The Federal Circuit just issued its en banc decision in Nantkwest v. Iancu, concluding that the proper statutory construction of Section 145 of the patent statute, which allows patent applicants to file actions in a federal district court to challenge the denial of patent applications by the Patent and Trademark Office (USPTO), does not require the challengers to pay the USPTO’s attorneys’ fees.… More
Tag Archives: Attorneys’ Fees
Trademark Year In Review And What Lies Ahead: The Lanham Act’s New Year’s Resolutions For 2017
2016 is now in the rear view mirror. At the beginning of a new year, we often take a moment to reflect on the past year, while setting goals for the present. It’s a time to say, “Last year had its ups and downs, but this year I’m going to . . .” There are so many choices; what will 2017 hold? Between this article’s two authors,… More
Ninth Circuit Extends Octane Fitness Attorneys’ Fee Analysis To Lanham Act Cases
In the 2014 case of Octane Fitness, LLC v. Icon Health & Fitness, Inc. (and a companion case), the Supreme Court articulated a standard for courts to use when deciding whether to award attorneys’ fees in patent cases. As we reported here, Section 285 of the Patent Act authorizes an award of attorneys’ fees to the prevailing party in “exceptional” cases.… More
Objective Reasonableness Can Be Central to Fee-Shifting Analysis in Copyright Cases
In Kirtsaeng v. John Wiley & Sons, Inc., the Supreme Court clarified the test for awarding attorney’s fees when applying the Copyright Act’s discretionary fee-shifting provision, 17 U.S.C. § 505. The Court held that the objective reasonableness of a losing party’s position should be given “substantial weight”—but not necessarily control—the outcome of a fee petition. The lower courts had varied considerably in their approach to the discretionary fee-shifting analysis. … More
Right of Publicity Claims by Athletes Nearly Shut Out in 2015
When we published our Sue-per Bowl post, 2015 looked like it would be a good year for right of publicity claims brought by athletes. On January 6, 2015, the Ninth Circuit in Davis v. Electronic Arts held that the First Amendment did not compel dismissal of right of publicity claims brought by former NFL stars who appeared in the “historic teams” option of the Madden NFL computer game.… More
Supreme Court Rulings Will Make Fee Awards More Likely In Trademark Cases As Well As Patent Cases
Yesterday, the United States Supreme Court decided Octane Fitness, LLC v. Icon Health & Fitness, Inc. and Highmark v. Allcare Health Management System, Inc., companion cases that will make it easier for prevailing parties to recover attorneys’ fees in patent infringement litigation. Together, the cases may have far-reaching consequences for litigation strategy and case management in cases involving a range of intellectual property disputes, not just patents.… More