Y'all know I think that requiring subjective/objective bad faith to get fees is not a correct interpretation of 285.
I've been updating my book, reading about the liability standards the CAFC has imposed for, e.g., making frivolous claims to a customer of X that X's products infringe and so the customer needs a license.
The standard? Objective and subjective baselessness, because of the right to petition. This one they've got right. See Hunter Douglas, Inc. v. Harmonic Design, Inc., 153 F.3d 1318, 1336–37 (Fed. Cir. 1998), overruled on other grounds, Midwest Industries, Inc. v. Karavan Trailers, Inc., 175 F.3d 1356 (Fed. Cir. 1999) (requiring plaintiff to plead and prove bad faith to prevail on state law tort claims based upon statements of infringement in the marketplace); In re Innovatio IP Ventures, LLC Patent Litig., 921 F. Supp.2d 903 (N.D. Ill. 2013) (same and providing a lengthy discussion); Clearplay, Inc. v. Nissim Corp., 2011 WL 3878363 (S.D. Fla. Sept. 2, 2011) (same); Contech Stormwater Solutions, Inc. v. Baysaver Tech., Inc.,534 F. Supp. 2d 616(D. Md. 2008) (requiring bad faith and other elements of state law tort claims for pre-suit letters);Zenith Electronics Corp. v. Exzec, Inc., 182 F.3d 1340, 1353–54 (Fed. Cir. 1999) (adopting the bad-faith requirement for Lanham Act claims).
But does it make one whit of sense to intepret a fee shifting statute to require the same proof that the First Amendment requires before imposing liability for suing? If that is a correct reading of the First Amendment, then NO fee shifting statute is constitutional unless it meets this objective/subjective requirement.
Okay, back to the book. The IP Ventures case is, by the way, really interesting.