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Expert Analysis

The Fee-Shifting Climate After Octane And Highmark

Law360, New York (August 28, 2014, 7:46 AM EDT) -- Since 1952, the Patent Act has provided that courts "in exceptional cases may award reasonable attorney fees to the prevailing party."[1] Such diversions from the "American Rule," which requires each party to pay its own legal fees, are intended to discourage frivolous or abusive lawsuits. For most of the last decade, however, this fee-shifting provision was applied relatively infrequently. Under the previous Federal Circuit standard, awards of attorneys' fees were only granted to parties that could prove that litigation brought against them was both "objectively baseless" and "in subjective bad faith."[2]...

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