US Fee Shifting

Earlier today, the U.S. Supreme Court issued two rulings on attorney fees in patent litigation and fee shifting. In Octane Fitness, LLC v. ICON Health & Fitness, Inc. the court rejected earlier decisions on the ‘exceptional circumstances’ needed to award fees and wrote than exceptional case is “simply one that stands out from others”.

In the other case, Highmark Inc. v. Allcare Health Management System, Inc., the Court dealt with the standard of review of fee shifting decisions and held that the Court of Appeal for the Federal Circuit should not have done a de novo review but should have deferred to the district court’s determination.

The cases are:

Some commentary on the decisions include BloombergPatentlyO, Comparative Patent Remedies, Patent Docs. It will be interesting to see how these cases affect the so-called ‘patent trolls’ as today’s decisions will likely make it easier for courts to order costs in favour of the prevailing party. Awarding costs in favour of the successful party in Canadian litigation is one of the factors that I have previously identified as being a possible reason that Canada has not seen more patent troll litigation.