Obtaining attorneys’ fees in patent cases is a lot easier than it used to be, as several recent Federal Circuit decisions show.
The default rule in American litigation is that parties pay their own way, but fees can be awarded in “exceptional” patent cases. Meeting that standard used to apply only in cases involving material misconduct, or an objectively baseless complaint brought in bad faith.
The Supreme Court lowered that bar in a 2014 decision, which empowered trial courts to make the loser pay the winner’s fees in any patent case that “stands out from others.”
Since then, “the ...