Using “Octane” to Deter Nuisance Patent Suits

Plaintiffs who file “multiple baseless patent suits to extract nuisance settlements or unnecessary licenses: watch out. District courts are using the broadened standard of an “exceptional case” and the “deterrence” prong of the test outlined in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014) to grant defendants attorney fees “as an instrument of justice.” Lumen View Tech., LLC v. Findthebest.com, Inc., No. 13 CIV. 3599 (DLC), 2014 WL 2440867, at *7 (S.D.N.Y. May 30, 2014). The Supreme Court’s unanimous decision in Octane Fitness a year ago shifted the analysis of whether a case was “exceptional” under 35 U.S.C. §285 from a rigid test with a demanding clear-and-convincing standard of proof, to a holistic, discretionary analysis requiring only a preponderance of the evidence. Compare Octane, 134 S. Ct. at 1756-58, with Brooks Furn