Yes, this exactly. Fundamentally in most legal situations, there is a huge asymetary between the litigants. Even in criminal cases you typically have a well funded, well schooled, prosecutor versus a law-ignorant and unfunded defendant.
Perhaps part of the role of the judge is to understand, and correct for, this imbalance - but I'm not sure how effective that is.
But back to the point, rules on legal costs, punitive fees and so on, all fall down when "the boot is on the other foot." There is no way for the small guy to take a big guy to court if legal costs are always paid by the loser, never mind punitive damages.
Equally while it's popular to default to evil-corp (with good reason) it's also important for big-Corp to have, and be able to defend, their intellectual property.
Writing rules that allow for fairness under all these conditions, inside a system that incentives combatents (lawyers) to maximise personal profitability, is, well, tricky.
> But back to the point, rules on legal costs, punitive fees and so on, all fall down when "the boot is on the other foot." There is no way for the small guy to take a big guy to court if legal costs are always paid by the loser, never mind punitive damages.
It's a good point, but I think you can solve that by just giving the judge discretion to scale the punishment appropriately.
> Equally while it's popular to default to evil-corp (with good reason) it's also important for big-Corp to have, and be able to defend, their intellectual property.
This is true as well, and I think if its a good faith disagreement on the law, the other side should pay the legal fees of the winner, but no more than that. But this case seems like bad faith, and I think we should be more aggressive about punishing that.
I agree with your points in concept, but I feel it falls down on implementation.
Relying on a judge to apply rules based on their whim seems prone to failure. Judges are people with all the baggage they bring. There's a reason patent owners like East Texas.
Good Faith is also a nebulous measure. On the face of it Match has a reasonable good-faith argument to complain about Muzmatch in the same space. They may win, they may lose, but either way both sides are spending million(s) on this. By your logic Muzmatch would stand to lose a few million if they lose the case. That may be existential for them, and vacation budget for Match. And we're back to asymetary.
Perhaps part of the role of the judge is to understand, and correct for, this imbalance - but I'm not sure how effective that is.
But back to the point, rules on legal costs, punitive fees and so on, all fall down when "the boot is on the other foot." There is no way for the small guy to take a big guy to court if legal costs are always paid by the loser, never mind punitive damages.
Equally while it's popular to default to evil-corp (with good reason) it's also important for big-Corp to have, and be able to defend, their intellectual property.
Writing rules that allow for fairness under all these conditions, inside a system that incentives combatents (lawyers) to maximise personal profitability, is, well, tricky.