The Supreme Court limits the use of settlement communications to establish a sham litigation to cases where both objective and subjective bad faith is found.  This article explores why the same requirement of both objective and subjective bad faith is necessary before a settlement demand can be used as a factor to make a case exceptional. Fee‑shifting in the context of alleged abusive patent enforcement is appropriate only if the underlying claim is both objectively and subjectively baseless; absent that showing, settlement conduct is legally irrelevant to exceptionality and protected speech.

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