The federal patent laws provide for an award of attorneys’ fees to the prevailing party in exceptional patent infringement cases. 35 U.S.C. §285. An exceptional case is determined based on the totality of the circumstances. A case can be exceptional due to a substantive legal position taken by a party or a party’s unreasonable litigation tactics. Courts can and will award attorneys’ fees to a prevailing defendant if the plaintiff was not justified in filing a patent infringement suit in the first place by failing to conduct a proper investigation of infringement before filing suit.
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