By Joseph S. Heino
On December 26, 2013, the Court of Appeals for the Federal Circuit (which has exclusive jurisdiction over appeals in patent infringement cases) issued a decision effectively making it easier for a wrongly accused patent defendant to recover its attorneys’ fees. In Kilopass Technology, Inc. v. Sidense Corp., that court effectively lowered the burden for proving that a patent infringement suit is objectively baseless. For the patent owner, the decision supports the notion that the patent owner should have an “objective and well-reasoned” basis for its claim of patent infringement. If it doesn’t, the patent owner is at risk for the dismissal of its action and for an award of attorneys’ fees against it. For an accused infringer, the Kilopass decision imposes a need to quickly and thoroughly explore the patent owner’s basis for bringing suit. If the suit is objectively baseless, the accused infringer may be able to recover its attorneys’ fees.