Two Recent Court Decisions May Breathe Life Into Counterattacks Against Trolls

By making it easier for defendants accused of infringement to recover attorneys’ fees when they prevail, this spring’s Supreme Court decision in Octane Fitness, LLC v. ICON Health & Fitness, Inc. will complicate the troll business model, but only in the more extreme cases, where the patent owner’s claims are exceptionally weak or its litigation tactics are exceptionally bad, explains Merchant & Gould attorney Daniel McDonald. He considers this case and one other, in the Federal Circuit, that could also make things more difficult for some kinds of cases brought by the non-practicing entities. In the Federal Circuit case, the court vacated in part the dismissal of antitrust claims against a pharmaceutical patent owner.