​Judges have more discretion to punish patent trolls, but they probably won't

The US Supreme Court just gave judges a little more leverage to punish patent trolls: it defined the word "exceptional." A provision of federal patent law hinged on the definition of the word, stating that the court could charge a lawsuit's losing party with the winner's attorney fees in "exceptional cases." It sounds straightforward: if a lawsuit is obviously frivolous, the patent troll pays its victim's costs. Unfortunately, the Supreme Court said, precedent from a previous case left the rule with "an inflexible framework onto statutory text that is inherently flexible." In other words, it was too difficult to define exactly how exceptional a case was, making it nearly impossible to implement punitive fee-shifting.

To resolve the issue, the Supreme Court went back to the dictionary, declaring that the Patent Act provision's use of "exceptional" should be interpreted by Webster's definition: uncommon, rare or not ordinary. "An exceptional case," Justice Sonia Sotomayor wrote, "is simply one that stands out from the others." This simplified definition will allow district judges to implement the kind of loser-pays fee-shifting found in patent reform bills like the Innovation Act. That said, most judges tend to rule on the conservative side: unless a troll's foul-play is abundantly clear, there is a good chance they'll still go unpunished.

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