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Patent Fee Shifting: Kilopass Technology Inc. v. Sidense Corp.

Posted by on Jan 9, 2014 in Fee Shifting, Litigation, Patent

In a typical litigation, each party in a legal dispute is responsible for paying their own legal fees.  However, there are some instances where a losing party must pay for the legal fees of the prevailing party.  In patent law, this occurs in so called “frivolous” litigation. Until recently, judges would approve fee-shifting in patent cases if one party acted in bad faith.  This is a difficult standard to prove as the prevailing party must prove the intent of the losing party.  Congress has been debating whether to change this standard.  In December of 2013, the House of Representatives passed a bill which would require judges to consider a “reasonably justified” standard.  Thus a losing party would have to pay the legal fees of a prevailing party unless the legal position of the losers was reasonably justified.  This bill has not yet been taken up by the Senate and the Senate has not drafted its own bill on the subject. However current patent litigants may not need to wait for Congressional action.  On December 26, 2013, the Court of Appeals for the Federal Circuit provided an opinion for Kilopass Technology Inc. v. Sidense Corp.  The main issue in this case was whether Sidense’s request for fee shifting was properly...

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