On July 16, 2015 Scott Slavick's article, "Fee-shifting or fundamental fairness? You decide." was published on InsideCounsel.com.
IP Case in the Vanguard on Fee-shifting, Says Slavick
Are IP cases pushing American courts to the international way of shifting fees? So asks Brinks' Scott Slavick in his latest piece on InsideCounsel.com, "Fee-Shifting? Or Fundamental Fairness? You Decide."
The American Rule—a default rule under which parties in litigation presume to bear their own costs—came into question in Shammas v. Focarino at the 4th Circuit in April, with the a divided panel upholding a lower court's ruling requiring the plaintiff to cover legal costs incurred by the USPTO.
Slavick discusses the implications of the decision, suggesting it could lower the number of appeals of USPTO rulings in district courts, because it empowers the USPTO to undertake massive discovery in a civil action. Slavick notes that applicants should present a better case when prosecuting an application. He also suggests the ruling might evidence some broader support for moving away from the American Rule over time.
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