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In most litigation, each party pays its own attorney fees and costs, regardless of the outcome of the case. The Patent Act of 1952, however, allowed for an award of fees to the prevailing party in patent litigation in “exceptional cases” at the discretion of the trial court.

Just what is an “exceptional” case? For many years after adoption of the Patent Act, courts considered the totality of the circumstances of the case in making fee-shifting decisions. Fee-shifting awards under this standard were unusual, but not exceedingly rare. That changed in 2005 with the Federal Circuit’s Brooks Furniture Mfg., Inc. ruling, which adopted a much stricter standard. Under the Brooks Furniture standard, fee awards in patent cases became rare indeed.

The standard changed yet again in May 2014 in the U.S. Supreme Court’s ruling in Octane Fitness, LLC v. Icon Health & Fitness, Inc., bringing it closer to the plain-language meaning of “exceptional” and significantly lowering the burden for defendants to prove that fee-shifting is justified.

Join our panel – including lawyers who recently obtained the largest fee award to date in the post-Octane environment – for an interactive discussion of the impact of the new standard and what it may mean for both plaintiffs and defendants in patent litigation. You cannot afford to miss this session.

CLE credit available in CA, NY, PA, VA (pending), NJ (credit available through reciprocity).

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