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As Debate Rages Over Meritless Lawsuits, High Court May Weigh In On Fee Shifting Rules

Publication Date: 
August 30, 2013
Daily Journal
Kevin Lee

Professor Mark Lemley spoke with Kevin Lee of the Daily Journal about the difficulty of discouraging meritless patent infringement lawsuits.

The ongoing discussion among the Obama administration, Congress, judges and lawyers over how to discourage meritless patent infringement lawsuits has attracted attention from the nation's high court.

The U.S. Supreme Court is currently considering whether to review two cases from the U.S. Court of Appeals for the Federal Circuit in which litigants won their respective infringement lawsuits but failed to garner attorney fees. The petitioners separately argue that the public interest in limiting expensive patent lawsuits requires scrutiny from the high court.


"In the course of the last decade or so, the Federal Circuit has made it extremely difficult for patent defendants to get attorney fees," Stanford University law professor Mark Lemley said. "You can prove a patentee lied to the patent office or participated in litigation misconduct ... but overall it's very difficult to collect fees."