Patent trolls had an especially scary Halloween this year as Senator Orrin Hatch (R-UT) introduced Senate Bill 1612 – the Patent Litigation Integrity Act. The short and succinct bill has one purpose – “To deter abusive patent litigation by targeting the economic incentives that fuel frivolous lawsuits.” The bill would shift litigation costs by granting the prevailing party “reasonable fees and other expenses, including attorney fees.” On defendant’s motion, it would also require plaintiffs to “post a bond sufficient to ensure payment of the accused infringer’s reasonable fees and other expenses, including attorney fees.”
With the high cost of litigation today, many businesses find it easier and cheaper to settle claims of patent infringement, even if a plaintiff’s claims are weak or unsubstantiated. Senator Hatch aims to prevent this practice by requiring plaintiffs to essentially “put their money where their mouth is.” By raising the stakes to litigate patent claims and instituting a default rule of winner-takes-all, bill supporters are hoping “those facing troll threats [will now have] the tools necessary to fight back while also giving trolls a disincentive to bring harassment suits.” The senator has received general kudos from companies and organizations seeking patent litigation reform.
However, if eventually passed, is fee-shifting the best means to deter patent trolls? While the bill allows courts to consider “special circumstances [that would] make an award unjust,” and also consider the “position and conduct of the nonprevailing party or parties,” could the bill also prevent merited claims? As with all obscure legislative phrases, judges will inevitably jump at the chance to define what constitutes “substantially justified [conduct of the nonprevailing party].” However, should the exemption be too narrowly defined, the bill could broadly deter both “abusive patent litigation” and potentially justified but financially weak plaintiff patent infringement claims.
 Patent Litigation Integrity Act of 2013, S. 1612, 113th Cong. (1st Sess. 2013).
 In 2009 the American Intellectual Property Law Association (AIPLA) reported that the median cost per party in patent cases with stakes exceeding $25 million cost over $6.25 million to take the case to trial. In cases where the stakes were between $1-25 million, the median costs were $3.1 million. AMERICAN INTELLECTUAL PROPERTY LAW ASSOCIATION, REPORT OF THE ECONOMIC SURVEY 2009, at I-129.
 Senator Hatch, although in different context. Press Release, Senator Orrin Hatch, Hatch to Senate Democrats: Put Your Money Where Your Mouth Is (Dec. 19, 2012) (on file with author), available at http://www.hatch.senate.gov/public/index.cfm/releases?ID=51ba83f0-c04e-492d-bedb-519f4370d587.
 Julie Samuels, Trolls, Watch Out: Senator Hatch Introduces New Patent Legislation, Electronic Frontier Foundation (Oct. 30, 2013), https://www.eff.org/deeplinks/2013/10/trolls-watch-out-senator-hatch-introduces-new-patent-legislation.
 Id.; Keith Kupferschmid, SIIA Praises Senator Hatch’s New Patent Troll Bill, Software & Information Industry Association (Nov. 1, 2013), http://www.siia.net/blog/index.php/2013/11/siia-praises-senator-hatchs-new-patent-troll-bill/; Press Release, Overstock.com, Inc, Overstock.com Commends Senator Hatch for Introducing Patent Litigation Integrity Act (Oct. 31, 2013) (on file with author), available at http://finance.yahoo.com/news/overstock-com-commends-senator-hatch-190000119.html.
 S.R. 1612.