PublishedFebruary 27, 2014

Will SCOTUS Do Anything About Fee-Shifting?

Yesterday, the U.S. Supreme Court heard arguments in two related patent cases, Octane Fitness LLC v. ICON Health & Fitness LLC and Highmark Inc. v. Allmark Health Management Systems. Both cases have to do with the standard for fee-shifting in patent cases, but it’s the Octane case that is the most relevant.

The statute, 35 U.S.C. § 285, says that,

The court in exceptional cases may award reasonable attorney fees to the prevailing party.

In the Octane case, the question is pretty simple: when is a case “exceptional”? It turns out that the answer isn’t so simple. As the New York Times reported, the Justices were all over the map in trying to figure out how to draw the line. They really struggled in trying to understand what Congress intended.

One argument we’ve heard against patent reform is that the Supreme Court was going to take up the whole fee-shifting issue and might fix everything. After yesterday, I wouldn’t bet on the Court being able to fix fee-shifting or even improve the status quo.

The fact is, we need legislation, a clearer statute that makes it less profitable to be a patent troll. (The Cornyn and Hatch bills both do this.)

So keep going, Senate!

Matt Levy

Previously, Matt was patent counsel at the Computer & Communications Industry Association

More Posts

Congress Can Find Common Ground on Transparency

Postmortems from the November 8th elections are in full swing with pundits and operatives making bold claims about what the results mean for Democrats, Republicans, and the country. The dust still has...

Federal Circuit Temporarily Pauses Judge Connolly’s Disclosure Orders In Delaware

In its order on a mandamus request filed by MAVEXAR-linked entity Nimitz Technologies LLC, the Federal Circuit has temporarily paused Judge Connolly's order that entities in his court disclose details...

With frivolous NPE patent suits clogging courts, counsel’s diligence and ethics suffer

U.S. patent litigation is big business. Billion-dollar judgments, readily available litigation financing, and favorable venues and lax filing standards mean between three and four thousand suits are f...

Subscribe to Patent Progress

No spam. Unsubscribe anytime.