In the recent Octane Fitness case (PDF), the Supreme Court changed the test for fee-shifting precisely to deter behavior such as Lumen's, Cote found. Lumen didn't do "any reasonable pre-suit investigation," and filed a number of near-identical "boilerplate" complaints in a short time frame. That all suggests "Lumen’s instigation of baseless litigation is not isolated to this instance, but is instead part of a predatory strategy aimed at reaping financial advantage from the inability or unwillingness of defendants to engage in litigation against even frivolous patent lawsuits."
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