DON'T COUNT ON GETTING ATTORNEYS' FEES IN PATENT CASES

It isn’t easy to recover attorneys’ fees from one’s adversary in patent cases, and it does not happen often. In the American system overall, the presumption is that each side pays its own attorneys’ fees. Patent cases are not really an exception, notwithstanding the fact that the Patent Law, 35 U.S.C. § 285, grants the court discretion to award attorneys’ fees in “exceptional cases.”

In two recent cases, Old Reliable Wholesale v. Cornell Corp. and iLOR v. Google, the Federal Circuit reiterated that the exceptional case standard is an “exacting” one. Absent misconduct in the course of the litigation or in securing the patent, sanctions may be imposed against the patentee only if both (1) the litigation is brought in subjective bad faith, and (2) the litigation is objectively baseless.” Brooks Furniture Mfg., Inc. v. Dutailer Int’l, Inc., 393 F.3d 1378, 1381 (Fed Cir. 2005).

Patent litigants are sometimes seduced by the prospect of recovering attorney’s fees, and sometimes threaten to seek fees in an effort to intimidate their opponents. But in patent litigation the costs and the stakes will inevitably be high for both sides, and it is more likely than not that the parties will bear their own costs.