On Wednesday, February 26, 2014, the Supreme Court heard two cases dealing with relief available to a prevailing party in patent litigation. Section 285 of the Patent Act allows the court, upon the finding that the case is “exceptional,” to award reasonable attorney fees to the prevailing party. The Federal Circuit has long held that in order to satisfy the “exceptional” standard there must be a showing that the arguments made to the court are not just “baseless,” “frivolous,” or “objectively unreasonable,” but that the losing party must have known that its arguments are in fact frivolous.
In Octane Fitness, the Court will address whether this two-prong test is the correct standard under Section 285, while in Highmark the Court addressed a narrower issue of whether the District Courts findings under Section 285 are entitled to deference.
- Prof. Gregory Dolin, Co-director, Center for Medicine and Law, University of Baltimore School of Law