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The Intellectual Property StrategistFeaturesFee DisputesIntellectual PropertyLitigationPatent Litigation

Attorney's Fees After Octane: More Chances for Defendants to Even the Playing Field

By Rudy Y. Kim
April 01, 2020

In recent years, defendants in patent litigation have been given powerful defensive tools to challenge the validity of patents asserted against them and the jurisdiction in which they are sued. They've also been given more opportunities to even the playing field.

Following the U.S. Supreme Court's game changing opinion in Octane Fitness, LLC v. ICON Health & Fitness, 134 S. Ct. 1749 (2014), district courts have had additional discretion to award attorney's fees to the prevailing party in patent cases. Understanding in what circumstances attorneys' fees have been awarded is crucial for defendants facing meritless suits.

Under the fee-shifting provision in the Patent Act — 35 U.S.C. §285 — district courts may award fees in "exceptional" cases. The Supreme Court has defined an exceptional case as "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."

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