What Happened
In 2014, the Supreme Court made it easier for courts to award attorney fees in patent cases. Before then, fees were rare—only for truly egregious conduct. The case was Octane Fitness v. ICON, and it gave judges more discretion to award fees in "exceptional cases."
Why It Matters
Patent litigation is expensive. A typical case costs hundreds of thousands of dollars, sometimes millions. For small companies, the threat of litigation costs can be as powerful as the threat of losing. Fee shifting changes that calculus.
After Octane, courts look at whether a case "stands out" from others—either because the legal positions were unusually weak or because the litigation conduct was unreasonable. This might mean asserting patents that are clearly invalid, making frivolous arguments, or engaging in discovery abuses.
Fees aren't automatic, but they're more common than before—awarded in maybe 10-15% of cases that reach a judgment. The standard is now "preponderance of the evidence" (more likely than not), not "clear and convincing evidence" (highly probable). And the amount can be substantial—median awards are in the $500,000 to $1 million range.
What You Should Know
If you're considering suing for patent infringement, be realistic about your case strength. Don't assert patents you haven't properly evaluated. Don't make arguments you can't support. The risk of fee shifting should factor into your litigation strategy.
If you're defending, don't assume you'll get fees even if you win. You still need to show the case was exceptional. But the possibility gives you leverage in settlement negotiations and can deter weak cases from being filed in the first place.
The goal isn't to chill legitimate enforcement—it's to discourage abuse. Most cases won't trigger fee awards. But the ones that do send a message.