Attorney Fees in Patent Infringement Cases

The federal statutes governing patent infringement cases include a section that reads “The court in exceptional cases may award reasonable attorney fees to the prevailing party.” 35 U.S.C. 285. This should be of great interest to anyone embroiled in, or anticipating, a patent infringement case. Parties to such actions should carefully plan their complaints, counterclaims and/or defenses to, whenever possible, increase the chances of making a successful claim under the “exceptional case” provision of the statute—and to decrease the chances of their opponent making a successful claim under that provision.

That said the “exceptional case” standard is a difficult one to meet. It must be shown that the equities are such that it would be “grossly unjust” or “unconscionable” for the prevailing party to bear the litigation burdens normally born by prevailing parties in under the American Rule (i.e. the principle in US courts that each party generally bears their own litigation costs).

Exceptional cases exist where the trial court, in its discretion, determines that a plaintiff initiated unjustified litigation, or where the litigation posture of one of the parties constituted a fraud on the Patent and Trademark Office. Although circumstances that justify an award of attorney fees under this statute often overlap with circumstances that might draw other statutory or common law sanctions, the courts do not consider awards of attorney fees under the above statute to be punitive in nature. Rather, the courts consider such awards to be compensatory.

Where attorney fees are recoverable under this statute, other litigation expenses, such as expert’s fees, are also recoverable. The court will review submitted fees for reasonableness.


The information contained in this blog is not legal advice and should not be relied on as such. For legal advice or for answers to specific questions, please contact the blog's author.