Attorney’s Fees After Octane: More Chances for Defendants to Even the Playing Field

Law Journal Newsletters

01 Apr 2020

Rudy Kim authored an article for Law Journal Newsletters that covers the effects of U.S. Supreme Court’s decision in Octane Fitness, LLC v. ICON Health & Fitness, which gives district courts additional discretion to award attorney’s fees to the prevailing party in patent cases.

“Before Octane, prevailing parties needed to prove exceptionality with ‘clear and convincing evidence’ that there was ‘material inappropriate conduct’ or that the litigation was brought in ‘subjective bad faith’ and ‘objectively baseless.’ The Supreme Court held that bar was too high,” Rudy wrote. “District courts may now determine exceptionality in a case-by-case exercise of their discretion, considering the totality of the circumstances and a ‘nonexclusive’ list of factors, including frivolousness, motivation, and unreasonableness.”

Read the full article.



Unsolicited e-mails and information sent to Morrison & Foerster will not be considered confidential, may be disclosed to others pursuant to our Privacy Policy, may not receive a response, and do not create an attorney-client relationship with Morrison & Foerster. If you are not already a client of Morrison & Foerster, do not include any confidential information in this message. Also, please note that our attorneys do not seek to practice law in any jurisdiction in which they are not properly authorized to do so.