Exceptional Case

News & Analysis as of

Finding of Exceptionality Leaves Unsuccessful Infringement Plaintiff Liable for Over $50 Million in Attorney Fees and Costs

Needless to say, a finding of exceptionality under 35 U.S.C. § 285 can have crippling consequences. Just ask Rembrandt Technologies, LP, which recently was slapped with an order to pay the prevailing defendants in a...more

Judge Cote Holds Attorneys Liable for Trying to Keep a “Baseless” Case in E.D. Tex. that Sought Nuisance Payments from Numerous...

On December 8, 2016, District Judge Denise Cote (S.D.N.Y.) granted defendants Gust, Inc.’s (hereinafter, “Gust”) motion for attorneys’ fees and costs under 35 U.S.C. § 285 and 28 U.S.C. § 1927 against plaintiff AlphaCap...more

Ninth Circuit Expands the Octane Fitness Attorneys’ Fee Standard to the Lanham Act

Following several other circuits as well as patent law precedent, in SunEarth, Inc. v. Sun Earth Solar Power Co., the U.S. Court of Appeals for the Ninth Circuit recently made it easier for Lanham Act litigants to recover...more

Ninth Circuit Applies Octane Fitness’ Loosened Fee-Shifting Standard to Trademark Cases

Ninth Circuit joins growing trend in circuit courts, which has practical implications for trademark litigants on both sides. Two years have passed since the US Supreme Court added some teeth to the Patent Act’s...more

Ninth Circuit Retires Fee-Award Standard, Imports Octane Fitness to Trademark Cases

This week, the U.S. Court of Appeals for the Ninth Circuit joined a majority of appellate courts that have rejected rigid tests for attorneys’-fees awards in favor of flexible discretion at the district court level. The...more

Federal Circuit Review | October 2016

Withdrawal of Claims During Prosecution Can Trigger Prosecution History Estoppel In UCB, Inc. v. Yeda Research and Development Co., Ltd., Appeal No. 2015-1957, the Federal Circuit held that prosecution estoppel can apply even...more

The 9th Circuit Injects Some “Octane” into the Lanham Act Attorneys’ Fee Provision

In the immortal words of the most recent Nobel Laureate in literature, “the times they are a changin.’” Section 35(a) of the Lanham Act provides that “[t]he court in exceptional cases may award reasonable attorney fees to...more

Litigation Alert: Ninth Circuit Adopts Broader Octane Fitness Standard for Attorneys’ Fees Awards under the Lanham Act

On October 24, 2016, the U.S. Court of Appeals for the Ninth Circuit after an en banc rehearing in Sunearth, Inc. v. Sun Earth Solar Power Co., LTD., adopted the Octane Fitness standard for determining whether a case is...more

Octane Fitness and Highmark Apply to Ninth Circuit Attorney Fee Awards under the Lanham Act

On October 24, 2016, the Ninth Circuit Court of Appeals, sitting en banc, held that district courts analyzing a request for attorney fees under the Lanham Act should consider the totality of the circumstances, as set forth in...more

Eleventh Circuit’s Liberal Reading of Bonner Mall a Game Changer for Class Actions?

An Eleventh Circuit panel recently vacated two district court orders after sending the parties to mediation, and after the parties’ conditioned settlement on vacatur of the orders. In Hartford Casualty Insurance Company v....more

Can Parties Use Settlement Agreements to Vacate a Prior Judgment?

In Hartford Accident and Indemnity v. Crum & Forster Specialty Insurance et al., the Eleventh Circuit recently reversed a District Court’s decision refusing to vacate its prior judgments even though vacatur was a condition of...more

Extending the Reach of Octane Fitness Under the Lanham Act **WEB ONLY**

The US Court of Appeals for the Fifth Circuit adopted and applied the Supreme Court of the United States’ rationale for an award of attorneys’ fees in patent cases to a trademark case. In doing so, the Fifth Circuit aligned...more

Copyright and Trademark Case Review: Sibling Rivalry, Grilled Meat and Attorneys' Fees

Copyright Opinions - Sixth Circuit Upholds Siblings' Termination of Brother's Copyright Assignment: Brumley v. Albert E. Brumley & Sons, Inc., No. 15-5429 (6th Cir. May 16, 2016) - Sutton, J. In a declaratory...more

5th Circuit Adds Fuel to the Octane Fitness Fire in Lanham Act Cases

The prospect of recovering attorneys’ fees after notching a victory under the Lanham Act just got a bit rosier–at least if you find yourself prevailing in the 5th Circuit. The Lanham Act allows the recovery of attorneys’...more

Trademark Litigation Keeps Getting Cheaper (If You Win)

Slowly but surely, the extension of the Supreme Court’s 2014 Octane Fitness v. LLC v. Icon Health and Fitness, Inc. decision to trademark claims is gaining traction among federal appellate courts. The Octane Fitness decision...more

In Onboard Wi-Fi Case, Covenant Not To Sue Has Wide Range

Judge Jeffrey Alker Meyer of the District of Connecticut recently released an opinion that is significant to litigants on either side of a covenant not to sue. In a complex case with a host of claims and counterclaims...more

Court Orders Plaintiff to Pay Defendants’ $8 Million in Attorney’s Fees in Patent Row

Since the U.S. Supreme Court’s twin 2014 decisions in Highmark Inc. v. Allcare Health Management System, Inc. and Octane Fitness, LLC v. ICON Health & Fitness, Inc. attorney’s fees awards are becoming more common in patent...more

The Threshold of Exceptionality: There Is a Line, and It Can Be Crossed

Non-practicing entity (“NPE”) plaintiffs beware and NPE defendants be delighted: sanctions for objectively unreasonable claims and conduct are alive and well. Defendants in NPE litigations, particularly in the Eastern...more

Federal Circuit Limits Attorneys’ Fees in Exceptional Cases

Two weeks ago, the Federal Circuit Court of Appeals limited the factors a district court may consider in determining the amount of attorneys’ fees to award in an “exceptional” patent infringement case. Lumen View Tech., LLC...more

IP Newsflash - February 2016

FEDERAL CIRCUIT CASES - Federal Circuit Strikes Down Award of Attorneys’ Fees - In a decision that rejects a recent trend of district courts’ willingness to award attorneys’ fees since the Supreme Court’s 2014...more

Federal Circuit Reverses Punitive Exceptional Case Fee Award as Improperly Enhanced

On January 22, 2016, the Federal Circuit issued its opinion in Lumen View Technology LLC v. FindTheBest.com (Dkt. No. 15-1275), in which it vacated and remanded the lower court’s award of enhanced attorney fees under 35...more

Does Louis Vuitton’s Loss to a Parody Defense Justify an Award of Attorney Fees?

Earlier this month the Southern District of New York granted the defendant’s Motion for Summary in Louis Vuitton Malletier, S.A. v. My Other Bag , Inc. The fashion giant had brought suit against a California company over its...more

Judge Gilstrap awards Section 285 fees where Plaintiff’s Section 101 positions cross the “threshold of exceptionality.”

On December 17, 2015, Judge Rodney Gilstrap of the Eastern District of Texas (EDTX) ruled that, in light of Alice Corporation Pty. Ltd. v. CLS Bank International, 134 S. Ct. 2347 (2014) (“Alice”), a plaintiff’s position on...more

eDekka LLC v. 3balls.com, Inc. (E.D. Tex. 2015)

As 2015 drew to a close, the toll of the Alice Corp. v. CLS Bank Int'l decision on software and business method patents became apparent. Post Alice, approximately 70% of all patents challenged under 35 U.S.C. § 101 have been...more

eDekka Gets Decked by Finding of Exceptional Case in the Eastern District of Texas

Plaintiff eDekka LLC ("eDekka") sued a large number of defendants in Eastern District of Texas alleging infringement of U.S. Patent No. 6,266,674 ("the '674 Patent") titled "Random Access Information Retrieval Utilizing User...more

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