Working Out with Octane Fitness: Four Years Later
On February 2, 2018, in Sophos Inc. v. RPost Holding, Inc., Judge Denise Casper became the latest judge to declare a case “exceptional” under 35 U.S.C. § 285 and award the declaratory judgment plaintiff, Sophos, the opportunity to recover its attorneys’ fees. The court’s decision in Sophos comes as the four year anniversary of the Supreme Court’s landmark decision in Octane Fitness v. ICON Health & Fitness rapidly approaches. After Octane Fitness, many predicted a large uptick in the number of fee-shifting motions filed and their success rate in patent cases. This article explores the fallout from Octane Fitness after four years on the books and any trends that have emerged in the courts.