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April 24, 2017

Where Exceptional Becomes Normal

Where Exceptional Becomes Normal

Garrison Keillor’s imaginary Lake Wobegon is known because the place “where all of the women are strong, all of the males are good-searching, and all sorts of youngsters are excellent.” Exceptional will get defined lower if this pertains to everybody.

Recently, the united states Top Court has defined lower the word exceptional regarding patent violation cases. A Legal Court makes getting attorneys’ charges simpler for individuals victimized by patent litigation, although further Congressional action might be necessary to really make it more available.

In Octane Fitness, LLC v. ICON Health & Fitness, Corporation. a largely unanimous Top Court reinterpreted the term “exceptional” within the statute 35 U.S.C. § 285, which claims that “The court in exceptional cases may award reasonable attorney charges towards the prevailing party.” Under an interpretation produced by the government Circuit, “exceptional” meant either “when there’s been something inappropriate conduct,” or whenever a suit is “introduced in subjective bad belief” and “fairly groundless.” See Brooks Furniture Mfg, Corporation. v. Dutailier Int’l Corporation., 393 F.3d 1378, 1381 (Given. Cir. 2005). This isn’t not even close to the conventional accustomed to sanction parties or counsel under Given. R. Civ. P. 11(c) .

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Where Exceptional Becomes Normal
by: Andrew K Jacobson

Garrison Keillor’s fictional Lake Wobegon is famous as the place “where all the women
are strong, all the men are good-looking, and all the children are above average.”
Exceptional gets defined down when it applies to everyone.

Last month, the US Supreme Court has defined down the term exceptional regarding
patent infringement cases. The Court has made getting attorneys’ fees easier for those
victimized by patent litigation, although further Congressional action may be necessary
to make it more available.

In Octane Fitness, LLC v. ICON Health & Fitness, Inc. a largely unanimous Supreme
Court reinterpreted that the term “exceptional” in the statute 35 U.S.C. § 285, which
states that “The court in exceptional cases may award reasonable attorney fees to the
prevailing party.” Under an interpretation developed by the Federal Circuit,
“exceptional” meant either “when there has been some material inappropriate conduct,”
or when a lawsuit is “brought in subjective bad faith” and “objectively baseless.” See
Brooks Furniture Mfg, Inc. v. Dutailier Int’l Inc., 393 F.3d 1378, 1381 (Fed. Cir. 2005).
This is not far from the standard used to sanction parties or counsel under Fed. R. Civ.
P. 11(c) .

The Supreme Court now finds 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.” Bad faith no longer needs to be found – just
something unusual or unreasonable.

Moreover, under a case decided the same day by the Supreme Court, Highmark Inc. v.
Allcare Health Management System, Inc., these awards of attorneys’ fees are not to be
reviewed under a restrictive “clear and convincing evidence” standard, but a much more
forgiving review for abuse of discretion by the district court.

Octane Fitness will allow many more district courts to penalize both patent trolls and
those who try to grind down a patent holder, by elevating the risk that they will be found
liable for the winning party’s attorneys’ fees. However, the judicial system has gone as
far as it can in reinterpreting how patent trolls are punished. The next step belongs to

www.BayOakLaw.com Bay Oak Law
Tel: (510) 208-5500 180 Grand Avenue, Ste 700
Fax: (510) 208-5511 Oakland, CA 94612

Congress. It should amend 35 U.S.C. § 285 to further lower the hurdle for attorneys’
fees. In copyright infringement litigation under 17 U.S.C. § 505 a court does not have to
find “exceptional” circumstances to award reasonable attorneys’ fees to the winner.
Alternatively, Congress can prescribe attorneys’ fees to the winning party, unless there is
good cause not to, such as very close questions of law or fact. While patent litigation is
already much more expensive because they inevitably deal with the leading edge of
technology, the prospect of having to pay for both sets of lawyers will focus the minds of
parties on solving the issue sooner – and cheaper.

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One Comment
  1. In fact his prices are quite accurate. As a developer myself, I paid $100-150 per 2.5-3.5 minute, high quality song from an established composer. My sound effects cost 5-6 times his, but I am working with a Grammy Award winning audio engineer with his own established/famous studio. I suggest that you are either a struggling composer or have limited experience in hiring. I also suggest that you think before challenging and offending a professional who shared their intimate business experiences with the public. I wouldn’t dare divulge this much of my books publicly, as I am all too familiar with how everyone with access to the comments section is more of an expert than that of the author.

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