Law360
May 1, 2015
"One Year On, Octane Causing More Hard-Fought Patent Cases"

James Morando commented on the impact of the Octane Fitness decision one year later.  In his commentary he said that the changed fee-shifting landscape appears to be making nonpracticing entities more circumspect about the type of suits they bring and has influenced the strategic choices they make in litigation.

He pointed to two unrelated suits he has worked on in the past year where his clients felt the case was baseless and made clear to the plaintiffs that they were willing to go the distance to prevail and then seek fees. In both cases, the nonpracticing entities dismissed their case with prejudice, without the payment of any money other than an agreement not to seek fees.

"I'm not at all sure that these results would have been obtainable in the past," Morando said. "The greater threat of potential consequences in the way of an adverse fee award due to these Supreme Court decisions has, at least in my view, had a salutary effect on patent litigation and the burdens that they can impose on the court system."

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