The Latest On Fee-Shifting In Patent Cases

Law360, New York (February 19, 2014, 6:08 PM EST) -- As Congress and the judiciary consider strategies for curbing perceived abuses of the patent system, the practice of fee-shifting — requiring the losing party to pay the prevailing party’s attorneys’ fees — in patent litigation has recently received renewed attention.

The fee-shifting provision in the patent statute, located at 35 U.S.C. § 285, has existed in its current form since 1952:

The court in exceptional cases may award reasonable attorney fees to the prevailing party.

Under the current statute, only cases that qualify as “exceptional” are...
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