Law360, New York ( December 8, 2014, 10:17 AM EST) -- Patent pirate. Patent dealer. The "scourge of technology." There seem to be more alternative monikers for so-called patent trolls than there are methods to deter them from bringing frivolous lawsuits. In theory, one potential deterrent has long been the patent code's fee-shifting provision — after all, potential plaintiffs ought to think twice about suing if bringing a meritless case could leave them paying the defendant's attorneys' fees. In practice, however, the onerous two-prong test that has historically been applied to determine whether a patent case met the "exceptional" criteria to allow a court to award fees to a prevailing defendant had rendered this particular potential deterrent a toothless tiger. In short, the (very) remote threat of fee-shifting offered virtually no disincentive against a patent troll asserting questionable claims in the hopes of extorting a lucrative settlement. Enter Octane Fitness....