Today, in the Octane Fitness case, the Supreme Court
lowered the bar for establishing an award of attorneys' fees in
"exceptional" patent infringement cases. In the past,
such fees had been very difficult to obtain because of the onerous
standard imposed by the Federal Circuit. Even when accused
companies prevailed against unfounded allegations of patent
infringement, they failed to recoup the millions of dollars
expended on their defense.
Section 285 of the Patent Act states: [t]he
court in exceptional cases may award reasonable attorney fees to
the prevailing party." In order to be deemed an
"exceptional" case, the Federal Circuit had previously
required that it be shown that the litigation was brought in
"bad faith" and was "objectively baseless." A
litigation was deemed to be "objectively baseless" when
"no reasonable litigant could believe it would succeed."
Further, all of this had to be established by "clear and
convincing" evidence.
