On May 14, 2019, Chris Loh was quoted in Law360 on what we've learned in the five years since the U.S. Supreme Court's Octane Fitness ruling made it easier for courts to award attorney fees in patent cases deemed "exceptional."
According to the article, the high court stripped away a Federal Circuit test that had set a very high bar for what constitutes an exceptional patent case where the losing party must pay its opponent's attorney fees, replacing it with a looser standard that fees are warranted when a case "stands out from others."
One scenario that is likely to result in fee awards is where a plaintiff exhibits a penchant for filing numerous lawsuits and reaching for low-value settlements without regard to the merits of the case.
"Sometimes litigation misconduct isn't just cabined to the case that's before the district judge, but also pattern of misconduct across various cases," including reaching such "nuisance" settlements, Loh said.
There have also been times when losing defendants have been hit with fees as well.
"If you're the defendant in a patent case and you say my product clearly doesn't infringe, and you get a determination back from the fact-finder that not only did you infringe, but you did so willfully or knowingly, that's certainly a factor that a judge would consider," Loh said.
There are still some areas of the law that need to be fleshed out. Loh said an issue the courts may need to address is whether litigation misconduct can give rise to an exceptional case finding by itself. Prevailing parties tend to argue both that the losing party's position engaged in misconduct and that their overall case was weak.
While courts have suggested that misconduct alone could be sufficient, "the precise circumstances under which that occurs is not entirely clear and is court- and judge-dependent," he said.