Patent litigation fee-shifting provisions before Congress and at issue in Supreme Court litigation currently do not portend any changes in Section 337 investigations. The Innovation Act, H.R. 3309, passed by the House of Representatives on December 5, 2013, includes a fee-shifting provision requiring courts to award fees and expenses to prevailing parties unless (1) the nonprevailing party’s position was “reasonably justified in law and fact” or (2) special circumstances apply. The Patent Abuse Reduction Act, S. 1013, pending before the Senate Judiciary Committee includes a similar fee shifting provision. Neither bill applies fee-shifting to Section 337 litigation. House Judiciary Committee Chairman Goodlatte, chief sponsor of the Innovation Act, has stated that the ITC is “not primarily the jurisdiction of the House Judiciary Committee,” but that he is “very open to collaborating with the Ways and Means Committee” on ITC reform. The U.S. Supreme Court in February heard oral arguments on two cases, Octane Fitness, LLC v. Icon Health & Fitness, Inc., No. 12-1184, andHighmark Inc. v. Allcare Health Mgmt. Sys., No. 12-1163, concerning attorney fee awards under 35 U.S.C. § 285. The decisions are unlikely to significantly impact Section 337 litigation. Although some litigants or Administrative Law Judges have addressed the § 285 standard by analogy in connection with a motion for sanctions under Commission Rule 210.4(d), see, e.g., Certain CD‑ROM Controllers, No. 337-TA-409, Recommended Determination (August 10, 1999), no ALJ has relied on § 285 in awarding sanctions in a Section 337 investigation.
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