Supreme Court Corner — Q2 2014: Octane Fitness v Icon Health & Fitness; Limelight Networks v Akamai Techs; and more

By Stan Panikowski, Brian Biggs, Jeremy T Elman and Andrew N Stein

Octane Fitness LLC v Icon Health & Fitness IncPatent: Decided: 29 April 2014
Holding: a patent case is ‘exceptional’ under 35 USC § 285 when it ‘stands out from others with respect to the substantive strength of a party’s litigating position or the unreasonable manner in which the case was litigated’.

This decision overturns the Brooks Furniture Mfg v Dutalier Int’l Inc standard, finding instead that awarding fees is a matter of discretion and should be evaluated case by case. The court noted ‘exceptional’ is not defined in § 285 and found exceptional means ‘uncommon’, ‘rare’ or ‘not ordinary’, rejecting the prior two-prong standard as ‘overly rigid’. The Court held a party could satisfy § 285’s ‘exceptional’ requirement by showing an infringement claim is ‘simply one that stands out from others with respect to the substantive strength of a party’s litigating position (both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated’.

This opinion is being widely read as lowering the standard for attorney fee awards. However, in the first opinion applying Octane – Bianco v Globus Medical, Inc, the Eastern District of Texas did not award fees because the defendant did not meet its burden of proof. Interestingly, Federal Circuit judge William C Bryson was sitting by designation and authored the opinion…

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