by Michael M. Rosen
American Enterprise Institute
July 01, 2014
Automatically awarding attorney fees to the prevailing party, at least in patent cases, would be a grave mistake and wreak havoc on our legal system. While it may be common in Britain, European countries, and elsewhere in the world, forcing the losing party to pay the winner’s attorney fees undermines the so-called “American rule” – whereby we’re all entitled to our day in court. Yet there exists a middle ground – particularly in patent cases – that would fairly balance the competing demands of giving each American his or her day in court and the need to weed out meritless lawsuits. It consists of lowering the currently high standard for awarding fees, while not making a fee award the norm. Today, attorney fees are only rarely awarded, but if they could be awarded more easily, then that might discourage some litigants from filing frivolous lawsuits, without discouraging those with legitimate grievances.

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