Attorney Fees

A court may award attorney fees to the prevailing party.

The court in exceptional cases may award reasonable attorney fees to the prevailing party.

— 35 U.S. Code § 285.

This language was revised from the original statute emphasizing that fees should be awarded only in exceptional circumstances.

We have observed, in interpreting the damages provision of the Patent Act, that the addition of the phrase exceptional cases to § 285 was for purposes of clarification only.

— Octane Fitness v. ICON Health & Fitness, 134 S. Ct. 1749, 1753 (S. Ct. 2014).

The Supreme Court clarified the meaning of discretion with respect to § 285 in 2014.

Our analysis begins and ends with the text of § 285: The court in exceptional cases may award reasonable attorney fees to the prevailing party. This text is patently clear. It imposes one and only one constraint on district courts' discretion to award attorney's fees in patent litigation: The power is reserved for exceptional cases.

— Octane Fitness v. ICON Health & Fitness, 134 S. Ct. 1749, 1755-56 (S. Ct. 2014).

An exceptional case stands out with respect to the substantive strength of a party's litigating position or the manner in which the case was litigated.

We hold, then, 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) or the unreasonable manner in which the case was litigated.

— Octane Fitness v. ICON Health & Fitness, 134 S. Ct. 1749, 1756 (S. Ct. 2014).

The determination as to whether a case is exceptional should be performed on a case-by-case basis.

District courts may determine whether a case is "exceptional" in the case-by-case exercise of their discretion, considering the totality of the circumstances.

— Octane Fitness v. ICON Health & Fitness, 134 S. Ct. 1749, 1756 (S. Ct. 2014).