The practice of intellectual property law has become more challenging in recent years. Supreme Court decisions such as eBay, KSR, Alice, Octane Fitness, and Halo Electronics, as well as the new U.S. Patent and Trademark Office proceedings brought into existence by the Leahy-Smith America Invents Act of 2011 (AIA), have increased the cost and risk of patent litigation for patent holders and alleged infringers alike.
With a median cost of $3–5 million through trial ($1–4 million to defend), patent litigation has always been an expensive undertaking. In the wake of Octane Fitness, with more fee-shifting motions being filed and numerous awards above $1 million (about one-quarter of them in favor of patent holders), litigants now have to factor in the possibility of being on the hook for the opposing party’s attorney fees. And Halo has reopened the door to enhanced damages, potentially increasing the motivation to litigate longer rather than settle.