Professor Crouch provides the bill: http://patentlyo.com/media/2015/02/InnovationAct2015.pdf
§ 285. Fees and other expenses 5 (a) AWARD.—The court shall award, to a prevailing 6 party, reasonable fees and other expenses incurred by that 7 party in connection with a civil action in which any party 8 asserts a claim for relief arising under any Act of Con- 9 gress relating to patents, unless the court finds that the 10 position and conduct of the nonprevailing party or parties 11 were reasonably justified in law and fact or that special 12 circumstances (such as severe economic hardship to a 13 named inventor) make an award unjust.
1. Inventor A's patent, which issued in 2006, is pre-KSR (obviousness), pre-Myriad/Alice (101), and pre-Nautilus (112). The patent is invalidated on re-exam. All claims. Defendant B seeks an award as prevailing party.
(3) EFFECTIVE DATE.—The amendments made 21 by this subsection shall take effect on the date of the 22 enactment of this Act and shall apply to any action 23 for which a complaint is filed on or after the first 24 day of the 6-month period ending on that effective 25 date.
Consider the above without respect to the financial size of A or B.
2. This is not a Coasean world of no transactions costs. However, if Inventor A's patents are enforceable, could A get a bidding war started on A's patent between Defendant B and B's competitor C? B and C may more favorably seek an injunction under eBay.
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