“Standing Out” – The Supreme Court’s Redefined Standard for Fee Shifting in Patent Litigation, and How It Might Impact “Patent Troll” Litigation (Live MBHB Webinar)

On April 29, 2014, the Supreme Court ruled on two cases related to the Patent Act’s fee shifting provision under 35 U.S.C. § 285.  In Octane Fitness, LLC v. ICON Health & Fitness, Inc., the Court defined an “exceptional” case entitled to fee-shifting to be “simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.”  In Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., the Court held that because such a determination is at the discretion of the trial court judge, it should be reviewed with an abuse-of-discretion standard.  These cases have been watched closely because of their potential impact on so-called “patent trolls.”

This webinar will cover the potential implications of the Octane and Highmark decisions on fee-shifting in patent litigation, especially in cases involving these “patent trolls.”  Topics will include:

  • An overview of the fee shifting statute §285 and how it has been applied in federal court

  • A review of the Octane and Highmark cases and an analysis of the new standard for obtaining attorney fees

  • A discussion of how the broadened “exceptional case” test may be applied by courts going forward, including a review of the fee-shifting provision under the Copyright Act

  • A discussion of the implications of these decisions on “patent troll” litigations, and the impact they might have on the legislation aimed at curbing abusive litigation currently pending in Congress


Presenters: MBHB attorneys Andrew W. Williams, Ph.D. and Erin R. Woelker

Access an archived audio version of this webinar here. NOTE: MCLE credit is not available for this archived recording.

McDonnell Boehnen Hulbert & Berghoff LLP is committed to educating clients and friends of the firm with respect to significant developments and trends in the areas of intellectual property law.