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Patent Infringement Claims and Attorney Fees

If you bring a claim for patent infringement, a recent case from the U.S. Supreme Court has made recovery of attorneys' fees easier than ever before. Typically, the party that wins the lawsuit in a patent infringement case has a right to seek attorneys' fees if a case is considered "exceptional" under a particular statute. These types of fee arrangements are meant to serve as a deterrent to parties who want to bring unwarranted suits on invalid or unenforceable patents.

In this case, the Supreme Court re-examined the statute that allows trial courts to award attorneys' fees, as well as the relevant case law, and reversed the lower court's decision. The Court held that the framework for granting attorney's fees was "overly rigid."

Under the old test, a party could seek fees if there was "litigation misconduct," meaning that there was willful infringement, fraud or inequitable conduct in obtaining the patent. Another way to show a case was exceptional was to show "subjective bad faith and objective baselessness," meaning the plaintiff knew the case was baseless and no reasonable litigant could believe they would prevail. The litigant would also have to prove either of these things by "clear and convincing evidence," which creates a fairly high standard.

In analyzing the old test, the Supreme Court found that if there was litigation misconduct, the parties could handle this by bringing a motion for sanctions. The second part of the test was too restrictive because a litigant should be able to show either the plaintiff knew the case was baseless or that no reasonable litigant could believe he or she could prevail.

Under the new test, a case would be considered exceptional if it "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." The test directs trial courts to consider each case individually, considering the "totality of the circumstances." The Supreme Court also found that trial courts would no longer need to use a "clear and convincing evidence" standard, but could instead apply a "preponderance of the evidence," standard, meaning, does the evidence show, more likely than not, that certain facts are true.

If you are seeking representation from an attorney in a patent infringement case, make sure you understand how all of the facts in your case could impact your ability to receive or pay attorneys' fees down the line. Under this new test, in which the Supreme Court has urged application of a more holistic and equitable approach, attorneys' fees may be easier to recover.

For more information about this case or patent infringement in general, contact the experienced Orange County IP lawyers at Myers Berstein today.

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