The Supreme Court is considering reviewing the standards for awarding attorney’s fees in patent suits.  Two cases are petitioning for review after they successfully defended against claims of patent infringement, but were denied attorney’s fees.  The petitions state that awarding attorney’s fees to discourage meritless patent infringement suits is in the best interest of the public.

The current standards are tough to meet, as they call for attorney’s fees in exceptional cases.  These “exceptional” case have included instances were there has been misconduct or where the plaintiff knowingly brought meritless claims.  Many feel that these standards are too high, and that previous rulings leave the deciding judge without the ability to grant fees.

One of the petitioners to the Supreme Court said that the judge will have to find that claims are “both baseless and in bad faith.”  The cases often deal with complex issues in technical areas, and determining that they are meritless is difficult.  The concern is that with the costs of litigation being so high, many companies are forced to settle on these meritless claims.  And they feel that the best deterrent would be to shift fees.

There has been a prevailing attitude of reform among experts who feel that there is a need to address broader the policy implications of granting attorney’s fees.  The Obama administration, Congress, and practitioners in the field have been involved in an on-going conversation over meritless patent infringement lawsuits.  So it may be time for the Supreme Court to weigh in on the standards for awarding fees to a prevailing party in these situations.

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– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California and I am a Rising Star as rated by Super Lawyers Magazine.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +