The elephant in the room. Or maybe it's something else.

A couple of quick notes on Monday's oral argument at the Supreme Court in Nautilus v. Biosig.

I typically have trouble deciphering from transcripts which way the Court is leaning.  However, in this instance, it's pretty clear that the Federal Circuit's test for indefiniteness of patent claims (i.e., the claim complies with 112, 2nd para. unless it's "insolubly ambiguous") is going in the dumpster.  

Now, it doesn't surprise me that the Supreme Court is going to trash another perfectly useful Federal Circuit rule (presumably in favor of something a lot squishier, but that's another blog post).

What does surprise me is the uniform disdain for the Federal Circuit's test that is articulated by everyone involved in the hearing, including not only the Justices but also the attorneys for both sides.  Usually at least the appellee is in favor of the lower court's test.  Not here.

Also, the elephant in the room here is the fact that, in order to get a patent, the applicants, their attorney or agent, and at least one patent examiner thought they understood the scope of the claims.  I understand that claim construction is a matter of law, and that the PTO's claim construction is not entitled to any deference.  But if you think about it, it's perplexing that the fact that the PTO gave the claim an interpretation at all isn't entitled to some sort of deference.  

I've been trying to wrap my brain around that all morning, and all I've succeeded in doing is giving myself a headache.

Why lawyers are different from regular people

In case you missed it, this is a reenactment of a colloquy between an attorney and a witness from a deposition in a commercial case.  It's undoubtedly been dramatized a bit, although the script purports to be verbatim from the transcript.  

Nothing about this exchange surprises me.  You have a well-prepared witness, who is sticking to his guns, and an examining attorney who is trying to get around the wall the witness has thrown up to avoid giving the answer the attorney is looking for.  It's classic.

Yet another Supreme smackdown for the Federal Circuit.

In two decisions handed down today, Highmark v. Allcare and  Octane Fitness v. ICON Health & Fitness, the Supreme Court overruled the Federal Circuit, holding that a district court's finding of exceptional case under Sec. 285 is reviewed for abuse of discretion.

Two other points of note: under the Federal Circuit's standard, a case is "exceptional" under 285 if it involves “material inappropriate conduct” or is both “objectively baseless” and “brought in subjective bad faith."  The Supreme Court tosses the Federal Circuit's definition, and says "exceptional" means just that: a case "that stands out from others with respect to the substantive strength of a party's litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated."  My initial reaction is that this opens the door to some widely divergent results in exceptional case rulings from different courts.

The Supreme Court also chucks out the Federal Circuit's requirement that exceptional case be proved by clear and convincing evidence, noting that section 285 "imposes no specific evidentiary burden."  So exceptional case under section 285 can be proved by a preponderance of the evidence.  We will see if this really leads to more findings of exceptional case.  My hunch is probably not.  

How long can this go on?

When I started in this business back in the '90s, the Supreme Court rarely got involved in patent cases.  

So far, this term the high court has heard four patent cases.  This week, they hear two more: the first, today, is Nautilus v. Biosig Instruments, related to the standard for indefiniteness of patent claims.  The second, on Wednesday, is Limelight v. Akamai, relating to induced infringement.

The part I can't figure out is what's changed.  Is it Roberts?  The Chief does have more influence than the other justices on which cases are granted certiorari.

Which classic US Supreme Court patent law decision are you?

I got White v. Dunbar!

Least surprising Federal Circuit decision of the year

Pretty much like that.

In what can only be described as the least surprising decision of the year, the Federal Circuit yesterday declined to grant a writ of mandamus and order the USPTO to institute an inter partes review.  Why unsurprising?  Because the relevant statute (35 USC 314(d)) states that the "determination whether to institute an inter partes review...shall be final and nonappealable."  

There is something surprising about this.  Despite this clear statutory language, somebody actually took a shot at trying to get a writ of mandamus.  Actually, three somebodys:  the court handed down three separate decisions, on the same day, with essentially the same holding.  

Happy World IP Day!

We are the world...of intellectual properteeee....

April 26 is World IP Day.  What are you doing to celebrate?

In view of the theme of this year's World IP Day ("Movies -- A Global Passion"), I suggest watching a movie about movies.  How about "The Player" with Tim Robbins?

Design patents: an under-used option.

The USPTO has just announced the issuance design patent no. 700,000.  In contrast, the USPTO has issued well in excess of eight million utility patents.  Last year, the USPTO issued over 250,000 utility patents (hat tip to Dennis Crouch).  

If you're prosecuting claims to an invention that includes structural components, I think it's worth considering whether a design application shouldn't be part of your strategy.  I'm reminded of a case from a few years back between a couple of Asian manufacturers of cellphone components. The four patents in suit were design patents, directed to the LEDs that are commonly used in cellphone displays.  This is a copy of the figures from one of the design patents in suit (click on the figure to embiggen).

US D491,538

The design here related to the shape of the LED, and the electrodes that protrude from the sides of the LED.  The defendant was found to have infringed, even though the entire LED is smaller than a grain of rice and is not normally visible to the user of the cellphone.

You have to wonder, looking at these figures, if the examiner appreciated how tiny these things are, and what their use was going to be.  Fortunately (?) for the patentee, the figures in the patents did not show the LEDs in their actual size. 

Let's Celebrate?

Apparently, it's World Book and Copyright Day.  Who knew?

Out of sequence

It's a car polish AND a software package!

I had occasion recently to use the venerable PatentIn software, which is thoughtfully provided by the USPTO for preparing sequence listings for patent applications.

It had been some years since I used PatentIn.  They're now on Release 3.5.1, which is an interesting coincidence, since it's been almost exactly 3.5 years since it was released.  

The manual for PatentIn includes a helpful "Version Control Log," which indicates that the software was originally prepared by Lockheed Martin (!) in 1998, although the first release did not come until 1999.  The software was updated twice in 1999, twice in 2000 and 2001, and then again in '03, twice in '04, in '06, in '07, and finally in '10.  Since then, nothing.

OK, so that might seem like they're updating this thing on a semi-regular basis.  But here's the thing: release 3.1 came out in January, 2001.  So the current release is based on 13-year-old software.  And it acts like it.  The interface is hopeless, the online help is unhelpful, and the end product is barely decipherable.

If the USPTO is going to require everyone to prepare sequence listings, you'd think that they could provide us something a bit friendlier to use.  At least commission an iPad app, for pete's sake.  How tough could it be?

But this got me to thinking:  is there really any reason for the sequence listing requirements to remain as they are?  I know that part of the original reason for the sequence requirements was to help the USPTO establish a sequence database that examiners could use for searching.  But that was a long time ago, before the entire scientific universe had been uploaded to the internet.  The reason I picked up PatentIn was a "Notice of Sequence Requirements" in a case, where the Examiner noted that a couple of short amino acid sequences in the specification did not appear in the sequence listing.  These were not claimed sequences.  They  are, in fact, sequences that appear in a scientific publication.  The publication is available on the web.  Why is  it still necessary for me to separately digest these for the USPTO?

Anyone? Bueller?  Bueller?

Claim construction in post-grant review

Interesting ruling from the PTAB, instituting inter partes review of US patent 8,112,504, owned by Personal Audio LLC.  Personal Audio is the plaintiff in a patent infringement suit against a number of podcasters, and the request for inter partes review was sought by the Electronic Frontier Foundation.

The interesting bit about this ruling is that there were three claim terms in dispute.  In each instance, the patentee did not offer an alternative claim interpretation to that proposed by the petitioner. Effectively, this amounts to a reliance on the "plain and ordinary meaning" of the terms.  Remember, the Board applies the "broadest reasonable construction" standard in IPR proceedings.  

In this case, the Board decided to apply the petitioner's proposed construction to two of the three disputed terms.  In the third, the Board found a slightly narrower construction in the specification that it liked a bit better.  

So... I guess the take-home message from this is that you'd better propose a claim construction to the Board, 'cause they don't seem to like "plain and ordinary meaning" too much.

Plain 'n' ordinary vanilla

Interesting perspective on the NPE issue

Article in today's online edition of "Minnesota Daily," the newspaper of the University of Minnesota, looks at the patent troll nonpracticing entity patent assertion entity question from the point of view of a major research university.  Interesting wrinkle:  while the University apparently doesn't sell its patents to PAEs, both the University and the University of Minnesota Foundation have invested in well-known "mass patent aggregator" Intellectual Ventures.

By the way, I have to say I like the term "mass patent aggregator."  Sounds badass, like it could have been the technical name for the weapon on the Death Star.

This seems a little...extreme.

According to an AP report, Augustus Powell of Huntsville, Alabama faces two years in federal prison after pleading guilty to...copyright infringement.

Powell was apprehended by police on three separate occasions in possession of a total of over 3000 counterfeit DVD movies and over 2400 counterfeit music CDs.  He was ordered to pay $7000 in restitution.

  

Trolling in the states: update

Tennessee bill that "creates a cause of action against any person who makes a bad faith assertion of patent infringement" is on the governor's desk for signature.

Looks like somebody hit a nerve.

Hal Wegner's complaint that too many professors of IP law at top-ranked universities don't have any practical experience draws a response from a law professor.  I think Hal got to him a little bit. Ouch!  

Pauline, You're Killing Me.

It's no secret that I'm a fan of Judge Newman. I have remarked on many occasions that I find her opinions to be consistently cogent, and correct.  

But now, I'm feeling a bit let down.  Mind you, it's not anything she wrote, or said.  But she recently joined Judge Plager in the Federal Circuit's 2-1 decision in Senju v. Apotex and, I have to say, I think they got it wrong.  Really wrong.  And the frustrating thing for me is that she could just as easily have joined O'Malley's dissent, and gotten it right.

Here's the scenario.  Senju sues Apotex for patent infringement.  The district court finds Senju's patent claims to be infringed, but invalid as obvious over prior art.  OK so far?  Good.

During the course of the suit, Senju puts its patent into reexam. based on the prior art that Apotex relied on to invalidate the claims.  in reexam, Senju narrows the claims that the district court held invalid, so that they're free of the prior art.  A reexamination certificate issues, and Senju files a new suit against Apotex based on the reexamined patent claims.

The district court dismisses the case, on motion from the defendant that the case was barred by "claim preclusion."  For those of you who aren't civil procedure wonks, essentially "claim preclusion" means that this case has already been tried -- it's the same case as the first one.  You get one chance to try a case.  If you don't get it right the first time, you don't get to come back at the same defendant again on the same cause of action.  It's over.

I have to admit, the claim preclusion argument has a certain superficial appeal in this case.  The parties are the same.  The alleged acts of infringement are the same.  Event the asserted patent is the same.

Except the asserted patent isn't the same.  It's been through reexamination. 

Now, those of you who know a thing or two about reexamination know that you can't broaden your claims in reexamination.  Only narrowing amendments are permitted.  So, OK, you might guess at this point that the district court looked at the claims and ruled that, since they had been narrowed in reexamination to avoid the prior art, they now didn't cover the accused products. 

If you guessed that, you'd be wrong.

In fact, the district court didn't make any comparison between the reexamined claims and the accused product.  Instead, it based its ruling on the fact that, because none of the reexamined claims were broader than the original patent claims, no new rights had been created that would support a new cause of action.  In his decision, joined by Judge Newman, Judge Plager agrees, relying heavily on the court's 2012 decision in Aspex Eyewear Inc. v. Marchon Eyewear, Inc.  .

But as Judge O'Malley helpfully points out in her dissent, because the original claims were invalid over prior art, in fact, they conveyed no rights at all.  Only a valid claim conveys a right to exclude.  This is why the majority's reliance on Aspex is inapposite - in Aspex, the claims were held not infringed, so the new, narrower reexamined claims could not possibly create a new cause of action.  In Senju, the claims had  been found to be infringed, but were held invalid over prior art.

The really unfortunate part of the majority decision is this bit:

"Whether it is possible that a reexamination could ever result in the issuance of new patent claims that were so materially different from the original patent claims as to create a new cause of action, but at the same time were sufficiently narrow so as to not violate the rule against reexamined claims being broader than the original claims, is a question about which we need not opine -- that is not the case before us.  We hold that, in the absence of a clear showing that such a material difference in fact exists in a disputed patentable reexamination claim, it can be assumed that the reexamined claims will be a subset of the original claims and that no new cause of action will be created.  This applies whether the judgment in the original suit was based on invalidity of the claims or simply on non-infringement."

Yikes.

If there's a silver lining here, it's that this decision should encourage plaintiffs to employ the reexamination strategy earlier in litigation, and seek a stay from the district court while the reexamination is pending.  That's the best way to make sure that they don't caught in the claim preclusion trap that got Senju .

The future of IP

I keep this on my desk, as a useful dissuasion to any hubris I might feel.

Frivolity ensues

Another day, another article decrying the evil wreaked on our economy by patent trolls non-practicing entities patent assertion entities.  This time, it's by Hector Barreto of the Latino Coalition and former head of the Small Business Administration under the Bush Administration.

Mr. Barreto trots out pretty much all of the arguments we've heard before.  There's one in there in particular that's starting to drive me crazy.

Mr. Barreto argues in favor of the fee-shifting provisions that are in the bills currently working their way through Congress.  He writes:  "A fee shifting or a 'loser pays' system, requiring the plaintiff to cover all legal fees of the defendant if the claim is ruled frivolous or extortive, would also create a disincentive for trolls knowing they will accrue serious losses if they're trying to assert frivolous allegations of infringement."

Here's the thing, Mr. Barreto. Judges already have the power to award fees and costs to a defendant where the court decides that the lawsuit is based on "frivolous or extortive" claims.  We don't need an automatic fee-shifting law to take care of that.  There may be other reasons to have automatic fee-shifting.  Some of them may even be good reasons.  But the need to protect defendants from "frivolous or extortive" claims is not one of them.

Restriction practice run amok

I have a case in front of me with a restriction requirement.  That is, in itself, not unusual.  

It's a national stage of a PCT application - a 371 application, not a bypass continuation.  So the PCT "unity of invention" rules apply. Again, not unusual.

Here's the unusual bit:  The application went through Chapter II, and the ISA - in this instance the EPO -- examined ALL OF THE CLAIMS.  Now, the US Examiner's been handed the Written Opinion, but it's apparently an "undue burden" for the Examiner to copy that into a single Official Action.

Idaho gets into the patent law business.

Idahoans (?) can sleep easier, now that Idaho Governor Butch Otter (not pictured above) has 

signed a bill into law that creates a state cause of action for patent trolling.  

There's a bunch of good stuff in there (and of course, by good, I mean "appalling").  But the thing that really caught my eye is this:  one of the conditions that makes a person a "target" of a troll and thus eligible to file suit under the new law if that person has been sued for patent infringement.  I can't wait to see how this plays out, the first time a defendant in a patent infringement case files a parallel state action seeking damages under the new law.

Idaho is not the only state that has created, or is working on creating, a similar cause of action.  Similar laws are already on the books, or working their way through the state legislature, in Tennesee, Kentucky, Virginia, Maine, Wisconsin, Oregon, Vermont, and New Hampshire. 

It's going to be a mess..

Should Interviews with Patent Examiners be Recorded?

Dennis Crouch's usually helpful blog, Patently-O, today includes a guest post by Professor Bernard Chao of the Sturm College of Law at the University of Denver.  In his post, entitled "Making Examiner Interviews Transparent," Professor Chao advocates recording personal interviews between applicants, their legal representatives, and patent examiners.

Professor Chao suggests that recording examiner interviews would help courts to interpret claims, by clarifying the reasons for allowance of patent claims.  And maybe it would, if it were possible to introduce those recordings into evidence in court.

Let's think about how that would work.  I'm representing my client in a patent infringement case, and my opponent tries to introduce a recording of an Examiner interview into evidence, to assist the court in understanding the meaning of some claim terms.

There's this teeny problem with that idea:  we have this thing in the United States called the "Federal Rules of Evidence."  In particular, there's Rule 802, which forbids admitting hearsay evidence.

Remember, hearsay is defined as an out-of-court statement that is offered to prove the truth of the matter asserted.  A recording of an examiner interview is indisputably an out-of-court statement.  My opponent is planning to introduce those out-of-court statements precisely for the truth of the matter asserted.  I'm not going to let that happen without a fight.  My client deserves the opportunity to cross-examine the examiner about what she said in the interview, what she was thinking about the claims, and how she arrived at her conclusions that the claim was patentable.

No problem, right?  We'll just subpoena the examiner, and get her testimony live.  For the purposes of our hypothetical, let's pretend we're in the Eastern District of Virginia, right next door to the USPTO, and the Examiner is local, and not in Denver or Detroit.  

Here's the main problem with that plan: patent examiners are forbidden by the USPTO from testifying in court about their "quasi-judicial functions," i.e., what they were thinking when they were examining a patent application.

Under these circumstances, I doubt there are many judges who will agree to admit recordings of Examiner interviews into evidence.  

There are other problems with his proposal.  For example, what about exhibits at interviews?  An audio recording is not going to show those.  How is a court supposed to understand the substance of an interview without being able to see what the examiner was looking at?  OK, fine, we'll videotape the interviews.  And we'll require that any exhibits presented at interviews be preserved, presumably by the USPTO, because you're not going to trust the applicant to hold on to that stuff.   They can keep them in the formerly secret atomic bunker up in the mountains of West Virginia. 

Sod Busted

On Wednesday, the Federal Circuit issued a decision in Trebro Manufacturing Inc. v. Firefly Equipment LLC.  This decision is notable because the court reversed a decision by the US District Court for the District of Montana denying a preliminary injunction.  In a 3-0 decision authored by Judge Rader, the Federal Circuit found that the district court had abused its discretion in denying Trebro's motion for a preliminary injunction.  

This can't happen very often.

The picture above shows one of plaintiff/appellant Trebro's machines.  I have no idea if it's covered by the patents in suit, but the nine-year-old part of me thinks it's pretty cool anyway.  I wish I were better with Photoshop, so I could have put Bill Murray in the driver's seat.  

But I digress.  

In order to get a preliminary injunction, the movant has to show a likelihood of success on the merits, among other things.  Now, in order to show likelihood of success on the merits in a patent case, you have to show a likelihood of ... infringement, right?  My sense is that in most patent cases this is not the critical element in deciding whether to grant a motion for preliminary injunction, because the pleading requirements in most jurisdictions these days require a significant amount of diligence on that front before the complaint is filed (usually, the motion falls on the "irreparable harm" or "public interest" prongs of the test, or the defendant raises substantial questions about the patent's validity).

Anyhoo, showing likelihood on the merits in this case involved testimony about the claims, and the allegedly infringing device. The dispute in the case turns on whether the defendant's sod-harvesting equipment meets one of the elements of the plaintiff's patent claims.  The district court, without holding a Markman hearing, decided that there was no likelihood of success, because the accused machine didn't meet the disputed limitation.  

On appeal, the Federal Circuit takes a look at the case, and says, wait a minute.  These devices sure look like they meet the disputed claim terms to us.  They even go so far as to include color photographs of the accused devices in the opinion, and explaining how they meet the disputed limitation.  In concluding, the Federal Circuit comes right out and says that "absent an explicit claim construction favorable to [defendant]...this court holds the district court erred.  That error in law underlies, in part, the district court's abuse of discretion."  The case is remanded for the usual "further proceedings consistent with this opinion."

Now, this has me thinking.  First, as a general matter, does this decision mean that from now on, in order to decide a motion for preliminary injunction, a court's going to have to do an "explicit claim construction?"  Does that mean a full-blown Markman hearing?  If I'm representing a defendant in a patent case, facing a motion for preliminary injunction, I'm sure making that argument.  

Second, with this case in mind specifically, on remand is the district court stuck with the Federal Circuit's claim construction?  There hasn't been a Markman hearing yet.  If I'm representing the defendant, I'm certainly going to demand that.  However, if I'm representing the plaintiff, I'm going to strongly suggest that the court doesn't need to go to all that trouble, now that the Federal Circuit has helpfully explained the meaning of the claims.  And that adopting the Federal Circuit's claim construction at this stage makes the claim interpretation appeal-proof.  Because when the case comes back up to the Federal Circuit on the inevitable appeal, they'd never reverse their own claim construction.

Right?

Generic marks

This is so cool. (Hat tip to kottke.org)  Also, the fact that I find this cool apparently confirms that I am an IP nerd.  In case you had any doubts.

Imagining a post-Cybor world

Late last month, the Supreme Court granted certiorari in Teva v. Sandoz.  The Supremes will be taking up the question of whether claim construction is a matter of law.  This has been a settled issue since the Federal Circuit decided Markman v. Westview and Cybor v. Fas Tech  back in 1998.  Today, I'm imagining what happens if the Supreme Court, in deciding Teva, overrules Cybor.  What might a post-Teva world look like?

Given the current Supreme Court's disdain for long-standing Federal Circuit precedent, and their apparent allergy to bright-line rules (at least when it comes to patent law), I think it's a pretty safe bet that they will hold claim construction to be a mixed question of law and fact.  Such a holding would not only be another in a series of recent slaps in the face of the Federal Circuit, but also have the virtue of muddying the waters.

After such a ruling, District Courts may still hold claim construction hearings, but they will not be able to prevent the parties from presenting testimony in support of their claim constructions, including not only expert witnesses but also fact witnesses.  This will presumably strengthen the lower court's claim construction, as the Federal Circuit will be more constrained to accept the lower court's factual findings. Maybe the Federal Circuit's reversal rate will drop below 50%!

Some courts may be tempted to delay claim construction until trial, particularly if there's a jury involved.  Consider this:  if juries are the triers of fact, and there's a jury demand, the jury could presumably be tasked with deciding the factual issues relating to claim construction.  Is a court going to empanel a jury for a claim construction hearing, and then send them away with instructions not to read anything about the case until they're called back for the trial in a year or two?  You'd need a bigger jury, since it's inevitable that jurors will move out of the jurisdiction in the amount of time that it takes to get from the claim construction hearing to trial.  Courts tend to be relatively solicitous of jurors - are they really going to leave them on the hook for that long?  Can we have one jury for claim construction and another for trial?

I'm sure that there are other worms in this can.  We'll have plenty of time to think of them in the next year, while we wait for the Supreme Court to give us the answer.  

I got trolled by the USPTO

One of the classic "patent troll" business models involves a patentholder offering a fully-paid up license to an alleged infringer.  What makes it trolling is that the fee demanded is so low that it doesn't pay for the potential licensee to challenge the patent -- or even to investigate whether the patent is valid and infringed.  Most end up paying just to make the whole thing go away.

A few weeks back I got a notice from the USPTO demanding money - $180, to be exact - to supplement a purported deficiency in fees paid.  Here's the thing:  I don't owe them $180.  I filed a paper carefully explaining to them, with citations to the proper rules, why I don't owe them $180.  

Today, I got a second notice from the USPTO demanding $180.  You know what I'm going to do?  I'm going to pay it.  Because it doesn't make financial sense for my client to pay me to continue to argue with the USPTO over this amount of money.  And because further argument would hold up the prosecution of their application.

And then, you know what I'm going to do?  I'm going to file a request for a refund.  And I'm going to do it for free.  And I'm going to be RELENTLESS.

Abusive and Frivolous

Today's online edition of the New York Times includes an editorial entitled "Abusive and Frivolous Patent Suits."  Anybody have any doubt from the title about how this one is going to come out?   

The Times is pleased that Congress is on the case.  How anybody who has been paying attention over the last, oh, ten or so years can be sanguine about anything that comes out of Congress these days is a wonderment.

The Times identifies the problem: "businesses are increasingly using patents to sue or threaten to sue other companies to get them to pay licensing fees."  Appalling.  The gall of some companies, trying to license their patents.  For money.  

Let's concede the point: there are a lot of shaky patents floating around out there, especially business method patents.  It's largely a side effect of the USPTO's valiant attempt to deal with the State Street Bank decision back in the '90s.  The Office did the best it could, when it was suddenly and unexpectedly tasked with examining claims on business methods.  That's what the Courts are for, to sort out the good patents from the bad.  And the new post-grant and covered business method patent challenges at the USPTO might go a long way towards solving the problem, if we gave them a chance to work.  

The Times correctly notes that, often, patentholders sue companies that "use" patented technology, rather than the companies that "make" the technology.  They skip over the fact that this is specifically authorized by statute.  It's the second thing in the list, for God's sake, right after "makes." (see 35 USC 271(a)).    I'm sympathetic to small companies that are the victims of a stickup by patentholders who are looking for a quick payout.  Some of those small companies are my clients.  But the problem isn't suits against "users" of patented technology.  The problem is that patent litigation is so expensive that it's cheaper to settle than it is to fight.  That's just as true for the maker of a patented technology as it is for a user.  As long as the patentholder pitches their demand low enough, it makes no financial sense to fight, whether you have deep pockets or not.

To its credit, the Times is justifiably skeptical of the automatic "loser pays" provisions of the current House bill.  The problem with automatic "loser pays" is not that it wouldn't work - in fact, it would probably encourage more defendants to fight back against questionable patents.  No, the problem with "loser pays" is that we don't use that standard for anything else in our jurisprudence.  While I'm usually suspicious of "slippery slope" arguments, in this case, I don't want to find out what happens if Congress kicks that door in.  

How's that for a mixed metaphor?