Have you ever wished you could make the abusive party on the other side of your patent suit pay for your attorney's fees? The U.S. Supreme Court has made your wish a reality. Recent U.S. Supreme Court precedent has made it easier to obtain attorney's fees in patent cases, especially in lawsuits initiated by non-practicing entities (NPEs). Colloquially known as “patent trolls,” NPEs center their business model on the compilation and assertion of patents against companies in the hopes of receiving licensing fees or court awarded judgments. Although currently not illegal, the business practices of NPEs have typically been frowned upon by both practitioners and legislators alike. While legislation addressing the issue of NPEs has been slow in development, the U.S. Supreme Court has been very active in this regard. With their holdings in Octane Fitness, LLC v. Icon Health & Fitness, Inc. (Octane Fitness) and Highmark Inc. v. Allcare Health Management System, Inc. (Highmark), the Court lowered the standard for awarding attorney's fees to the winner of a lawsuit and made clear the standard of review to be used by appellate courts in attorney's fees appeals.

Originally published in Orange County Business Journal - July 2015.