Although patent litigation has been on the rise over the past decade, the number of successful grants of attorneys fees under 35 U.S.C. § 285 has not tracked this rise, and remains low. Lower still are the number of successful grants based on litigation misconduct or frivolous, bad faith litigation, as the cases in which the grounds for § 285 are default judgments or willful infringement comprise the great majority where the request was successful.
Based on Lex Machina’s data, between January 1, 2003 and December 31, 2005, 884 cases reached contested, patent-specific judgment[1], whereas the same three-year period between 2010 and 2012 saw 997 such judgments. Despite the background rise in litigation, awards of attorneys’ fees under § 285 actually declined by 29% between the two periods. There were only six awards granted between January 1, 2010, and December 31, 2012 on contested, patent-specific judgments in the same period, where the judgment was predicated on litigation misconduct or frivolous, bad faith litigation and not on default, willful infringement, or inequitable conduct before the U.S. Patent and Trademark Office. These six awards represent a 57% decline from such judgments between 2003 and 2005.
[1] Contested, patent-specific judgments are those of (in)validity, (non)infringement, or (un)enforceability, not including consent, stipulated, or otherwise agreed judgments.