Intellectual Property » Patent Fee-Shifting Trends, Post-Octane

Patent Fee-Shifting Trends, Post-Octane

May 14, 2015

In the 10 months that have passed since the Supreme Court’s ruling in Octane Fitness, there has been a significant increase in the number of motions made for attorneys’ fees, and in the attorneys’ fees actually awarded to prevailing parties, according to research assistant and Berkeley School of Law student Hannah Jiam. The Octane ruling made it easier for the prevailing party to recover legal costs in patent cases. The Supreme Court failed to define what makes an “exceptional” case, however, which “reinforces a district court’s ability to use its discretion when deciding whether or not to award attorneys’ fees in ‘exceptional’ cases,” Jiam writes. Without further explanation, the vague nature of the term is likely to lead to forum shopping in districts where fee awards are more or less likely.

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