October 16, 2014 Articles

Are Attorney Fees Now Easier for Patent Owners to Recover Absent Willful Infringement?

Supreme Court expands authorization for a district court judge to impose a fee award

BY Mark M. Supko

Through two decisions issued on April 29, 2014, the Supreme Court of the United States substantially changed the legal landscape for successful patent litigants seeking to recover their attorney fees from the losing party. In Octane Fitness v. ICON Health & Fitness, 134 S. Ct. 1749 (2014), the Supreme Court overturned a prior decision of the U.S. Court of Appeals for the Federal Circuit interpreting section 285 of the Patent Statute to authorize an award of attorney fees in only very narrow circumstances, adopting instead a broad "totality of the circumstances" test for determining whether a case qualifies as "exceptional" and thus warrants an award of attorney fees to the prevailing party. The Court also rejected the Federal Circuit's application of the "clear and convincing" evidentiary standard to "exceptional case" determinations in patent cases, holding that such a showing need only be made by a preponderance of the evidence. Similarly, in Highmark Inc. v. Allcare Health Management System, Inc., 134 S. Ct. 1744 (2014), the Supreme Court held that a district court's determinations under section 285 will be reviewed on appeal under an "abuse of discretion" standard, reflecting the discretionary nature of the new test articulated in Octane Fitness.

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