Recent news coverage of patent fee shifting shows the increased
risk to patentees under § 285 and proposed legislative reforms.

Law360: Security Cos. Win Extra Fees Atop $6.6M Post-Octane Haul

A Pennsylvania federal judge awarded supplemental attorneys’ fees to Tyco unit Sensormatic Electronics and All-Tag Security SA in a patent infringement suit brought by Checkpoint Systems Inc., adding more than $1 million, plus interest, to an original $6.6 million fee award that was reinstated following the high court’s Octane decision…. Read the full story here »

Law360: Anti-‘Patent Troll’ Tech Startup Wins Atty Fees in IP Row

A tech startup with a policy to “never settle with trolls” was awarded nearly $700,000 in attorneys’ fees by a Florida federal judge, who said the unsuccessful patent infringement suit brought by Advanced Ground Information Systems Inc. was “exceptionally weak.” Read the full story here.

Law.com: Newegg Wins Legal Fees in ‘Frivolous’ Patent Appeal

The Court of Appeals for the Federal Circuit ruled that Acacia Research subsidiary AdjustaCam LLC brought a frivolous appeal against Newegg, and awarded the online retailer $15,000. That was half of the amount Newegg had requested, but Newegg’s general counsel welcomed the decision as “recognizing just how outrageous and frivolous… Read the full story here »

Law360: Rembrandt Fights $41M Fee Bid in Cable Co. Patent Battle

Rembrandt Technologies LP told a Delaware federal judge that a $41 million fee request by Comcast Corp. and other major cable companies is excessive and unreasonable because the fees aren’t tied to alleged bad conduct by Rembrandt in patent lawsuits against the cable providers. Rembrandt, fighting to reargue a fee… Read the full story here »

Law360: E-Retailers Ask Gilstrap for Fees in Axed EDekka IP Suit

Mars Inc., Jockey International Inc., and other companies accused by eDekka LLC of infringing a shopping cart patent invalidated by Eastern District of Texas Judge Rodney Gilstrap urged him to award attorneys’ fees, saying the suits had no basis and should never have been brought. The companies are among 168… Read the full story here »

Law360: Qualcomm Seeks $2M in Attys’ Fees for Logistics IP Row

Qualcomm is seeking nearly $2 million in attorneys’ fees from a freight shipping company that engaged for more than six years in multidistrict litigation in Ohio federal court over infringement claims for its trucking logistics patent. In its motion, Qualcomm argued that the MDL should be deemed “exceptional” because R+L… Read the full story here »

Law360: Shook Hardy, Coke Slam Ethox’s $3.5M Fee Bid in IP Case

Coca-Cola and its attorneys at Shook Hardy & Bacon LLP blasted Ethox Chemical’s bid for $3.5 million in attorneys’ fees in a dispute over inventor rights in a packaging patent, disputing Ethox’s claim that the attorneys committed misconduct and accusing it of taking “unreasonable” positions. Coca-Cola argued that Ethox’s bid… Read the full story here »

The Recorder: Arnold & Porter Goes After Fees in ‘Win One-Lose One’ IP Case

It’s become routine for companies to ask for attorney fees following defense wins in patent cases. But a request by TriReme Medical Inc. for nearly $5 million in fees after besting medical device rival AngioScore Inc. at trial is one of the largest in the Northern District of California since… Read the full story here »

Law360: Etsy, Pinterest Prod Congress to Act on ‘Patent Troll’ Bills

Etsy, Pinterest, Tumblr and nearly 200 other companies pushed Congress to crack down on so-called “patent trolls” by passing laws that would place reasonable limits on discovery and on the ability for litigants to “cherry pick” district courts, according to a letter the companies sent to House Speaker John Boehner… Read the full story here »

Law360: Novartis Snags Atty Fees from Webvention in Patent Fight

A Maryland federal judge awarded Novartis Corp. attorneys’ fees Wednesday in a patent infringement suit brought by defunct Webvention LLC, holding that Webvention unnecessarily dragged out proceedings after its patent’s claims were rejected by the U.S. Patent and Trademark Office. Read the full story here.

Today’s General Counsel: Make Your Opponent Pay Your Attorney Fees

In Octane Fitness v. Icon Health & Fitness, the Supreme Court significantly altered the standard for shifting attorneys’ fees. Since this decision, district courts have taken the lead and are awarding attorneys’ fees to successful defendants at rates far greater than under the prior standard, which was impossible to meet…. Read the full story here »

The Patent Investor: Gerchen Keller Capital Is Betting on Fee Shifting with Athena FSP

Athena FSP, the Gerchen Keller Capital, LLC business run by Katharine Wolanyk, which provides protection from fee shifting motions based on recent U.S. Supreme Court rulings, is a bet that such awards fee are the new reality and are likely to continue to grow substantially. Chicago-based Gerchen Keller launched Athena… Read the full story here »

The Patent Investor: Acacia CEO Plays Down Effect of Recent and Pending Fee Shifting Rulings Against Acacia Units

Acacia Research Corp. CEO Matthew Vella played down the implications of a recent ruling by the U.S. Court of Appeals for the Federal Circuit affirming a federal court ruling awarding NetApp Inc. $1.4 million in exceptional cases fees against Acacia unit Summit Data Systems LLC. An analyst from Stephens Inc…. Read the full story here »

Law360: ‘Patent Troll’ Says HTC, Motorola Overreaching on Fees

Advanced Video Technologies LLC, which was recently called a “patent troll” by a New York federal judge and ordered to fork over certain attorneys’ fees to HTC, Motorola Mobility and BlackBerry in a dismissed patent infringement suit, has told the court the companies overshot their fee request. Read the full… Read the full story here »

Law360: Rudolph Must Pay Atty Fees, but Not $3.2M, Federal Circuit Says

A lower court was correct to grant patent owner Integrated Technology Corp. attorney fees in a patent infringement case it brought against rival Rudolph Technologies Inc., the Federal Circuit ruled, though it said the $3.2 million ITC was awarded was wrong. Read the full story here.

Law360: Federal Circuit OKs Partial Fees for Fishing Patent Under Octane

Fishing gear maker Normark will have to settle for attorneys’ fees for only a portion of its work defending patent litigation brought by a rival, according to a Federal Circuit ruling affirming that claims dropped mid-suit warranted fees under the U.S. Supreme Court’s Octane Fitness ruling. Read the full story… Read the full story here »

Law360: ‘Reckless’ NetApp IP Suit Costs Acacia $1.4M at Fed. Circuit

The Federal Circuit affirmed a decision ordering an Acacia Research Group subsidiary to pay computer storage maker NetApp Inc. $1.4 million in attorneys’ fees for filing a “reckless and wasteful” patent suit, which NetApp says should send a strong message to the major nonpracticing entity. Read the full story here.

The Recorder: NetApp Wins Fees in ‘Double Dip’ Patent Suit

The Federal Circuit affirmed a $1.4 million attorney fee award against an Acacia subsidiary, after a Delaware federal judge found the suit to be exceptional due in part to the fact that the defendant’s system indirectly benefitted from the plaintiff’s license to RPX. Read the full story here.

IAM: More Motions for Fee-Shifting Are Being Filed but the Rate at Which They’re Being Awarded Is Steady

It is still too early to draw any definitive conclusions on the impact of Octane, but early numbers might help the arguments of the pro-reform community who claim that more fee-shifting should be permitted to help deter unmeritorious infringement suits.  However, they could also suggest that Octane has made parties more likely to seek… Read the full story here »

Law.com: Gilstrap Dismisses 168 Patent Cases, Considers Attorney Fees

Texas Federal Judge Rodney Gilstrap eliminated nearly 10 percent of his patent docket when he dismissed 168 cases filed by a serial plaintiff that was pursuing ineligible patent infringement claims. The ruling is significant because Gilstrap has asked for consolidated briefing from defendants as to whether the plaintiff’s claims amount… Read the full story here »

IAM: Gerchen Keller makes key hire to lead fee-shifting insurance push

Katharine Wolanyk’s hire looks like a smart move by GKC. She’s well known in the patent community, having spent over 12 years at Soverain, a software business which owns a portfolio of ecommerce patents. She’s also highly experienced at the cutting edge of patent infringement lawsuits and is very familiar… Read the full story here »

Law360: Calif. Zynga Patent Case Is A Warning To Plaintiffs Attorneys

Although the California federal court ultimately decided not to make the lawyers liable for the full fee award in Segan v. Zynga, the decision represents a clear signal to lawyers who represent patent owners — filing a case that a court concludes was frivolous from the outset could subject you… Read the full story here »

Law.com: Litigious NPE Earns Censure, Escapes Sanctions

A Texas NPE was censured by a California federal judge but avoided an award of over $800,000 in attorney fees, after the NPE dropped its claims when the same judge found all five of the asserted patents ineligible under Section 101 in a separate case. Read the full story here.

Law360: Newegg Gets Another Shot at Fees in IP Row After Octane

The Federal Circuit ordered a Texas court to reconsider its 2013 ruling denying a fees motion by online retailer Newegg and others against an Acacia subsidiary, noting in a footnote that defendants’ arguments “appear to have significant merit.” Read the full story here.

IPWatchdog: Patent Fee Shifting Stops Not Only Patent Trolls, But Industry Bullies Too

In a guest post for IPWatchdog, counsel for Octane Fitness suggest ways to improve the odds of winning a fee-shifting award, whether against a patent troll or a large company competitor. Read the full story here.

Corporate Counsel: Congress Tries Once More, With Feeling, on Patent Reform

The patent reform debate resumed after Congress’s summer recess, with representatives from large companies and industry associations attending a closed meeting with Senate staff, and companies that have been targeted by NPEs writing both chambers to urge swift passage of legislation. Read the full story here.

Law360: Judge Orders $1.19M In Attys’ Fees In ‘Unreasonable’ IP Suit

A California federal judge ordered Segan LLC to pay $1.19 million in attorneys’ fees to Zynga Inc. and additional sanctions for filing a “totally unreasonable” infringement suit over a patent covering character icons that can interact with websites. Read the full story here.

The Recorder: Blank Rome Blasted for ‘Baseless’ Patent Claims Against Zynga

U.S. District Judge Vince Chhabria awarded $1.2 million in “exceptional case” attorney fees to Zynga—including $100,000 in Rule 11 sanctions against Blank Rome—for bringing a patent infringement suit that was “objectively baseless from the start.” Read the full story here.

Politico: Patent Bill Headed to House and Senate Floors This Fall

Patent reform supporters in both chambers remain optimistic they can bring their bills to the floor once Congress deals with a packed September agenda, targeting a late fall timeline. Read the full story here.

The Recorder: ‘Payback’ Patent Suit Prompts Hefty Fee Award

In one of the largest post-Octane awards to-date, a California federal judge awarded $4.6 million in fees and costs, noting the sizeable award was justified by improper motivation in bringing suit and “significant difficulties unnecessarily caused by plaintiff.” Read the full story here.

Inside Counsel: Federal Judge Awards Fees in Octane Case

On remand following the Supreme Court decision in the case, a Minnesota federal judge conducted a detailed review of invoices, expenses, local billing rates and other evidence before awarding about $1.8 million in fees and costs. Read the full story here.

Law360: ‘Patent Troll’ Must Pay HTC, Motorola Atty Fees In IP Row

A New York federal judge on Friday awarded partial attorneys’ fees to HTC Corp., Motorola Mobility LLC and BlackBerry Ltd. in a dismissed patent infringement suit brought by Advanced Video Technologies LLC, which the judge called a “patent troll” that must pay fees under the U.S. Supreme Court’s Octane ruling…. Read the full story here »

National Law Review: Filing Serial Lawsuits for Nuisance Settlements May Be “Exceptional” if Improper Intent Established

While agreeing that a practice of filing lawsuits for the purpose of forcing settlements could make a case “exceptional,” the Federal Circuit held that the district court did not abuse its discretion in denying a motion for fees in this particular case. Read the full story here.

Law.com: Judge Orders $6.5M in Attorney Fees in Patent Case

On remand after Octane, a Pennsylvania federal judge awarded $6.5 million in attorney fees after finding that the plaintiff “brought suit in bad faith with the improper motive of crippling defendants’ business.” Read the full story here.

Law360: Security Cos. Win $6.6M Attys’ Fees Award After Octane

A federal court judge recently awarded $6.6M in attorneys’ fees when the case was remanded by the Federal Circuit for reconsideration under the Octane standard. Read the full story here.

The Legal Intelligencer: Will Patent Reform Legislation Curb ‘Abusive’ Litigation?

As Congress considers patent reform litigation, both the House and the Senate are considering bills that would increase the likelihood of fee shifting. The language being proposed by both chambers suggests that Congress does not believe that “the Supreme Court cases have addressed the problem perceived by legislators.” Read the… Read the full story here »

The Recorder: Niro Firm Slapped With $4 Million in Sanctions

An Illinois federal judge found a plaintiff and its law firm jointly and severally liable for over $4 million in fees and costs, while declining to “pierce the corporate veil” to hold the client’s owner personally liable because the defendant and the plaintiff’s law firm waited too long to add… Read the full story here »

Supreme Court Brief: Attorney Fee Awards Surge After High Court Patent Decision

The article cites a recent study by the Federal Circuit Bar Association, which reported that “The raw number of fee awards to prevailing accused infringers has more than quadrupled in the 11 months since Octane was decided, as compared with decisions in the 12 months preceding Octane. The rate at… Read the full story here »

IAM: The Innovation Act is Pulled, But Uncertainty Lingers and That’s Bad for Business

Intellectual Asset Management reports on the last-minute tabling of patent reform legislation in July, noting the growing opposition and the business uncertainty caused by the competing bills in the House and Senate. Read the full story here.

Bloomberg Business: Patent Owners Flock to U.S. Courts as Congress Ponders New Curbs

A record number of patent suits were filed in the second quarter of 2015, according to data from Lex Machina, as Congress debates another round of patent reform legislation. Read the full story here.

Law360: An ‘Exceptional Case’ One Year After Octane

Experienced patent litigators at Paul Hastings LLP provide a background on patent fee-shifting and explain the impact of Octane Fitness on district courts’ decisions to award attorneys’ fees. The authors note that “the Supreme Court’s Octane and Highmark decisions have drastically altered the fee-shifting landscape in patent cases,” and provide… Read the full story here »

Law360: Judge Confirms $4.7M Atty Fees Award In Highmark IP Saga

A Texas federal judge upheld an award of nearly $4.7 million in attorneys’ fees to Highmark Inc. in its long-running declaratory judgment fight against Allcare Health Management Systems Inc., finding that Allcare’s unsuccessful case over an information management system patent remained “exceptional” in light of the new standard set out… Read the full story here »

Litigation Daily: Dow Gets $6M in Attorneys Fees in Bayer Patent Dispute

A Delaware federal judge ordered Bayer to pay nearly $6 million in attorney fees in one of the largest fee awards since the Supreme Court increased the penalties for meritless patent suits in 2014. Read the full story here.

Patently-O: Emerging Trends Post-Octane Fitness

In a guest post at Patently-O, the author of a recent study explained that, “in the ten months following the Supreme court’s holding in Octane, there has been a significant increase in the number of motions made for attorneys’ fees under § 285, as well as the number of attorneys’… Read the full story here »

IP Watchdog: Courts Award Attorneys’ Fees on 50% of Motions Post Octane

IP Watchdog highlighted a recent study by the Federal Circuit Bar Association that examined the impact of Octane Fitness and Highmark on lower courts’ fee shifting decisions. According to the study, “50% of motions for fees under section 285 filed by accused infringers were granted between January 1, 2015, and… Read the full story here »

Law360: 11 Lessons From a Year of Post-Octane Attorney Fee Decisions

A review by attorneys from Venable LLP highlighted the reduced standard for fee shifting awards under Octane Fitness and Highmark. The group noted several ways that a case can be deemed “exceptional,” including if a party advances arguments that are particularly weak and lack support in the record, or seek… Read the full story here »

Law360: Patent Law Reform – Proceed With Caution

An analysis of patent reform legislation approved by the House highlighted the reduced standard for fee shifting under Octane Fitness and Highmark as well as the even lower standard for fee shifting that was included in the bill. Read the full analysis here (subscription required).

Law360: Three Takeaways from Post-Octane Fitness Cases

According to two IP litigators from Dickstein Shapiro LLP, several conclusions can be drawn from post-Octane Fitness cases. Among other things, the strength of the case remains a critical factor in the “exceptional” case determination; and removing the requirement that a case is brought in subjective bad faith and instead… Read the full story here »

Law360: Octane-Fueled Reversal Shifts Patent Suit Fees To Chipmaker

A California federal judge has ruled that memory chipmaker Kilopass Technology Inc.’s patent suit against its rival was out-of-bounds enough to stick it with its opponent’s legal bill.  The court found that Kilopass’ patent litigation against rival Sidense Corp. fit new standards handed down by the U.S. Supreme Court in Octane… Read the full story here »

Law.com: Patent Foes Square Off Over New Fee Shifting Rules

It’s been three months since the U.S. Supreme Court ruled on fee-shifting in patent infringement lawsuits. But battles over how to apply the new standards are just beginning, as two companies at the center of the high court’s rulings illustrated this week….Michelle Lee, deputy director of the U.S. Patent and… Read the full story here »

Law360: USPTO Head Says Fee Shifting Should Be Part Of Patent Bill

As members of Congress work to pass stalled legislation aimed at abusive patent litigation, they should include measures to clarify when losing parties should pay the winning party’s legal fees, the head of the U.S. Patent and Trademark Office told Congress Wednesday. She said that although the U.S. Supreme Court… Read the full story here »

Litigation Daily: Litigation Funder Gerchen Keller Launches Patent Fees Venture

Patent holders are increasingly concerned about having to pay their adversaries’ legal fees. The litigation funder Gerchen Keller Capital thinks it has a solution. GKC’s affiliate Athena FSP makes a simple offer to patent holders: If a judge grants your opponent’s attorney fees, we’ll cover $3 million of the award. In exchange,… Read the full story here »

Patently-O: Fee Shifting as a Risk Management Exercise

In return for a percentage share of any eventual award or settlement, Athena FSP will promise to pay any attorney fee award lodged against their partner. For patent assertion entities, this model eliminates the downside risk of losing a fee shifting award by reducing the potential upside by a few… Read the full story here »