Article

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.”

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