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Patent Litigation Fee-Shifting
In April, the Supreme Court reshaped the patent litigation landscape with its Octane Fitness, LLC v. Icon Health & Fitness and Highmark, Inc. v. Allcare Health Management System, Inc., rulings. The statute at issue in both rulings was 35 U.S.C. ' 285, which provides that a “court in exceptional cases may award reasonable attorney fees to the prevailing party.” The clear implication is that litigants in patent infringement litigation now have a greater opportunity to recover their attorneys' fees and expenses from adverse parties. These rulings serve as a warning to patent litigants to carefully consider their strategy before initiating continuing litigation under some circumstances.
Fee-Shifting in Patent Litigation
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The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
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The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.