Octane and Highmark — Supreme Court lowers standard for awarding attorneys’ fees in patent cases

By Jeremy T Elman and Andrew N Stein

The US Supreme Court has issued two related opinions regarding the appropriate standard for awarding attorneys’ fees in patent litigation: Octane Fitness LLC v Icon Health & Fitness Inc and Highmark Inc v Allcare Health Management System Inc. At issue in Octane was whether the ‘exceptional case’ standard for awarding attorneys’ fees in patent litigation under 35 USC § 285 was too high and at issue in Highmark was whether a district court’s award under § 285 should be subject to deference or reviewed de novo. Justice Sonia Sotomayor delivered the opinion of the court in both cases, which was unanimous except for Justice Antonin Scalia disagreeing with three footnotes in Octane.

While the effect of these decisions on reducing patent troll litigation remains to be seen, they could have an immediate impact on the various legislative patent litigation reform proposals being considered in Congress.

The court’s opinions lower the standard for awarding attorneys’ fees and reviewing such decisions, overruling the Federal Circuit’s standard from Brooks Furniture Mfg Inc v Dutailier Int’l Inc, 393 F. 3d 1378 (2005)…

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