Sham litigation is a doctrine that I believe lives on largely because it's fun to say. Lawyers like nothing better than to stand up in court and point out that the whole case is a sham, a phony, a baseless hullabaloo.
Of course, the other side would rather their claims not be constantly accompanied by the word sham, and thus motions to dismiss are fairly common. Visiting Judge Murphy gave us an interesting opinion on the sham litigation doctrine today in Corteva Agriscience LLC v. Inari Agriculture, Inc., C.A. No. 23-1059 (D. Del. May 13, 2025).
The defendant, Inari, had brought a host of counterclaims alleging the usual mess of equitable defenses including patent misuse, unclean hands, and of course, sham litigation. The plaintiff, moved to dismiss these counterclaims arguing that "sham litigation" was not a standalone claim, but instead required some underlying antitrust claim not present here.
Judge Murphy agreed and dismissed the claim:
Inari identified no authority suggesting that sham litigation is a free-floating basis for unenforceability of patents or PVP certificates. In intellectual property cases, sham litigation is typically invoked as an exception to the Noerr-Pennington doctrine that opens up antitrust liability (or other business tort liability) premised on a baseless lawsuit. There is no antitrust claim here . . . . None of Inari’s sham litigation authority suggests that a court may hold a patent unenforceable where the elements of sham litigation are established. Rather, Inari relies on irrelevant antitrust cases. The concept of sham litigation has no apparent place in this case and cannot support an unenforceability counterclaim
Id. at 9 (internal citations omitted)
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