What Patent Attorney Fee Awards Really Look Like

Abstract

This essay gives an empirical account of attorney fee awards over the last decade of patent litigation. Given the current attention in legislative proposals and on the Supreme Court’s docket to more liberal fee shifting as a check on abusive patent litigation, a fuller descriptive understanding of the current regime is of utmost importance to forming sound patent litigation policy. Following a brief overview of judicial experience in patent cases and trends in patent case filing, this study presents analysis of over 200 attorney fee award orders during 2003-2013.

The study confirms the commonsense view that plaintiffs have tended to receive attorney fee awards more often than defendants have, but that such awards have been larger when defendants did receive them. Notably, observed attorney fee awards have been an order of magnitude lower than estimated. Attorney fee awards also vary, in magnitude and distribution, according to the technology area of the patents involved in the dispute. Finally, patent attorney fee awards often follow systematic calculation and discounting with explanatory discussion, reflecting a pattern of fact-intensive evaluation by district judges of such awards.

Keywords: patents, litigation, fee shifting, empirical

JEL Classification: O34, K41