In two recent decisions, the United States Supreme Court loosened the standards applicable to successful litigants’ efforts to obtain enhanced damages and attorney’s fees awards from the losing party, and gave trial judges more discretion to give bigger awards to prevailing parties. In Halo Electronics, Inc. v. Pulse Electronics, Inc., decided on June 13, 2016, the Court relaxed court-made guidelines on when a successful patent-infringement plaintiff can obtain treble damages (that is, awards of up to three times the amount of actual damages proven by the plaintiff) in order to punish “egregious infringement behavior,” and gave trial judges more discretionary authority to impose treble damages. This decision is sure to embolden patent-infringement plaintiffs, and could lead to more patent-infringement litigation.
In Kirtsaeng v. John Wiley & Sons, Inc., decided on June 16, 2016, the Court clarified the circumstances in which a prevailing litigant (either the plaintiff or the defendant) in a copyright-infringement action can obtain an attorney’s fees award from the losing party. Prior to this decision, a losing party would usually only have to demonstrate that its position was “objectively reasonable” to avoid paying the other side’s attorney’s fees. In Kirtsaeng, however, the Court held that trial judges will now have more discretion to shift attorney’s fees to the losing party based on a “range of considerations,” including litigation misconduct or repeated or overaggressive assertions of infringement in other cases. The Court acknowledged that this decision will make the stakes even higher for both sides in copyright-infringement lawsuits.
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