Ortiz & Associates Consulting, LLC v. Vizio, Inc.

Whether a non-practicing patent owner that does not manufacture or sell any patented article, and has not granted any ongoing license authorizing third parties to do so, has any obligation under 35 U.S.C. § 287(a) to ensure that unrelated third-party products are marked with patent notice, or to plead compliance with § 287(a) in its complaint.

Whether a patent owner's textually grounded and precedent-based legal position on an unresolved question of statutory interpretation—specifically, whether this Court's decisions in Wine Railway Appliance Co. v. Enterprise Railway Equipment Co., 297 U.S. 387 (1936), and Dunlap v. Schofield, 152 U.S. 244 (1894), exempt non-practicing entities from § 287(a)'s marking requirements—can properly support a finding that the case is "exceptional" under 35 U.S.C. § 285 and Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014), thereby authorizing mandatory attorney fee awards against the patent owner.

Whether the First Amendment and this Court’s sham-litigation doctrine impose a categorical prohibition on courts using settlement offers—including offers below the cost of defense or labeled “nuisance value”—as