A Comparison of the United States and European Fee-Shifting Standards and the Impact of the Proposed Trans-Pacific Partnership FTA on National Fee Shifting Law

Abstract

Fee shifting laws are designed to decrease the number of weak, nuisance lawsuits. However, patent-specific fee-shifting laws dramatically differ between countries and even jurisdictions within the U.S. This paper first analyzes the statutory foundations of patent fee shifting laws in the U.S. against select European jurisdictions that practice the loser pays all model. It then provides an empirical comparison of the decision signals such laws send to patent holders, and the affect these signals have in terms of the frequency of nuisance suits, especially those brought by non-practicing entities (NPEs). Finally, this paper evaluates how the proposed TPP, in its currently available version, would affect the proposed compulsory fee-shifting SHIELD Act (Saving High-tech Innovators from Egregious Legal Disputes) in the U.S. and the equivalent free shifting laws in Europe.