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Patricia O'Connell
Senior Communications Manager

Brian Pandya Comments on Supreme Court Review of Patent Case

October 2, 2013

Brian Pandya, a partner in Wiley Rein’s Intellectual Property Practice, was quoted in a Law360 article yesterday about the Supreme Court of the United States’ decision to accept a case that could have far reaching implications on patent infringement lawsuits, particularly those filed by so-called non-practicing entities or patent assertion entities.

The Court on October 1 agreed to consider in Highmark Inc. v. Allcare Health Management Systems Inc., whether district court decisions awarding sanctions against filers of patent lawsuits deemed exceptional under 35 U.S.C. ยง 285 are entitled to deference on appeal.  The case is based upon an appeal brought by health insurer Highmark, Inc., which argues the Federal Circuit’s current review system makes it too easy for fee awards to be overturned.

A team of Wiley Rein attorneys, led by Mr. Pandya, filed an amicus brief supporting Highmark on behalf of the Blue Cross and Blue Shield Association.  The brief argued that this is an issue of national importance that warrants the Supreme Court’s attention in light of the rising cost and number of patent lawsuits.  The proper application of Section 285—the law allowing the shifting of attorney’s fees to the prevailing party in exceptional cases—is necessary to rein in such litigation, the brief added.

Mr. Pandya told Law360 that because the Federal Circuit reviews sanctions de novo, it increases the likelihood that a penalty would be reversed, thus dissuading district court judges from levying sanctions

A decision in favor of deference for district court decisions could become an important tool against patent trolls, Mr. Pandya said.  “By potentially returning discretion to the district court, trial judges will be more likely to shift attorneys’ fees, and fee-shifting will act as a real deterrent to filing frivolous cases and to misconduct in cases,” he said.

By agreeing to hear the case, “the Supreme Court recognizes that a clarification of existing laws can provide many of the same outcomes that some of the patent reform bills are seeking,” Mr. Pandya added. “It shows that the Supreme Court is tuned into the debate before Congress.”

For more on Wiley Rein’s role in the case, click here.