September 15, 2020 Articles

Standing Out: Section 285 Attorney Fees in the District of Delaware

How the District’s courts since Octane have evaluated whether a patent case is “exceptional” and merits fee shifting under 35 U.S.C. § 285

By Katharine Lester Mowery and Valerie Caras

More than six years ago, the U.S. Supreme Court handed down Highmark Inc. v. Allcare Health Management System, Inc., 572 U.S. 559 (2014), and Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014), clarifying the analysis district courts could use when determining whether a patent case is “exceptional” so as to merit fee shifting under 35 U.S.C. § 285. This article examines how judges within the U.S. District Court for the District of Delaware have addressed some of the recurring arguments they have confronted in adjudicating section 285 motions—specifically regarding whether, under the Supreme Court’s standard set forth in Octane, a case “stands out from others with respect to the substantive strength of a party’s litigating position. . . .” Octane, 572 U.S. at 554.

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