Washington Law Review


A Shifting Landscape for Shifting Fees: Attorney-Fee Awards in Patent Suits After Octane and Highmark

March 30, 2015 | 90 Wash. L. Rev. 505

Abstract: Section 285 of the Patent Act authorizes courts to award attorney fees to the prevailing party in patent litigation in "exceptional cases." Until recently, interpretation of § 285 had been governed by a highly restrictive formulation set forth by the United States Court of Appeals for the Federal Circuit. In April 2014, the United States Supreme Court released a pair of decisions—Octane Fitness v. ICON Health & Fitness, and Highmark Inc. v. Allcare Health Management System, Inc.—that rejected the Federal Circuit’s interpretation of § 285 and reinvigorated the potential for fee shifting in patent suits. This Note argues that the Supreme Court’s decisions in Octane and Highmark broaden the potential for parties in patent litigation—particularly defendants—to seek and receive awards of attorney fees. This Note presents a survey and analysis of the district court opinions deciding attorney-fee motions under § 285 announced in the eight months following Octane and Highmark. The results of that survey indicate that defendants are now significantly more likely to receive attorney-fee awards than they were previously. This Note ultimately argues that defendants in patent suits should consider these new fee dynamics as a key element of their litigation strategy from the outset of patent defense cases. Doing so may enable them to take advantage of the newly expanded opportunity for fee shifting. To that end, this Note suggests that defendants should actively strive to inform district court judges about their broad authority to award fees. Additionally, this Note recommends that litigants avoid analogizing to prior successful cases when arguing for fees. Instead, this Note proposes that parties should follow the example set by the Supreme Court and focus on the plain meaning of the statute using common sense arguments.

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