Stephen Holmes Discusses How Upcoming Supreme Court Cases May Affect Patent Troll Litigation in Law360

Law360 reports that the Supreme Court is due to hear arguments in two cases that could substantially decrease the numbers of suits filed by so-called “patent trolls” by making it easier for courts to impose sanctions on plaintiffs who bring weak patent cases. The petitioners in both cases are asking that the standard for awarding attorneys’ fees be relaxed. According to Section 285 of the Patent Act, courts can award attorneys' fees to the victorious party in a patent litigation only if the court deems it an "exceptional" case.

According to Kaye Scholer Intellectual Property Partner Stephen Holmes, “If the Supreme Court accepts those arguments, bringing a weak patent case would become a financially risky proposition, and patent trolls would have to think twice before deciding whether they file a suit that could leave them on the hook for the defendants' fees.” He continued, "At the moment, the test is very strict and very rarely applied. It's very hard to get attorneys' fees as a prevailing defendant, especially against trolls." However, Holmes noted that if it were easier to obtain attorneys’ fees, "trolls would have their money on the line. At the moment, they're not really at risk."

Holmes voiced interest in seeing whether the issue of patent trolls is considered by the justices during the oral arguments, adding that "While Section 285 applies to all patent cases, not just those brought by patent trolls, it will potentially have more impact on cases by patent trolls because those cases often involve weak patents being broadly asserted.”