Carving up costs in patent litigation when there is no clear winner

What you need to know

• A recent decision of the Full Court of the Federal Court of Australia demonstrates the way costs may be apportioned using an 'issue based' approach where the parties have each enjoyed a degree of success.
• The decision indicates that it is not only the number of issues on which a party has succeeded, but also the amount of time spent on those issues and their overall significance to the matter as a whole, that will come into play when costs are apportioned.
• With the potential for costs to be awarded in this manner, we may see future patent litigants giving greater consideration to the issues they press or concede, and placing less emphasis on 'peripheral' issues that are not key issues in a dispute.