Post-Octane Fitness Decisions Show an Uptick in Attorney Fee Awards to Prevailing Parties

The Patent Act’s fee shifting provision provides that a “court in exceptional cases may award reasonable attorney fees to the prevailing party.” 35 U.S.C. § 285. Earlier this year, we reported on the Supreme Court’s decision in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 188 L. Ed. 2d 816 (2014), which revised the standard on fee shifting in patent cases, and held:

[A]n “exceptional” case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated. District courts may determine whether a case is “exceptional” in the case-by-case exercise of their discretion, considering the totality of the circumstances. Id. at 1756.

* This article was published in Patent Counsel. To read the full article, click here.