Courts should stop using the term “nuisance value” in patent cases.  If courts are serious about preserving petitioning rights, encouraging settlement, and keeping § 285 tethered to law rather than intuition, they should retire the term “nuisance value” entirely. The only coherent line is the sham‑litigation line.

The phrase is not a neutral descriptor. It smuggles a legal conclusion—that a lawsuit is illegitimate or abusive—into what should be a disciplined merits analysis. Once a court calls an offer “nuisance value,” it has already tilted the field. That rhetoric is incompatible with the governing constitutional framework for petitioning, with § 285 as interpreted in Octane Fitness, and with the Supreme Court's recognition that even small or nominal patent recoveries are fully legitimate. It also distorts ordinary litigation economics into supposed evidence of misconduct. 

I. “Nuisance value” is doctrinally empty and constitutionally dangerous

Under Noerr‑Pennington, as applied in Professional Real Estate Investors and brought into patent law in Globetrotter, there is a clear constitutional rule: litigation and its attendant communications are immune from sanctions and tort liability unless the case is a sham, meaning:

1. Subjectively baseless – the suit is brought to use the governmental process itself as a weapon, rather than to obtain a favorable outcome and
2. Objectively baseless – no reasonable litigant could realistically expect success on the merits.

Globetrotter squarely holds that patent enforcement letters, threats of suit, and efforts “to compromise the dispute” are all “acts reasonably and normally attendant upon effective litigation” and are protected unless the underlying claim is sham.

Once that is understood, the category “nuisance value settlement offer” dissolves. There are only two possibilities:

• The patent case is a sham. Then all enforcement conduct—including low, cost‑of‑defense, or “pay us to go away” settlements—may be used as evidence of bad faith and can support fee‑shifting or other sanctions.
• The case is not a sham. Then the enforcement and settlement communications are protected petitioning, and the amount demanded—whether $1,000, $50,000, or “less than cost of defense”—has no independent legal significance. It is simply bargaining, even if the court finds that an award of fees under § 285 is warranted.

The label “nuisance value” pretends to occupy some middle ground—a supposedly distinct class of “too‑cheap” settlements that can be punished even when the litigation is concededly non‑sham. Noerr‑Pennington and Globetrotter reject that middle ground. Courts are not permitted to downgrade constitutional immunity because they disapprove of the plaintiff's bargaining strategy.  If judges continue to deploy “nuisance value” as if it marked a real legal category, they will be doing exactly what Noerr‑Pennington forbids: punishing protected petitioning conduct on the basis of rhetoric, not doctrine.

II. Octane Fitness did not authorize courts to punish protected settlement bargaining

Some district courts, and the Federal Circuit's nonprecedential decision in Ortiz, have treated “nuisance value” settlements as a freestanding factor in the § 285 “exceptional case” analysis, as if Octane opened the door. It did not.

Octane did one thing: it replaced a rigid, clear‑and‑convincing standard with a flexible totality‑of‑the‑circumstances test. It did not purport to alter constitutional limits on what kinds of conduct the government may penalize. When the conduct being scrutinized is petitioning activity—filing suits and negotiating settlements—Octane must be read in harmony with Professional Real Estate and Globetrotter, not as an end‑run around them.

That harmony is straightforward:

• The threshold question remains whether the litigation is sham—subjectively and objectively baseless.
• Only after that predicate is met may the court draw adverse inferences from the party's settlement posture and consider it as a § 285 factor.

To do what Ortiz did—call a below‑defense‑cost offer “nuisance value” and weigh it in the exceptionality calculus without any finding of sham—is to collapse that threshold entirely. It quietly transforms constitutionally protected settlement bargaining into punishable “bad conduct” simply because the judge or the defendant dislikes the number.  This is especially heightened because a patent plaintiff rarely controls what a defendant spends on its defense.  If courts keep using “nuisance value” that way, they will have manufactured an extra‑constitutional carve‑out from Noerr‑Pennington, tailored specifically to patent plaintiffs. There is no doctrinal basis for that.

III. Blake v. Robertson shows why “small money” is not “abuse”

The Supreme Court settled, over a century ago, that the economic size of a patent claim has nothing to do with its legitimacy.  In Blake v. Robertson, the patentee prevailed on validity and infringement but ultimately recovered only nominal damages because of proof problems in apportioning profits. The Court did not hint that the case was improper, vexatious, or “nuisance‑level.” The patentee's right to enforce his patent did not depend on the prospect of a large monetary award.

Apply Blake's lesson to today's rhetoric:

• If a patent suit that can yield only nominal damages is still a proper exercise of the right to petition, then the fact that a plaintiff is willing to settle for a small number—or a number below a defendant's cost of defense—cannot, absent sham litigation, imply bad faith.
• Low‑dollar settlements may simply reflect modest provable damages, serious litigation risk, or the same apportionment and proof problems that existed in Blake.

When a court calls a cost‑of‑defense offer “nuisance value,” it implicitly announces a de facto economic floor for legitimate patent enforcement: “real” cases seek more; “nuisance” cases settle cheap. That is flatly at odds with Blake and with the basic structure of patent rights, which makes no distinction between high‑value and low‑value infringements.

If a claim is substantively weak and pursued unreasonably, courts already have tools—Rule 11, § 285, inherent powers—to sanction that conduct. But they must tie the sanction to merits and behavior, not to the size of the demand. “Nuisance value” shortcuts that inquiry by treating low dollars as a proxy for abuse. The Supreme Court has never blessed that proxy, and Blake strongly counsels against it.

IV. Cost‑of‑defense settlements are ordinary, rational economics—not a separate wrong

The modern patent discourse uses “nuisance” as if cost‑of‑defense settlements were unique to “trolls” or abusive campaigns. That is simply false.  In every kind of litigation, rational actors compare:

• expected value of a judgment, discounted by likelihood of success;
• expected cost to reach that judgment;
• time, risk, opportunity cost, and reputational impact.

From that comparison arises a bargaining range. It is entirely normal for parties to settle for less than the expected judgment value when they are risk‑averse, or for less than the anticipated cost of defense when they value certainty and closure. A defendant who settles for $150,000 rather than spend $900,000 on defense has not been “victimized by nuisance”; it has made a straightforward business decision.  This is as true in patent cases as in employment, antitrust, tort, or contract disputes. The notion that demanding “roughly what you'd spend to litigate” is inherently suspect in patent litigation is economically incoherent and doctrinally indefensible.

Courts that treat “nuisance value” as probative of abuse without a sham finding commit two serious errors:

1. They punish routine bargaining. If any offer near or below cost of defense can later be weaponized as “evidence of exceptionality,” rational plaintiffs will stop making early, discounted proposals. The predictable result is fewer settlements, more litigation cost, and more pressure on the court system.
2. They erase the line between hard bargaining and bad faith. A tough opening demand is not bad faith. A discounted settlement proposal is not bad faith. Bad faith arises from pursuing claims that are both subjectively and objectively baseless, i.e., sham litigation. Using “nuisance value” coupled with other aggravating circumstances as a shorthand for a sham litigation finding, thus allowing settlement demands to support liability under § 285, improperly allows courts to slide past the sham analysis and condemn lawful, even desirable, settlement efforts.

Globetrotter anticipated this confusion. It explicitly protects settlement “warnings” and efforts to “compromise the dispute” precisely because robust enforcement and robust settlement go hand in hand. To then condemn an offer as “nuisance value” simply because it is keyed to defense costs is to nullify that protection in practice.

V. The actual “nuisance” precedents do not support using the label in non‑sham cases

The decisions most often cited for “nuisance value” language—Eon‑Net, Blackbird, and Lumen View—do not create a free‑standing “nuisance settlement” doctrine. They all fit neatly within the sham‑litigation framework:

• Eon‑Net involved implausibly broad claim constructions, discovery abuses, and a pattern of suits leveraged solely to extract quick, cheap settlements. The “nuisance value” description was a symptom of a case that was already substantively and procedurally abusive, i.e., sham litigation.
• Blackbird featured weak claims, shifting theories, and settlement demands “far less than the anticipated cost of defense” in the face of clear invalidity/non‑infringement evidence. Again, the low settlements corroborated bad faith and unreasonableness already established on the merits.
• Lumen View rested on an “objectively baseless” theory and a “predatory strategy” expressly aimed at extracting quick payouts. The court's reference to “nuisance settlement” identified motive, i.e., subjective baselessness; it did not bless “low settlements” as an independent ground for sanctions.

In each of these cases, the wrong was sham‑like litigation; “nuisance” language simply described how that wrong manifested in negotiations. None of them hold that a below‑cost‑of‑defense offer, in an otherwise colorable case, is itself probative of exceptionality.  Together, these cases send a clear message: volume and low dollars are not the problem. Sham litigation is the problem. “Nuisance value” is, at most, a descriptive label that may appear in opinions once sham is proved; it is not a legal category courts may wield in otherwise legitimate cases without first finding both subjective baselessness and objective baselessness.

VI. Ortiz shows why the “nuisance value” label is so dangerous—and why it should be retired

Ortiz v. Vizio illustrates, in microcosm, how casual use of “nuisance value” invites doctrinal drift. The district court there found exceptionality based on:

• weaknesses in the plaintiff's damages theory,
• discovery lapses,
• a pattern of filings and dismissals, and
• a settlement demand “below the cost of defense,” which it labeled “nuisance value.”

The Federal Circuit affirmed and explicitly approved the use of that “nuisance value” characterization as part of the totality‑of‑the‑circumstances—even though there was no finding that the claim was subjectively  and objectively baseless under Globetrotter / Professional Real Estate.

That is the problem in stark form:

• Ortiz took language from Eon‑Net, Blackbird, and Lumen View—cases rooted in sham‑like abuses—and divorced it from the sham requirement.
• It cited SFA, Thermolife, and AdjustaCam—cases that reject equating many suits or low settlements with abuse—and then allowed the very inference they caution against.
• It never engaged with Globetrotter or Noerr‑Pennington at all.

The result is a fact‑specific, nonprecedential opinion that nonetheless encourages trial courts to treat any below‑cost‑of‑defense offer as “nuisance value” and to weigh that label against the plaintiff in § 285 decisions—even where the litigation is concededly non‑sham.

The safest, most principled response is not to expand Ortiz. It is to recognize its “nuisance value” reasoning as an unwarranted extension and decline to follow it. The way to do that in practice is straightforward: stop invoking the term “nuisance value” at all. Force the analysis back to the only question that matters:

• Is this litigation sham — pursued in bad faith, i.e., subjectively baseless and objectively baseless—or not?

If yes, fee‑shifting is available, and settlement behavior can confirm that conclusion. If no, settlement conduct is off‑limits as an independent ground for whether a case is exceptional, whatever the dollar figure.

VII. A clear, administrable rule: no “nuisance value” category—only sham vs. non‑sham

Courts do not need, and should not attempt to construct, a special “nuisance value” doctrine. The existing sham‑litigation framework already provides a clear, binary structure:

1. Step 1 – Subjective bad faith.  Ask whether the patentee knew or should have known the claim was baseless (subjectively baseless) and pursued it to use the process as leverage rather than to obtain legitimate relief.
2. Step 2 – Objective baselessness.  Ask whether a reasonable litigant could realistically expect success on validity and infringement. If yes, the case is not objectively baseless; if no, it is.
3. Step 3 – Consequences

1.               If both subjective baselessness and objective baselessness are shown, the case is sham. In that narrow band, low settlements or cost‑of‑defense demands may corroborate improper purpose and support fee‑shifting.

2.               If either element is missing, the case is non‑sham. In that far larger band, settlement offers—regardless of amount—must be treated as protected, legally neutral bargaining.

Within this framework, the term “nuisance value” does no analytical work. It adds only pejorative rhetoric. At best, it distracts from the required inquiry; at worst, it functions as a backdoor to penalize protected conduct in non‑sham cases.  A court that is confident a case is sham should say so, using the established tests. A court that cannot make that finding should not attempt to achieve the same result by relabeling low‑dollar settlements as “nuisance value.”

VIII. Conclusion: why courts should retire the “nuisance value” label

The temptation to call certain patent cases “nuisance suits” and their settlements “nuisance value” is understandable. It is also deeply corrosive, as it:

• It circumvents the constitutional sham‑litigation floor established by Noerr‑Pennington, Professional Real Estate, and Globetrotter.
• It misreads Octane by treating its flexible standard as a license to punish protected petitioning.
• It ignores Blake's clear message that small or nominal recoveries are not illegitimate.
• It distorts ordinary, rational cost‑of‑defense bargaining into “evidence” of abuse.
• It erodes the line between baseless, bad‑faith litigation (which can and should be sanctioned) and hard‑nosed but legitimate enforcement (which should not).

Courts do not need the term “nuisance value” to police truly abusive conduct. Sham litigation doctrine, Rule 11, inherent powers, and § 285—applied properly—are more than sufficient. What the “nuisance value” label does is invite courts to punish plaintiffs not because their claims are both subjectively baseless and objectively baseless, but because judges and defendants dislike the economics of their settlement demands.  That is not law; it is intuition—and it is intuition in open tension with constitutional petitioning rights.

The principled path forward is simple:

• Stop using the term “nuisance value” in opinions and orders.
• Insist on a sham‑litigation finding before allowing settlement conduct to influence fee‑shifting.
• Analyze patent enforcement on the merits and the manner of litigation, not on a visceral reaction to the dollar figure on the table.

Once courts do that, “nuisance value settlement offer” will be revealed for what it is: a rhetorical flourish with no independent legal content. And it will finally be where it belongs—out of our doctrine and out of our decisions.