As the U.S. Supreme Court begins its term this month, its watershed case on attorney fees in patent cases, Octane Fitness, turns two and a half. Many believed this decision would increase the number of fee motions and awards by loosening the standard of what makes an “exceptional” patent case. Early studies confirmed that the number of fee motions and awards had increased— but has this trend continued?
35 U.S.C. § 285 provides that courts “in exceptional [patent] cases may award reasonable attorney fees to the prevailing party.”1 On April 29, 2014, the Supreme Court decided Octane Fitness, holding that an “exceptional case” is one that “stands out from others with respect to 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.” The Court also found “no precise rule or formula for making these determinations,” but did suggest a non-exclusive list of factors including “frivolousness, motivation, objective unreasonableness (both in factual and legal components of the case) and the need in particular circumstances to advance consideration of compensation and deterrence.” District courts were empowered to evaluate exceptionality with a “case-by-case exercise of their discretion, considering the totality of the circumstances.”