Close X

Attorney Spotlight

How does Eli Richardson's past work with the federal government inform his client interactions? Find out more>

Search

Close X

Experience

Search our Experience

Experience Spotlight

In June 2016, AmSurg Corp. and Envision Healthcare Holdings, Inc. (Envision) announced they have signed a definitive merger agreement pursuant to which the companies will combine in an all-stock transaction. Upon completion of the merger, which is expected to be tax-free to the shareholders of both organizations, the combined company will be named Envision Healthcare Corporation and co-headquartered in Nashville, Tennessee and Greenwood Village, Colorado. The company's common stock is expected to trade on the New York Stock Exchange under the ticker symbol: EVHC. Bass, Berry & Sims served as lead counsel on the transaction, led by Jim Jenkins. Read more.

AmSurg logo


Close X

Thought Leadership

Enter your search terms in the relevant box(es) below to search for specific Thought Leadership.
To see a recent listing of Thought Leadership, click the blue Search button below.

Thought Leadership Spotlight

Inside the FCA blogInside the FCA blog features ongoing updates related to the False Claims Act (FCA), including insight on the latest legal decisions, regulatory developments and FCA settlements. The blog provides timely updates for corporate boards, directors, compliance managers, general counsel and other parties interested in the organizational impact and legal developments stemming from issues potentially giving rise to FCA liability.

Read More >

The "Exceptional" Patent Case Is Now Less "Exceptional"

Publications

April 30, 2014

Patent litigation is expensive, and that expense often unfairly tips the negotiating table against legitimate businesses defending unmeritorious infringement suits filed by patent trolls.  The Patent Act provides some relief, stating that "[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party."1  Historically, however, courts have been reluctant to deem cases "exceptional" and award fees, and the Federal Circuit often has modified fee awards on appeal.  Two decisions from the U.S. Supreme Court yesterday drastically could change the "exceptional case" analysis.

In 2005, the Federal Circuit held that a defendant demonstrated entitlement to attorneys' fees under the "exceptional case" standard only if it showed by clear and convincing evidence that the litigation was brought in subjective bad faith and was objectively baseless.2  Yesterday, in Octane Fitness, LLC v. Icon Health & Fitness, Inc., the U.S. Supreme Court unanimously struck down this standard because it is “unduly rigid, and it impermissibly encumbers the statutory grant of discretion to district courts.”3  In its place, the Supreme Court held "that an 'exceptional' case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated."4  Moreover, under the Supreme Court's decision, a prevailing party now must prove the "exceptional case" standard only by a preponderance of the evidence, as opposed to the much higher clear and convincing evidence standard.5

In a companion case also unanimously decided yesterday, Highmark, Inc. v. Allcare Health Management System, Inc., the Supreme Court raised the bar for overturning a fee award under the "exceptional case" standard on appeal.6  In that case, the Federal Circuit modified the district court's "exceptional case" fee award, applying a de novo standard of review without deference to the district court.7  Relying in large part on the new standard set forth in Octane Fitness, the Supreme Court in Highmark held that appellate courts must give deference to district courts, stating that “[b]ecause § 285 commits the determination whether a case is 'exceptional' to the discretion of the district court, that decision is to be reviewed on appeal for abuse of discretion."8  Additional background information about the Octane Fitness and Highmark cases can be found in our earlier Alert.

Taken together, yesterday's Octane Fitness and Highmark cases represent a substantial shift in the law relating to attorneys’ fee awards in patent litigation.  Fee awards against defendants often go hand-in-hand with a finding of willful infringement, and that is unlikely to change under the Supreme Court's new standard.  However, in view of yesterday's Supreme Court Decisions, defendants are much more likely to seek attorneys' fees against plaintiffs, particularly patent trolls, in unmeritorious patent infringement suits.  Of course, it remains to be seen how district courts will apply the new standard and whether it will, in fact, have any measurable impact on patent troll litigation.

As we have discussed in several recent Alerts,9 all three branches of the federal government and many state governments are currently pursuing initiatives to reform patent litigation in one way or another.  We will continue to monitor these efforts and provide updates as appropriate.

If you have any questions about the content of this alert, please contact one of the authors listed above or any member of our Intellectual Property and Technology Team.


1 35 U.S.C. § 285 (2014).

2 Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F.3d 1378, 1381-82 (2005).

4 Id. slip op. at 7-8.

5 Id. slip op. at 11.

6 Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., 572 U.S. ___ (2014).

7 Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., 687 F.3d 1300, 1309 (Fed. Cir. 2012).


Related Professionals

Related Services

Notice

Visiting, or interacting with, this website does not constitute an attorney-client relationship. Although we are always interested in hearing from visitors to our website, we cannot accept representation on a new matter from either existing clients or new clients until we know that we do not have a conflict of interest that would prevent us from doing so. Therefore, please do not send us any information about any new matter that may involve a potential legal representation until we have confirmed that a conflict of interest does not exist and we have expressly agreed in writing to the representation. Until there is such an agreement, we will not be deemed to have given you any advice, any information you send may not be deemed privileged and confidential, and we may be able to represent adverse parties.