U.S. patent law dictates that fees be awarded to the defendant in patent suits "in exceptional cases." The U.S. Supreme Court will hear cases that may help define such exceptions more precisely, leading to a standardized procedure for handling fee awards in patent suits.
The two cases the Supreme Court will hear are Highmark v. Allcare Health Management Systems and Octane Fitness v. Icon Health and Fitness. The first case seeks to determine whether the U.S. Court of Appeals must give precedence to a judge's determination of a case as "objectively baseless". Highmark argues the federal court misused de novo review in the matter. The second case involves Octane Fitness arguing that the procedure used to determine whether it owes Icon Health and Fitness attorney's fees has no basis in precedent.
Organizations across sectors are already eagerly following these proceedings. The Blue Cross and Blue Shield Association, a Washington-based trade group, argued in court papers, "With the average patent case costing millions of dollars to litigate, the threat of paying the prevailing party's attorney's fees is a powerful deterrent to frivolous claims and litigation mischief."
It is the hope of those in favor of a stricter fee award system that the prospect of paying attorney's fees will cut down on frivolous infringement claims. According to the Government Accountability Office, 19 percent of all patent cases between 2007 and 2011 were such frivolous claims.