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On Oct. 1, 2013, the U.S. Supreme Court granted certiorari in two different patent infringement cases involving the issue of fee shifting in “exceptional cases” under 35 U.S.C. Section 285. Both of the cases, Highmark Inc. v. Allcare Health Management Systems1 and Octane Fitness v. ICON Health & Fitness,2 involve fee awards sought against non-practicing entities (NPEs), or so-called “patent trolls.” Depending on how the court rules, it may become easier for defendants to recover their attorney fees when forced to defend “objectively baseless” infringement suits brought by patent trolls and others.

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