Supreme Court hears cases that could affect patent trolling

The cases pertain to the rules in place for how one side of a case may find the other side’s lawsuit objectively baseless

The economic perils of patent trolling are well known by now in the U.S. Of course, they do not stop those considered patent trolls — usually bigger companies — from relentlessly pursuing other, smaller companies. Smaller businesses often have smaller wallets, and litigation fees are notoriously expensive. Thus, rather than lose money that could be spent on research or making products better in court, companies forfeit and cede to paying the patent troll to license its intellectual property. Such a system is anti-innovation, and allows patent trolls to — sometimes wrongfully — maintain dominance in markets where they do not contribute other than to function as owners of the intellectual property.

The U.S. government has taken up the issue over the last year of trying to amend the patent system to make it more equitable to companies against which lawsuits are brought. One of the core arguments against patent trolls is the cost it brings to defendants in terms of attorney fees. Who should pay whose fees is a much-belabored point in patent legislation, but the Supreme Court is hearing two cases in order to get closer to a determining ruling on assessing attorneys’ fees in patent legislation. The SCOTUS blog names the two cases the Supreme Court is hearing on February 26: “The first case the Justices will hear (Octane Fitness v. Icon Health and Fitness) considers the standard for awarding the fees in the first instance.  The second case (Highmark Inc. v. Allcare Health Management System) considers the standard of review the Federal Circuit should use to review district court decisions under the statute.”

Contributing Author

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Juliana Kenny

Juliana Kenny is a contributor to, covering a range of topics including patent litigation, conflict mineral laws, executive compensation, and antitrust regulation. Juliana earned B.A.s...

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