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Two recent Supreme Court decisions changed the standards for the award of attorneys’ fees to the prevailing party in patent infringement suits.  Section 285 of the Patent Act provides for the award of fees in “exceptional” cases.  Prior to decisions in Octane Fitness v. Icon Health and Fitness and Highmark Inc. v. Allcare Health Management Systems, Inc., in accordance with Federal Circuit precedent, an exceptional case was one where the District Court found either material inappropriate conduct in the litigation or that the infringement allegation was objectively baseless (so unreasonable that no reasonable litigant could believe it could succeed) and brought in subjective bad faith.  The Federal Circuit rule also required that exceptionality be established by clear and convincing evidence.  The objectively baseless prong was reviewed by the Federal Circuit on appeal de novo.

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James Amend

James M. Amend, Esq. has more than 40 years of intellectual property experience, including seven years as Chief Circuit Mediator for the United States Court of Appeals for the Federal Circuit. He is based out of JAMS Chicago, but is available nationwide. He can be reached at jamend@jamsadr.com.

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