SCOTUS Debates Formula For Awarding Attorney’s Fees In IP Cases

Though several Supreme Court judges agreed that making the losing side of an IP case pay attorney’s fees may be an effective way to curb abuses by some litigants, deciding how to phrase a formula lower courts could apply became “a search for adjectives,” Justice Anthony M. Kennedy said.  “Meritless,” “objectively baseless,” “without substantial merit,” and “unreasonably weak” were among the phrases bandied about during the Feb. 26 hearing. The lawyer for Icon Health & Fitness, the losing side in this case, Octane Fitness v. Icon Health & Fitness, argued abusive patent litigation is already curbed by the high cost of lawsuits and the risk of having  patents found invalid.