The American judicial system has long held to a general principle that each party in a dispute should pay for its own legal fees, win or lose.
But when is a lawsuit—in particular, a patent lawsuit—so egregious that an exception should be made? And which judges are best suited to make that decision? That’s the question that the US Supreme Court will grapple with on Wednesday as it hears two related cases: Octane Fitness v. Icon Health and Fitness and Highmark v.
Allcare Management Systems.
The cases come at a time when Congress is also grappling with the concept of fee-shifting in patent cases.
A bill passed by the House of Representatives, dubbed the Innovation Act, would create fee-shifting in many, if not most, patent cases; the proposal will be debated by the Senate this year.