I am a true believer that litigation should only be used when a reasonable compromise cannot be reached between two parties. A reasonable compromise in either a patent, trademark or design patent infringement requires both parties to give something up rather than attempt to obtain a one-sided settlement agreement. Let’s all agree that getting everything you want in a dispute is not a settlement at all. Stubbornly refusing to concede on certain minor points is a waste of everyone’s time, including the Court.
In the event that a reasonable compromise cannot be reached in an IP litigation matter and both parties are forced to continue to litigate, I am advocating that a considerable portion if not all of the legal fees be awarded against the party pushing for an untenable settlement position. This should also include refusing reasonable compromises from a business perspective. The prolonging of court proceedings in an attempt to outspend the other party and to instill litigation fatigue should also be a basis for awarding entire legal fees to the winning party.
The consequence of facing this liability in a patent infringement matter for example, could dissuade parties from proceeding with questionable legal proceedings. Access to justice for all is fundamental to our legal system. When a large company simply decides to out-spend the other side, it must be prepared to face an award of considerable legal fees should the matter be decided against it. I am also advocating for smaller companies or individuals to face the same consequences if they proceed on meritless claims in the hopes of leveraging a payout.
A party being awarded the entire legal fees incurred in an IP litigation case would truly make them a Harvester of Sorrow!