Sunday, March 2, 2014

Supreme Court - Award of Attorney Fees, 35 USC 285 - Professor Mann's Article on Octane Fitness and Highmark Hearings

Today, the award of attorneys fees is a hot issue in patent law. 35 USC 285 states that "the court in exceptional cases may award attorney fees to the prevailing party," but courts rarely award attorneys under 35 USC 285. Thus, some corporations are lobbying Congress to redefine that standard to increase the risk of paying "humongous" attorney fees to cut off patent licensing / troll activities.

Redefining the standard may just generate uncertainty and not help long term. Another approach is to wait for the Supreme Court to clarify the standard. Last week the Supreme Court conducted hearings to consider the substantive standard for awarding attorney fees in Octane Fitness and the standard of review for appeals in Highmark.

I started to read through the Supreme Court hearing transcripts this weekend, but found a nice argument recap by Columbia law professor Ronald Mann Justices hard to read in twin disputes about attorney's fees in patent litigation, which can help one navigate where we are going in this area of the law.

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