Parties Seeking PTAB Attorney Fees Face High Bar In Courts

Law360 (November 4, 2019, 2:04 PM EST) -- Since the U.S. Supreme Court lowered the standard for prevailing parties to recover attorney fees in patent cases in the 2014 Octane Fitness LLC v. ICON Health & Fitness Inc. decision,[1] district courts have been weighing the proper interaction between Title 35 U.S. Code Section 285 and Patent Trial and Appeal Board proceedings. Under Section 285, prevailing patent litigants may recover attorney fees in “exceptional cases.”

The Octane Fitness decision clarified that district court judges maintain broad discretion for determining what makes a case “exceptional.” It did not divulge whether that discretion permits a judge to review the losing party’s conduct...

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