In German litigation cases it is common, for the unsuccessful party to bear the costs of the procedure as well of the prevailing party (known in English “fee shifting”), which has so far only been done in extremely rare cases in the United States. As a matter of fact, even the presumably prevailing party, for economic reasons, usually compares themselves to the expected unsuccessful party. Since legal procedure costs are much higher in America than in Germany, which bothers most companies, has this so far led to billion-dollar costs and has mainly been exploited by so-called “trolls”. 

The first step in the direction of change has already been taken, when initially the U.S. Supreme Court (Octane Fitness, 134 S.Ct.1749) passed recent judgments on the cost-assumption question where all the circumstances should be weighed. Shortly after, the U.S. District Court for the Southern District of New York, rejected a troll in a patent infringement suit (Lumen View, 13 CIV. 3599 DLC), in the trial of an IT company and sentenced the troll to reimburse the legal costs of the defendant. Explanation: The lawsuit is “frivolous” and “objectively unreasonable” because “no sensible party could have expected a success.”

This development seems to be a first clear positive signal for the export to the U.S. economy, because they no longer have to perform dubious processes in which they eventually have to pay high sums to trolls. However, since the courts will also refer on the circumstances under which the lawsuits were filed, and not just whether the grounds of the complaint is justified, still a long way until full reimbursement awaits.