This Comment discusses two Supreme Court cases, Octane Fitness, LLC v. ICON Health & Fitness, Inc. and Highmark, Inc. v. Allcare Health Management Systems, Inc., and their impact on patent litigation involving patent trolls. Prior to these cases, patent troll litigation was on a continual rise and Congress’s proposed measures were failing to curb the problem. Many companies, particularly startups, were left vulnerable to a patent troll threat because they could not afford the potential court costs to defend their case. This problem was compounded by the fact that traditional attorney fee shifting awards were extremely rigid and difficult to prove. This Comment argues that Octane and Highmark are able to hinder patent troll litigation because they reduce the standard by which attorney fees may be awarded to the prevailing party. Moreover, Octane and Highmark are better able to address this problem better than other proposed and implemented solutions such as Alice Corp. Pty. v. CLS Bank and the Innovation Act. The argument is that Octane and Highmark allow an easier award of attorney fees while minimizing the adverse affects the other two alternatives carry. Lastly, by implementing a mandatory bonding requirement on patent plaintiffs, the patent troll business model will be severely impacted and result in a decline in frivolous patent litigation.
Defeating Trolls: The Impact Of Octane and Highmark On Patent Trolls,
35 Loy. L.A. Ent. L. Rev. 319
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