Posts Tagged: "Attorneys Fees"

Federal Circuit Refuses to Overturn District Court’s Award of Attorney Fees to Dow

The Court disagreed that the district court’s sole basis for finding exceptional circumstances was that NOVA filed an action in equity. The Court noted that the district court also relied on the substantive weakness of NOVA’s position, which can independently support an exceptional-case determination. It is the substantive strength of a party’s litigating position that can lead to an exceptional case determination not correctness or success of that position. For instance, NOVA’s allegations of fraud were supported exclusively by conflicting testimony, a fact going to the strength of the action.

Parallel Networks asks SCOTUS to overturn unconscionable arbitration award handed to former counsel

Jenner & Block represented Parallel Networks for 18 months and then lost one of the cases on summary judgment of non-infringement. Four weeks after losing summary judgement, Jenner & Block decided the cases were no longer economically viable, refused to handle the appeal of the adverse summary judgment and advised Parallel Networks that it was terminating its representation in both cases. Parallel Networks retained new legal counsel for the appeal and these new lawyers undid Jenner & Block’s loss when the Federal Circuit vacated the summary judgement order of non-infringement and remanded the case back to Delaware. Parallel Networks eventually settled both cases, including an eight-figure settlement in one of those cases. Incredibly, more than two and a half years after Jenner & Block determined that these cases weren’t economically viable and then decided to abandon its client, Jenner & Block sent a demand letter to Parallel Networks claiming it was entitled to payment of $10.2 million in hourly fees based on the successful outcomes of the cases achieved by a different law firm.

Federal Circuit Declines to Award Attorney Fees in Inventorship Dispute

The Federal Circuit heard the case on Univ. of Utah v. Max-Planck-Gesellschaft Zur Foerderung der Wissenschaften e.V. At issue is whether the district court abused its discretion in declining to award attorney fees to Max Planck. The case involved an inventorship dispute over the “Tuschl II patents,” for certain RNAi discoveries, and owned by Max Planck. March 2000, the Max Planck inventors published an article describing certain RNAi discoveries. A month later, Dr. Bass of the University of Utah published a review article discussing the Max Planck article and offering some hypotheses regarding RNAi. The Tuschl II patents were filed on subject matter that was influenced by testing Dr. Bass’ hypotheses. The University of Utah sued Max Planck, alleging that Dr. Bass is either a sole or joint inventor of the Tuschl II patents… The Court will not second-guess a district court’s finding that a case was not “exceptional” so long as the Court reasonably explained why the case does not stand out from other patent cases. A district court is not constrained to a specific or formulaic approach proposed in cases like Octane Fitness.

CAFC Affirms Attorney Fees Awarded Under ‘Holistic and Equitable’ Evaluation of Case

In conclusion, the Court held the district court did not abuse its discretion in determining that, under the totality of circumstances, this was an exceptional case, and affirmed the district court’s grant of § 285 fees… The Supreme Court’s totality of the circumstances analysis for fees under § 285 is a “holistic and equitable approach in which a district court may base its discretionary decision on other factors, including the litigant’s unreasonableness in litigating the case, subjective bad faith, frivolousness, motivation, and ‘the need in particular circumstances to advance considerations of compensation and deterrence.’”

Is it time for the Federal Circuit to award costs and fees in Rule 36 judgments?

Erich Spangenberg commented on our most recent Rule 36 article, “Does the Federal Circuit’s use of Rule 36 call into question integrity of the judicial process?” He raised a significant and potent question: Logically, when the Federal Circuit uses Rule 36 to affirm without a written opinion should fees and costs be awarded?… The Federal Circuit is using Rule 36 so often that it has to raise questions even in the mind of the most vocal supporter of the Court. It is entirely predictable that such secrecy would lead people to ask questions, including the dramatic – why is it not appropriate to award at least costs if the appeal is so easy and nothing could be gained from writing an opinion?

Federal Circuit Upholds Sanctions and Attorney’s Fees for Vexatious Litigation and Frivolous Appeal

The Court upheld the district court’s award of attorneys’ fees and costs, finding ample support in the record for Walker’s vexatious conduct, and no legitimate reason for Walker to continue litigating after the Agreement. Further, Walker’s arguments on appeal mischaracterized clear authority on the courts’ ability to award attorneys’ fees. The Court also sanctioned Walker and his attorneys for pursuing a frivolous appeal and awarded attorneys’ fees and costs.

CAFC vacates attorneys’ fees awarded to Justin Timberlake, Britney Spears in patent infringement case

The Federal Circuit recently issued a non-precedential decision in a patent infringement action involving American pop music stars Justin Timberlake and Britney Spears and their production companies. The Federal Circuit’s decision vacated an earlier award of attorneys’ fees to Timberlake, Spears and the other defendants based on a finding that the case was exceptional within the meaning of 35 U.S.C. 285. The per curiam decision from the panel made up of Judges Moore, Linn and O’Malley explained that certain of the factors relied upon by the district court to find this case to be exceptional were entitled to no weight under § 285. Thus, the attorneys’ fee order of the district court was vacated and the case remanded for further proceedings.

Supreme Court Emphasizes Objective Reasonableness for Fee Awards in Copyright Litigation

Justice Kagan stated as one primary factor that a District Court should put substantial weight on the reasonableness of the losing party’s position. The lower courts are in a good position to review and administer this factor, and it encourages parties with meritorious positions to advance them. Justice Kagan quite rightly stated that this was not the only factor, and that other previously articulated factors set forth in Fogerty also need to be evaluated. These include the “frivolousness [of the losing party’s position], [such party’s] motivation, objective unreasonableness, and the need in particular circumstances to advance considerations of compensation and deterrence.” Fogerty at 534, n.19.

Objective reasonableness important factor in awarding attorney’s fees in copyright litigation

In exercising this discretion the Supreme Court held that district courts should consider the objective reasonableness of the losing party’s position, but that the objective reasonableness was not the only factor, or even the predominant factor, for district courts to consider. Rather, the Supreme Court explained that district courts retain broad discretion to make an award even when the losing party advanced a reasonable claim or defense.

SCOTUS should adopt flexible, case-specific approach to attorneys’ fee awards in copyright cases

The IPO recently filed an amicus brief at the Supreme Court in Kirtsaeng v. John Wiley & Sons, Inc. supporting a flexible approach to awarding attorneys’ fees. Oral argument is currently scheduled for April 25, 2016. This case presents an important opportunity for the Supreme Court—consistent with its holding in Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994)—to resolve a circuit split regarding how to weigh equitable factors in awarding attorneys’ fees in copyright cases. Attorneys’ fees should be based on a review of all equitable factors and not a product of a formulaic approach that disproportionately weighs certain factors more than others.

A District Court May Enhance Lodestar Attorneys Fee Award Only For Relevant Reasons

The Federal Circuit held that the district court failed to provide a proper justification for enhancing the amount by a multiplier of two. The basis for this multiplier was the court’s expeditious resolution on the merits which resulted in an “extremely low” lodestar, and had the court adopted Lumen View’s proposed schedule, FTB would have incurred more attorney fees. The Court disagreed with this as a rationale for enhancing the lodestar amount. The Court held an award can be enhanced only when it fails to account for a relevant consideration. Here, factors such as the expedited schedule were unrelated to the compensation of FTB’s attorneys and therefore, irrelevant to the enhancement of the lodestar.

Only ‘Expenses’ Not ‘Attorney Fees’ Should Be Awarded Under Section 21(b) of the Lanham Act

Section 1071(b)(3) does not expressly or implicitly permit the award of “attorney fees” to the PTO. Specifically, Section 1071(b)(3) states simply that all the expenses of the proceeding shall be paid by the party bringing the case, whether the final decision is in favor of such party or not. By its express terms, the statute merely allows for the award of “expenses,” and not “attorney fees.”

SCOTUS takes case on awarding enhanced damages for patent infringement

The United States Supreme Court accepted certiorari in two patent cases, which will require the court to determine whether district court judges should have discretion to award victorious patentees with enhanced damages under 35 U.S.C. § 284. While predicting the outcome of a Supreme Court decision is always speculative, this case should be one of the easiest outcomes to predict ever. Unless the Supreme Court fundamentally alters its statutory interpretation from the Octane Fitness case, arbitrarily creating a distinction without a difference, the Supreme Court will grant district courts the same broad discretion on enhanced damages that they have been given with respect to awarding attorneys fees.

Patent Fee Shifting Stops Not Only Patent Trolls But Industry Bullies Too

What may be less well known is that Octane was not itself a “patent troll” case. Rather, Octane involved another kind of abusive patent litigation; namely, a large company asserting a patent it pulled “off the shelf” against a small start-up competitor. While patent trolls gain economic advantage through economies of scale, large companies have economic advantages over smaller competitors by virtue of their size and resources, and can similarly abuse the system. They can use the high cost to defend patent litigation as a competitive weapon, either to force the smaller competitor to exit the market, discontinue a product line, or pay an unwarranted royalty (thereby hindering the competitor in the marketplace). On remand, the District Court in the Octane case recognized just this sort of economic coercion, and found the case exceptional warranting a fee award. And last week, the District Court awarded almost $2 million in fees and costs to Octane, the prevailing accused infringer.

The path to prosperity requires sound patent policy, not more patent reform

Innovation is the lifeblood of a prosperous economy. Sound patent policy, which encourages the nexus between risk and ideas (especially for small entrepreneurs), makes invention profitable. The U.S. patent system enables that dream by protecting the market an invention creates long enough for the inventor to gain a toehold against competition, and by creating a property right capable of attracting critical investment to bring the invention to market and grow the business. Don’t let H.R. 9 or S.1137 kill this can do American spirit of innovation.