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Robert L. Maier, Patent and Trademark Law Robert L. Maier

Just before the holidays, the Supreme Court and Federal Circuit issued three opinions related to the award of attorney fees in patent cases. The decisions confirm that the “American Rule”—under which each side in a case pays its own attorney fees—remains the norm, unless a statutory or contractual exception applies. These opinions also confirm that appellate courts will continue to carefully scrutinize these fee awards, but will also uphold them when appropriate.

Background

Litigation in the United States traditionally operates under the “American Rule,” under which each party to a case typically—win, lose, or draw—pays its own attorney fees, unless a statutory or contractual exception applies. See, e.g., Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242 (2010). This approach is in contrast to the “English Rule,” under which the losing party by default pays the other party’s legal fees.

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