March 11, 2015 Articles

Tips for Responding to Patent Trolls

Some of the most promising causes of action for responding to abusive tactics are standard business torts.

By Bradley Nelson

Much of the recent discussion about dealing with abusive litigation and licensing campaigns by so-called patent trolls and other non-practicing entities has focused on one of two things: (1) legislative attempts to pass new laws, or amend the Patent Act, to make life more difficult for trolls; and (2) court decisions such as the Supreme Court’s recent opinions in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014), and Highmark v Allcare Health Management System, Inc., 134 S. Ct. 1744 (2014), which significantly relaxed the standard for awarding attorney fees under 35 U.S.C. § 285 against anyone, including trolls, accused of filing meritless cases or engaging in abusive litigation tactics. Often overlooked is a third category: whether a party subjected to a suit or licensing campaign by a patent troll may have a basis for going on the offensive, by asserting claims or counterclaims seeking damages or other relief. That third option is the subject of this article.

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