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Patricia O'Connell
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Brian Pandya Quoted by Forbes and Law360 on Supreme Court Patent Cases

Forbes, Law360
April 30, 2014

Brian H. Pandya, a partner in Wiley Rein’s Intellectual Property and Litigation practices, was quoted by Forbes and Law360 about two rulings the Supreme Court of the United States issued yesterday regarding attorneys’ fees in patent lawsuits.  The cases are Highmark Inc. v. Allcare Health Management Systems, Inc. and Octane Fitness LLC v. Icon Health & Fitness, Inc.

In Octane Fitness, the Court ruled that fees may be awarded in any case that, in the eyes of the district court judge, “stands out from others with respect to the substantive strength of a party’s litigation position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.”  In Highmark, the Court overturned the Federal Circuit’s de novo review standard and held that a district court’s decision to award prevailing party fees would be reviewed for an abuse of discretion.  Both decisions were unanimous.

Mr. Pandya led a team of Wiley Rein attorneys who filed an amicus brief in the Highmark case on behalf of the Blue Cross Blue Shield Association at both the certiorari and merits stages.  The briefs were instrumental in granting certiorari and advocated for the standard of appellate review ultimately adopted by the Court.

“These cases are game-changers,” Mr. Pandya told Forbes.  “Litigants will still have their chance to have their day in court, but once you’ve had your day, you need to know when it’s time to fold your cards.”

It will be up to judges to determine which cases are exceptional, but as Mr. Pandya told Forbes, “[j]udges are good, they know when a case is an exception from the norm.”

Mr. Pandya also told Law360 the decisions could impact whether Congress will pass patent legislation this term.  “This decision could take a lot of the wind out of the sails for the case for patent reform,” he said. “One of the drivers of reform was that it was too hard to get attorneys’ fees, and these cases made it much easier.”