Where is the line telling that a litigation is basically a bullying tool for a patent holder? Accusing party is providing software patent infringement arguments that are laughable to one skilled in art but sound legit to a lawyer. A simple example is infringement chart construction by accusing party including blunt terminology misinterpretation - obviously a work of a lawyer or a council not someone skilled in art. The position of accusing party is filled with examples like this. Is there a way of showing the case is a fraud?

3 Answers 3


In the context of patent cases, this recently went to the Supreme Court. The case is Octane Fitness, LLC v. ICON Health & Fitness, Inc. T

This summary is from www.oyez.org.

Conclusion Decision: 9 votes for Octane Fitness, 0 vote(s) against

Legal provision: Section 285 of the Patent Act

Yes. Justice Sonia Sotomayor delivered the opinion for the 9-0 majority. The Court held that the appellate court construed the attorney fees statute in a manner that was unduly rigid. Restricting the grant of reasonable attorney fees to the prevailing party in all but two exceptions would render the statute meaningless and would contradict patent litigation norms. The appellate court’s interpretation of the statute would also impermissibly encumber the district court’s discretionary power to award such fees. The Court also held that an “exceptional” case is simply one that stands out from others because of its frivolous nature relating to the legal arguments or merits of the claim. District courts may determine exceptionalness by considering the totality of the circumstances on a case-by-case basis. Finally, the Court rejected the appellate court’s “clear and convincing evidence” standard that successful patent litigants would have to establish in order to receive fees. Instead, the Court held that a simple discretionary inquiry would serve to determine whether granting attorney fees is appropriate.

Justice Scalia did not join footnotes 1-3.

  • Does this ruling has a direct effect on the case or District court has to make a ruling based on Supreme Court opinion? Are there any publicly available document showing the litigation process after Supreme Court decision?
    – john
    Nov 6, 2014 at 11:04
  • I'm not an expert on this but from a tabular summary at scotusblog: Apr 29 2014 Judgment REVERSED and case REMANDED. Remanded means sent back to the lower courts to re-do given the decision.
    – George White
    Nov 6, 2014 at 22:46
  • I've found a response by court of appeal regarding the the supreme court opinion. Court of appeal left the district court decision not to award attorney cost. Source: search.rpxcorp.com/lit/… (doc. #241)
    – john
    Nov 7, 2014 at 12:53

There is no bright line. Effectively, you would have to convince a judge & jury that the contentions were on-their-face frivolous, that no one who took a look at the claims & product could reasonably believe that infringement was legitimate.

The chart is generally created by lawyers, but with the assistance of technical experts. I would be surprised if they had created the chart without knowing what the terms mean.

If you believe it's extremely egregious, see if you can't ask for sanctions against the other party. Remember that everything handed to the court is effectively sworn-to.

  • I tried to do that but our lawyers answer was that accusing party is a reputable company with reputable lawyers... Probably we will take action as soon as we get infringement report which will probably be as worthless as infringement chart.
    – john
    Nov 5, 2014 at 14:06

You don't have to worry that much about Patent trolls anymore, now the the court has come up with an action to prevent frivolous patent infringement lawsuits.

US supreme court has a new ruling, which means that if you are a defendant in a patent infringement case and you win, you can recover attorney's fees from the the abusive patent litigants.

That's a good news, since patent trolls will surely have some second thoughts in filing a case against businesses and other inventors.

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