Silicon Valley-based Intellectual Property partner Deborah Fishman recently spoke with The Recorder for its in-depth feature “New Rules Mean It’s Payback Time in Patent Cases,” an overview of fee-shifting in patent cases since the US Supreme Court rewrote the rules two years ago. The rewrite has made it easier for companies to easily recover millions of dollars in any patent case that “stands out from others.”
The Recorder compiled data suggesting that judges have been enthusiastically using the rules, though not in the way patent reform advocates had imagined, by making litigation more expensive for nonpracticing entities, often labeled “patent trolls."
For example, the US Magistrate Judge Elizabeth Laporte of San Francisco recently ordered the Alzheimer’s Institute of America to pay $7.9 million to Eli Lilly and Co. and Elan Pharmaceuticals Inc. relating to a patent infringement case involving early onset Alzheimer’s disease assays and animal models that has been pending since 2010. Fishman represented Elan, now part of Perrigos Cos., and helped her client to obtain a large part of the award. Kaye Scholer has been litigating the case alongside Finnegan, Henderson, Farabow, Garrett & Dunner; Dickstein Shapiro; and other law firms.
Fishman believes that the Supreme Court's Highmark decision has actually had more impact on fee litigation strategy than Octane Fitness.
“After a long case, clients can be wary of taking the additional expense of pursuing fees if they aren't confident they'll stick on appeal,” she said. “Under Highmark, if you think the judge has a real basis for ruling for you, it's much less likely to be overturned on appeal."
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