Supreme Court Eases Requirements For Recovering Attorney’s Fees In Patent Suits

In a pair of unanimous decisions issued last week, the U.S. Supreme Court made attorney’s fee awards in patent suits easier to obtain, but also less predictable and less subject to scrutiny on appeal. In its decisions in Octane Fitness, LLC v. ICON Health & Fitness, Inc. and Highmark Inc. v. Allcare Health Management System, Inc., the Court loosened the standard for such fee awards, lowered the evidentiary burden from “clear and convincing” evidence to a preponderance of the evidence, and changed the level of appellate review from de novo to the deferential “abuse of discretion” standard. Though some commentators have heralded the decisions as striking a blow against “patent trolls” because they will now face a greater risk of an adverse fee award when they bring weak claims and lose, the new framework will raise the stakes for patent infringement defendants with weak defenses as well.

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