Expanding Attorney Fees In IP Cases

Starting in 2014, and continuing through recent months, both the courts and Congress have redefined the standard for awarding attorney fees in IP cases—wholly returning the discretionary nature to district courts for patent and trademark disputes, largely doing so for copyright actions, and providing, as part of the recently-enacted Defend Trade Secrets Act, attorney fees in trade secret cases limited by statute to bad faith or willful and malicious trade secret assertions or misappropriation. Patents Section 285 of the Patent Act authorizes attorney fees in patent cases. It broadly provides district courts with discretionary power: "[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party."²⁵