IIRC, so long as you made a settlement offer early on in the process for some low value, from that point onwards if the case eventually gets decided in the defendant's favor or even if it doesn't but the judgement awarded is less favorable than the settlement offer, then the plaintiff is liable for any legal fees after the settlement. There have been plaintiffs that won in court, were awarded a judgement, but wound up having to pay more to the defendant than what the judgement was even for. It's a rule 68 offer of judgment that triggers this fee shifting and is meant to disincentivize pointless litigation after a reasonable settlement offer has been made.
Interesting... I've never heard of this and none of our lawyers in frivolous lawsuits have brought it up. (Although none of the cases have gone to trial...)
It would only apply in federal court, there are nuances surrounding the fact that the offer must have been unilaterally better than the actual judgement (i.e. if the offer came with an NDA attached, the judgement probably wouldn't). Here's a great video going over a case where this happened. https://www.youtube.com/watch?v=KSs5bQGxpas
Trolls adore it when people settle out of court - but the cost of occasionally bankrupting people to scare everyone else into compliance tends to be accepted.
Bear in mind that a lot of times the patent troll either has a practicing lawyer on staff or has an intimate relation with one - so they're considering the cost of labour rather than the market rate.
You can hire a lawyer just to give you advice. You don’t have to retain the lawyer for the case. In a lot of cases retaining a lawyer only ends up costing 10-15 hours of their time and if you’re going to court anyways add there fees to your court costs in the counter suit.
