Patent Lawyers’ Liability for Fees Pending at Federal Circuit

The nation’s top patent court is grappling with an appeal seeking to levy attorneys’ fees against lawyers for a thinly capitalized plaintiff, a twist on the current fee-shifting law that could deter some of the country’s most prolific filers of infringement lawsuits.

The Patent Act’s attorneys’ current fee-shifting provision dates to 1952 and provides that in “exceptional cases” courts can award “reasonable” attorneys’ fees to the “prevailing party.” But traditionally those fees have been assessed against losing parties, not their attorneys. The defense bar has complained in recent years that patent assertion companies easily sidestep such fees by creating ‘judgment ...