Personal Injury and Patent Law? How the “Innovation Act” Could Affect the Practice of Personal Injury Law

by Eric Fredrickson, Esq., Harman Law LLC

A bipartisan group of lawmakers in the U.S. House of Representatives pushed for H.R. 3309, ironically titled the “Innovation Act,” that drastically curtails the ability of patent holders to enforce their intellectual property rights.  The bill passed the House today, December 5 with a 325-91 vote. The bill now goes to the U.S. Senate where it is expected to pass.

Here is H.R. 3309, including as passed in the House and as referred to the Senate. 

  • As of this post, the .pdf version of the bill is not yet available from the GPO but the text version is available at this link.

Why personal injury attorneys should take note.

Personal injury attorneys have been largely uninterested in the current debate regarding patent litigation and so-called “patent trolls.”  But it is time to take note.  This law could have devastating consequences for the entire plaintiffs’ bar.

The following components of the law could have impact on personal injury attorneys and their clients.

Among other “gifts” to defendants, the Innovation Act proposes:

  • A “loser pays” system, where the losing party must pay all costs and attorneys’ fees of the prevailing part.
  • Notice pleading would be eliminated in favor of an extreme pleading standard that will be difficult to meet without first obtaining discovery.
  • Plaintiffs would be required to pay the cost of obtaining most kinds of discovery (including defense attorneys’ fees).
  • All cases will be automatically stayed until the patent claim construction process is complete.

News report summarizes the bill’s “pro corporate” bent vs. burden on small inventors and others

Do not think that these ideas will stay neatly contained within the patent litigation field. 

If this law passes, corporate interests will certainly seek to achieve similar bars to justice in other areas.  First they came for the inventors . . .

Consider each of these changes, all of which could just as easily be implemented in other types of litigation including personal injury.

  • First, this country has long resisted loser pays laws, which heavily favor the richest among us.  The establishment of a sweeping, high-profile precedent for loser pays would be a sad day for those who already have the least access to justice.
  • Second, the new pleading requirement of the Innovation Act is incredibly burdensome.  It will be difficult to satisfy.  It will be expensive.  It will stifle the ability to force the truth into the light of day.  And corporate interests will undoubtedly seek to expand it to your practice area next.
  • Third, how would your practice change if you had to pay the defendants (and their lawyers) for their time and expenses to respond to discovery?  In many cases these expenses will be hundreds of thousands of dollars.  That is a steep price for admission to the courtroom, even for a case with clear liability and significant damages.
  • Finally, imagine if you were required to hire expert witnesses, engage in expert discovery, conduct Daubert briefing, argue a Daubert hearing, and then wait for a ruling regarding every single medical or scientific issue before you could commence a lawsuit.  That is equivalent to what the Innovation Act does to inventors by automatically staying cases until claim construction is complete.

The Innovation Act represents a frightening new milestone that could tip the scales of justice in favor of corporate defendants.  In the past, at least some legislators have joined together to resist knee-jerk efforts to “reform” victims out of their day in court.  This time, politicians of all stripes and parties have somehow been convinced to help corporations lock the courthouse door.

Stand up and be heard. Protect your clients, your practice and the legal system.

We urge you to stand up.  Speak to your elected officials.  Get this issue on the agenda of your professional and community organizations.  When people try to “rig the system” in their favor, we personal injury attorneys must stand up for our clients, our communities, and our legal system.

Eric Fredrickson represents inventors and patent holders around the nation.  He also represents victims of pharmaceutical, medical device, and other healthcare-related injuries, giving him a unique perspective on this issue.  Contact Eric at 1-888-55-HARMAN or


Contact your U.S. Senator

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Patent Reform Bill Passes the House 325-91. Here’s What you Need to Know. The Washington Post, December 5, 2013

Caution Urged as House Panel Takes Up Patent Reform. The National Law Journal, October 29, 2013