Based on recent Supreme Court decisions in Octane Fitness LLC v. Icon Health & Fitness Inc. and Highmark Inc. v. Allcare Health Management Systems Inc. may not have large tech companies popping champagne, but they might be toasting with a bit of wine.
These two cases stand to have a significant effect on the near-term future of patent litigation. They both focus on one particular aspect of patent litigation, what has come to be known as “fee shifting.” In England, for example, there is a “loser pays” model, where the loser of lawsuit pays the attorney’s fees for both parties. In the United States, each party is traditionally responsible for its own attorneys’ fees, except in special circumstances. These two cases have helped to clarify those circumstances.