Patent Litigation Fee-Shifting

Supreme Court Opens the Door

In April, the Supreme Court reshaped the patent litigation landscape with its Octane Fitness, LLC v. Icon Health & Fitness and Highmark, Inc v. Allcare Health Management System, Inc., rulings. The statute at issue in both rulings was 35 U.S.C. § 285, which provides that a "court in exceptional cases may award reasonable attorney fees to the prevailing party." The clear implication is that litigants in patent infringement litigation now have a greater opportunity to recover their attorneys' fees and expenses from adverse parties. These rulings serve as a warning to patent litigants to carefully consider their strategy before initiating continuing litigation under some circumstances.