The U.S. in general does not make losers pay, which is good because "loser pays" is just a terrible idea wholly unsuitable for a country that ties most valuable rights to litigation.

I've been working on a pro bono project where a small town is suing a big company for industrial pollution. It's a very hard case to win--the town has already given up a lot of arguments by having waited too long (believing that the government would protect them), and the other side has a ton of money. But being hard doesn't mean it isn't meritorious. This is a suit that needs to be brought and deserves to be brought, but never would in a loser-pays system. And maybe that would be okay in Europe, where they pay for a big government to enforce these sorts of things, but we don't do that in the U.S. Instead, we depend on private litigation to enforce peoples' rights.

Hmm. I'm not actually sure this suit wouldn't be brought in a loser-pays system. As I understand, under loser-pays, the judge has considerable discretion to decide how much the loser should pay. I would expect the difference in resources to be taken into account.

I'm not sure how this would play out, but I don't necessarily think it would be a non-starter.

In any case I think that for patent infringement suits specifically, loser-pays is urgently needed. I'm sure it's not perfect, but the benefits would far outweigh the costs. We don't need to extend loser-pays to other kinds of litigations unless and until we're comfortable doing that.

The mere possibility of having to pay would stifle most such suits, and in many (most?) fields the problem is not too few suits, but not enough suits. Using the legal system to create prospective deterrent effects, as ours does, is not compatible with mechanisms that discourage suits, because ultimately that makes rule breaking profitable for rule breakers.

I also strongly disagree that we need special rules for patent litigation. There is a rhyme and reason to the rules for cost shifting, one that doesn't depend on the subject matter of the litigation. What you seem to be implying is that patent litigants are less likely than other kind of litigants to being meritorious suits, and indeed that a patent suit is more likely than not non-meritorious. If that is the case, then the problem isn't who pays for a losing suit, but the law that creates enough wiggle room that these loser cases are being brought.

The way our litigation system fights meritless litigation is to make it relatively cheap to dispose of meritless suits. As an outsider to the practice, it seems to me that one of the big problems with patent suits in practice is that it's a relatively complex, fact-specific inquiry to determine patent validity. The usual way to address this is to add additional, easy to prove thresholds that let a case be dismissed without consideration of involved questions.

> The usual way to address this is to add additional, easy to prove thresholds that let a case be dismissed without consideration of involved questions.

This, absolutely. Giving defendants an inexpensive way to challenge patents which should not have been issued and get the case dropped would basically end this nonsense as soon at it was enacted.

As it is now, the only reason trolls are successful is because they know any legal costs are going to be far more than what they are attempting to extort, so the economics force most businesses to concede the fight.