule that the lower court judge was acting in an obviously corrupt manner. The fiction of the system of justice has to be preserved.

This is further compounded by how vague judges will be in their decisions in some attempt to prevent a successful appeal. The judgements relation to the facts are so intentionally obtuse.

> no judge on appeal ever seems to rule that the lower court judge was acting in an obviously corrupt manner.

There are a few reasons for this: 1. Judges are not legislators. Judges apply the law, and if they don't like the law, or if the law is contradictory, they write a note in the decision asking legistlators to review the law.

2. If a lower-court judge is corrupt, but didn't violate legal procedure, what does "corrupt" mean?

Many judges seem to exert themselves in finding excuses to not have to apply the law, to not have to do their job at all, and to escape consideration of the lawsuit at hand.

A higher court will only consider an error in law from a lower court. But when the lower court commits an violation of natural justice/due process by not even considering what the original lawsuit is about and being incredibly obtuse about what they did consider, a higher court has nothing to rule on.

The supreme court routinely smacks down the federal circuit verbally for not following higher court guidance, but it seems to have no repercussions.

You are right. Having money equips someone to at least be able to put up a fight to reach a conclusion but that is not the heart of the issue.

Whether you have money or not the real problem is the threat of loss due to the /process/ as opposed the merits and likely result of the case. That is the problem that needs to be solved.

I'm not saying I know how to remove the expense of the process out of the equation but that is what needs to be done.

Your suggestion is a good one. If the result itself is clearer earlier it would take some of the power out of the threat of expensive process.

Many of the issues raised by your comment are the result of civil procedural rules. These rules are not intentionally designed to postpone rulings on the merits, and instead were built on historical understandings of how a dispute should be fairly addressed: 1) communicate problem to adverse party 2) adverse party responds 3) fact-finding 4) written arguments aimed at resolution 5) trial by judge/peers (if necessary).

I don't believe that moving #4 (or even #5) earlier in the process maximizes the possibility of a logically/legally sound conclusion, which IMO, is the purpose of the justice system. Then again, your comment has identified speed as a priority, not a thorough examination of the merits.

If the procedural rules don't offend you, then we might just be talking about expensive lawyers. Not all lawyers are expensive.

Not speed but cost of which time is definitely a factor.

Getting to the merits is the point but the point is often lost in the game of the process. True statement?

>Getting to the merits is the point but the point is often lost in the game of the process. True statement?

True, but you're assuming that the process and the merits are totally distinct (in fact, my own comment reads that way ;]).

But, as another commenter noted, processes themselves can influence merits (e.g. missing a filing deadline, or enforcing discovery requests).

I would love to see more negative publicity used. A PR firm is a fraction of the cost of a law firm but can do a lot more damage to the other side. Unfortunately lawyers have this dogma that says never ever ever ever ever try to use negative publicity. This is obviously self serving. Most lawyers are clueless about social media post AOL and so this would take the battle into unfamiliar territory. Unfortunately the judges are in the same boat: Taking a legal matter to court of public opinion is to them like taking getting your gall bladder removed by a witch doctor.

Negative PR is used; unfortunately, it's used on the judge to turn the judge against the other side. It comes so thick and fast the judges get sick of it... yet, they are influenced by it, and they bluster but issue no pain to the offenders. And don't try it if you are not a lawyer, lawyers in court are a protected class.

Wouldn't that just result in a new normal where both sides immediately fight it out in the court of public opinion? How would that be an improvement?

Because it's vastly cheaper and accessible. It's also crowdsourceable and can be done by anybody without having to pass any bar exams.