Attorney Fees, the PTAB and You: Recent Guidance Regarding Section 285 Fees Tied to PTAB Actions

February 18, 2021

Westlaw Today

By Anthony D. Del Monaco; Forrest A. Jones; Joseph M. Myles

Under exceptional circumstances, Section 285 of the Patent Act, 35 U.S.C.A. § 285, allows district court litigants to recover attorney fees from patent litigations. In district court litigation, this tool has been available for a long time, and there is significant guidance about when it is and is not appropriate.

However, with the America Invents Act (AIA) expansion of available post-grant procedures before the Patent Trial and Appeal Board, and the 2014 Octane Fitness decision making awards of attorney fees more available, litigants are increasingly turning to Section 285 even where the exceptional circumstances arise in other procedures.

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