The big patent-related news in the US this past week has been the Supreme Court’s dual decisions in Octane Fitness, LLC v. ICON Health & Fitness, Inc. [PDF, 112kB] and Highmark, Inc. v. Allcare Health Management System, Inc. [PDF, 80kB], in which the court confirmed that district courts have discretion to determine whether a case is ‘exceptional’, such that attorney fees may be awarded against a losing party under section 285 of the US patent code. Furthermore, the Supreme Court has ruled that the the role of an appeals court (i.e. the US Court of Appeals for the Federal Circuit), in reviewing a decision of a district court to award attorney fees, is to determine whether or not the lower court has abused its discretion.
These decisions of the Supreme Court overturn a standard set by the Federal Court in 2005, which started from a presumption that patent cases are litigated in good faith, and then required that a party show, by ‘clear and convincing evidence’ either that ‘there has been some material inappropriate conduct’ or that the litigation is both ‘brought in subjective bad faith’ and ‘objectively baseless’ before an award of attorney fees can be made.
By coincidence, the Federal Court of Australia has also issued a decision in the past few days relating to a ‘special case’ of fee awards which is provided for under the Australian Patents Act 1990. Specifically, in AstraZeneca AB v Alphapharm Pty Ltd [2014] FCA 419, the patentee has been awarded a higher level of attorney fees under section 19 of the Patents Act, which relates to Certificates of Validity.
Tags: Attorney fees, Australia, Costs, Litigation, Patent law, Patent litigation, Trolls, US
