Imagine finally winning a hard-fought patent infringement lawsuit in the United States, only to discover that forcing the losing party to pay your legal fees is far from guaranteed. Unlike some jurisdictions where "winner takes all," American courts impose strict requirements for attorney fee shifting in patent cases.
The Three Critical Hurdles for Fee Recovery
1. You Must Achieve an "Undisputed" Victory
Simply winning the case isn't enough. Courts require clear and unambiguous judgments that fully support your core claims. Partial victories or ambiguous rulings typically disqualify plaintiffs from recovering legal expenses.
2. Proving "Bad Faith" Is Essential
The losing party's mere defeat doesn't justify fee shifting. Plaintiffs must present concrete evidence demonstrating that the opponent engaged in litigation misconduct—whether through knowingly asserting invalid patents, pursuing baseless infringement claims, or using lawsuits as competitive weapons rather than legitimate rights enforcement.
Substantiating bad faith requires extensive documentation, including internal communications, witness testimony, and other evidence revealing improper motives behind the litigation.
3. Courts Dictate What's "Reasonable"
Even after proving misconduct, courts meticulously scrutinize fee requests. Judges examine attorney work logs, task necessity, hourly rates, and compare them against local standards and industry benchmarks. This often results in partial recoveries, as courts frequently reduce requested amounts.
The Double-Edged Sword of Fee Shifting
America's attorney fee system serves as both shield and sword in patent disputes. While it protects defendants against frivolous lawsuits, it also punishes plaintiffs who engage in abusive litigation tactics. Successful parties may recover partial costs, but those filing meritless claims risk owing substantial fees if defeated.
This system reflects the U.S. judicial approach to balancing litigation rights—deterring abuse while providing economic relief against malicious claims. Patent litigation thus becomes not just a legal battle, but a strategic calculation of motives, risks, and potential financial consequences.