The Octane ruling now gives the district courts more discretion to award attorney fees. The standard for awarding fees has been lowered from "objectively baseless", which is impractical to meet, to "in the case-by-case exercise of their discretion, considering the totality of the circumstances".
The Highmark ruling makes it harder for the district court's discretionary decision to fee-shift to be overturned by the Federal Circuit. Previously, the Federal Circuit would overturn many attorney fee-shifting decisions from the district courts. The Supreme Court ruled that their test was "unduly rigid".
The ability for courts to award attorney fees discourages trolls from flooding the courts with weak or spurious cases. Patent defendants are more likely to defend themselves and less likely to quickly settle.
These rulings are interesting because they are occurring while patent reform legislation is stalling in Congress. They are a poor substitute for legislation, which can address other patent troll issues like challenging bad patents and improving patent transparency, but give us hope for reform from our judicial system.
I'm glad that this is the bandaid that the court is able to utilize while the patent reform is still pending in legislation. It is a positive step forward to signal to patent trolls that their actions are recognized and must be stopped. Since the motivation behind most patent trolling is for money, it aligns the solution well that the discipline is a fee. Hopefully the court will be able to arrive to an agreement with the reform soon so that real sustainable could occur and more transparency is determined on the federal and district circuit.
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