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Articles

Supreme Court to evaluate appellate standards for fee-shifting

October 3, 2013

Articles

Supreme Court to evaluate appellate standards for fee-shifting

October 3, 2013

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In patent litigation, as in American litigation generally, litigants typically bear their own legal expenses.  However, the Patent Act empowers courts to “shift” fees—e.g., to require the plaintiff to bear the defendant’s expenses, or vice versa—in “exceptional cases.”  35 U.S.C. § 285.  On October 1, 2013, the Supreme Court granted certiorari in two patent cases concerning the standards that should apply in reviewing district courts’ treatment of fee-shifting motions under this section.

Rob Courtney, an Associate in Fish’s Twin Cities office, gives a high-level overview of the two cases that were granted certiorari – Highmark Inc v. Allcare Health Management Systems, Inc. and Octane Fitness, LLC v. Icon Health & Fitness, Inc.

The Supreme Court’s decision to grant certiorari to two § 285 cases comes after several prominent voices this summer drew attention to that section’s fee-shifting provisions.  In June of this year, the Obama administration called on Congress to give district courts more discretion to order fee-shifting under § 285.

Read the full article on Fish’s Litigation Blog.

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