What would generally indicate accusing party's bad faith in patent litigation?

Let's say accusing party knows their patents are very weak/narrow but pretends that proper interpretation is the widest one. Would showing the fact that accusing party knew patents were narrow and purposely did not provide proper infringement arguments be sufficient to sue litigator to show bad faith in original infringement case?

What are necessary factors showing bad faith in US patent litigation, any precedents? What real world actions/facts/context constitute bad faith?


Bad faith definition by Cornell univ.:

A term that generally describes dishonest dealing. Depending on the exact setting, bad faith may mean a dishonest belief or purpose, untrustworthy performance of duties, neglect of fair dealing standards, or a fraudulent intent.

3 Answers 3


Before Octane the standard was “objectively baseless”. Looking portions of the transcript of the case there was an attempt to find words to use to draw a line. Octane proposed: “meritless;” “objectively meritless;” “without substantial merit;” “low likelihood of success;” “unreasonable;” “unreasonably weak;” “a little bit lower than [the Rule 11] standard” and “something more than frivolous.”

Scalia said "it occurs to me that you really cannot answer the question of what adjectives should be attached to “meritless." And then went on to say that in one case the patent might have huge holes in it and in another case it might have medium sized holes in it AND the lawyers acted horribly. The totality of the circumstances being exceptional seems like a good summary of the ruling.

Also, I am not an attorney, but in learning patent law to pass the patent bar exam I quickly saw that law doesn't have much "if A, then B". The idea that one person saying one thing would be determinative, is trying to draw a bright line where none exists.


Bad Faith in patent litigation is as far as I know commonly related to the infringer rather than the litigator/accuser; that is somebody has willfully infringed on a patent as opposed as accidentally not being aware of the patent.

The reverse would probably be know as merritless litigation.

  • Could be. I'm thinking of "Octane Fitness, LLC v. ICON Health & Fitness, Inc." case (see previous question). In original case ICON Health & Fitness was accusing Octane of patent infringement and "bad faith" case is most likely response litigation. (question corrected)
    – john
    Commented Nov 12, 2014 at 11:40

What real world actions/facts/context constitute bad faith?

Any communication (internal or otherwise) showing that the defendant were aware of the patent and that they willfully chose to ignore it. The communication could either be internal emails, internal documentation or in software; the source code for a product -- which is why these items are usually subpoenaed by the litigator to prove any guilt. Similarly, depositions can be a source of such evidence, so even if it was never written down, as simple question of "have you ever discussed patent XXX" if answered affirmatively can prove that the defendant were aware of the subject matter.

  • My question is probably confusing somewhat. The target is to show that patent owner was using patents for bullying via legal system while knowing that his patents lacked inventiveness and were very narrow. That is altering fair competition. It's obvious to one skilled in art that infringement arguments are obviously baseless (similar to cited case). So the outcome of the case would be either patent invalidation (due to huge amount of prior art) or at lest claim narrowing. So what would be the steps to show bad faith of patent holder (exceptional case)?
    – john
    Commented Nov 12, 2014 at 12:09
  • I think your focus on the term "bad faith" is causing some confusion. Typically bad faith describes how a party deals with another party in negotiation. There are many other words that do apply and the supreme court seems to have settled on "exceptional" consdering the totality of the circumstances.
    – George White
    Commented Nov 12, 2014 at 18:41

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