Category Archives: Fee Shifting

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The Threshold of Exceptionality: There Is a Line, and It Can Be Crossed

Non-practicing entity (“NPE”) plaintiffs beware and NPE defendants be delighted: sanctions for objectively unreasonable claims and conduct are alive and well. Defendants in NPE litigations, particularly in the Eastern District of Texas, received encouraging news recently when Judge Gilstrap granted $390,829 in fees to more than 20 defendants in response to motions for attorneys’ fees on … Continue reading this entry

Attorneys' Fees Awarded to Small Business Patent Owner to Advance Considerations of "Compensation and Deterrence"

A recent case in the District of Connecticut demonstrates that courts may be more willing to award attorneys’ fees to a small plaintiff, encouraging such a plaintiff to protect its patent when it is the plaintiff’s “primary business asset[],” even if potential damages for patent infringement are relatively small and the accused products are only … Continue reading this entry

Supreme Court Relaxes “Exceptional” Case Standard in Pair of Fee-Shifting Patent Cases

On April 29, 2014, the Supreme Court handed down decisions in two companion cases that relaxed the “exceptional” case standard under the fee-shifting provision of the Patent Act (35 U.S.C.  § 285). In Octane Fitness, LLC v. Icon Health & Fitness, Inc., No. 12-1184 (2014) and Highmark Inc. v. Allcare Health Management System, Inc., No. … Continue reading this entry

"Patent Reform 2014" White Paper Available for Download

Over the past 2 years I’ve been closely following the slew of patent reform proposals in Congress, the Executive Branch, the Courts, and the 50 States.  I have yet to find a document that lists–much less explains–all the many, many proposals percolating in DC and across the country. So I wrote one: “PATENT REFORM 2014:  A Comprehensive Guide to Current … Continue reading this entry

Will the Supreme Court "Bar-B-Que" the Federal Circuit’s "Exceptional Case" Test? Early Views of Justices Ginsburg and Scalia

On October 1, 2013, the Supreme Court granted certiorari in two cases dealing with the fee-shifting provision in patent cases: Highmark Inc. v. Allcare Health Management Systems (No. 12-1163) and Octane Fitness, LLC v. ICON Health & Fitness, Inc. (No. 12-1184). The fee-shifting provision states that a “court in exceptional cases may award reasonable attorney … Continue reading this entry

Practical Implications of Rep. Goodlatte’s Proposed “Offer of Judgment” in Patent Suits

House Judiciary Chairman Bob Goodlatte (R-Va.) on May 23, 2013 released a discussion draft of legislation designed to curb abusive patent litigation. Among the draft’s various provisions is a section titled “Incentivizing Settlement in Patent Litigation.” This proposal would essentially expand today’s Federal Rule of Civil Procedure 68 “Offer of Judgment” to require “attorneys’ fees” in patent … Continue reading this entry