The U.S. Supreme Court issued two highly-anticipated opinions yesterday concerning the issues of attorney's fees award under 35 U.S.C. 285 (Octane Fitness LLC v. Icon Health & Fitness, Inc.; Highmark Inc. v. Allcare Health Management System, Inc.).  The Octane Fitness case completely gutted the old interpretation of Section 285 announced by the Federal Circuit Court in Brooks Furniture Mfg., Inc. v. Dutailier Int'l, Inc., 393 F.3d 1387 (Fed. Cir. 2005).  Now a case is "exceptional" under Section 285 if the case "stands out from others with respect to the substantive strength of a party's litigation position ... or the unreasonable manner in which the case was litigated"; and a party seeking an attorney's fees award is no longer required to prove its case by clear and convincing evidence.

In light of the new rulings, attorney's fees awards no longer seem so impossible, and patent trolls will need to think twice before filing lawsuits because there will be exposure to attorney's fees awards if they lose the case.  

Nonetheless, the fee awards under Section 285 remain discretionary.  It will be interesting to see how district courts react to the Supreme Court's new rulings.  It may take some time to fully assess the impact these rules has on curbing frivolous patent litigation.