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Expert Analysis

An 'Exceptional Case' One Year After Octane: Part 1

Law360, New York (June 30, 2015, 10:55 AM EDT) -- One year has passed since the U.S. Supreme Court issued its highly anticipated Octane and Highmark decisions that rescued the "exceptional case" determination of 35 U.S.C. § 285 from the Federal Circuit's rigid two-part test and reinstated a "totality of the circumstances" approach to determine whether fee-shifting is appropriate in a patent case. Now that we have reached the anniversary of those decisions, it is worth looking back to see how they have been applied in the Federal Circuit and various district courts and what lessons prospective movants can learn from recent analyses....

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