Alice and Octane Fitness: Patent Reform in the Federal Judiciary

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The past year saw significant decisions from the U.S. Supreme Court, the Court of Appeals for the Federal Circuit, and various district courts that have impacted the rate of and risk associated with patent lawsuits brought by non-practicing entities.

For example, the Supreme Court’s decision in Alice Corporation Pty. Ltd. v. CLS Bank International refined the permissible scope of patent eligible subject matter. As a result, defendants increasingly attack validity under 35 U.S.C. 101 earlier in patent litigations and with increasing success. Moreover, in Octane Fitness, LLC v. ICON Health & Fitness Inc., the Supreme Court relaxed the standard for awarding attorneys’ fees under 35 U.S.C. 285 for “exceptional” cases and lowered the evidentiary burden to establish an exceptional case. Octane Fitness thus increases the risk of fee shifting in questionable lawsuits.

Join Ahmed Davis and Steve Marshall, principals at Fish & Richardson, as they discuss these changes and others impacting the frequency and scope of patent litigation. You can also expect this webinar to address:

• The dramatic increase in Section 101 challenges
• The change in grant rate for motions based on Section 101 following Alice
• The Alice effect in the Patent & Trademark Office
• Octane Fitness‘s totality of circumstances inquiry
• Potential intersection of Alice and Octane Fitness
• Pending legislation that may impact the issues above