Statutes permitting discretionary attorney fee-shifting for prevailing defendants vary in the circumstances under which fee-shifting is permitted. Two recent cases tackling the question of why and when a lawsuit warrants shifting attorneys’ fees from a prevailing defendant to the plaintiff who brought the claim reflect some of these differences. One case focused on “frivolousness” of the lawsuit, and the other imposed a “bad faith” requirement—despite the absence of such language from the relevant statute. The perceived motivation of the respective plaintiffs and purpose behind the statutes under which the claims were brought were influential.
On July 24, 2023, the United States Patent and Trademark Office (USPTO) announced updated procedures for the interim Director Review (DR) of Patent Trial and Appeal Board (PTAB) decisions. The updated procedures could help patent practitioners manage costs by providing a new mechanism for recourse following PTAB decisions.