News & Events

News & Events


The Flexible, Discretionary Standard: Supreme Court Lowers Threshold for the Recovery of Attorneys’ Fees in Patent Cases

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Patent cases are risky and expensive — often extremely expensive. The U.S. Supreme Court’s recent decisions in Octane Fitness LLC and Highmark, Inc. enhance litigation risks in patent infringement suits where high stakes are already at play. Those litigation risks are increased by granting the trial judge broader discretion to make an attorney’s fee award in favor of the prevailing party and by granting more deference to the discretionary award when appealed. The broader discretion/lower threshold imposes a disincentive against bringing a meritless suit. But the broader discretion also requires an ongoing risk-reward analysis for both plaintiffs and defendants. That analysis starts before the case is filed and continues throughout the case. The analysis requires more scrutiny after a party learns of material information affecting the merits of its litigation position and after the judge makes material decisions, intimating that the case is exceptional and may warrant a fee award “considering the totality of the circumstances.”

View the full article (PDF) to learn more about these enhanced litigation risks.

For more information, please contact the Intellectual Property and Technology Group at Lane Powell:

206.223.7000 Seattle
503.778.2100 Portland
907.277.9511 Anchorage