In Octane Fitness LLC v. ICON Health & Fitness, 134 S. Ct. 1749 (2014), the U.S. Supreme Court evaluated the language in 35 U.S.C. Section 285, a statute that allows for the award of attorney fees to prevailing parties in “exceptional” patent infringement cases, and rejected a restrictive interpretation of the statute by the U.S. Court of Appeals for the Federal Circuit. Instead, the court held that an “exceptional” case is “simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case).” Since Octane Fitness was issued, U.S. District Judge Richard G. Andrews of the District of Delaware has twice ruled on a prevailing party’s request for attorney fees under Section 285.
In EON Corp. IP Holdings LLC v. FLO TV, (D. Del. May 27, 2014), the plaintiff filed a complaint against the defendants for indirect and joint patent infringement. Andrews found that eight means-plus-function terms in the patent were indefinite and granted the defendants’ motion for summary judgment. FLO TV Inc. then moved for attorney fees under Section 285. Andrews recognized that the U.S. Supreme Court “laid out a more flexible framework” under Section 285 in Octane Fitness by defining “exceptional” as uncommon, rare or not ordinary. Andrews noted that Octane Fitness identified two factors that could render a case exceptional: “the substantive strength of the party’s litigating position and the unreasonable manner in which the case was litigated.”
