by Paul Alan Levy
In a decision issued this morning in Octane Fitness v. Icon Health and Fitness, the Supreme Court held that attorney fee awards in patent cases depend on an assessment of the totality of the circumstances, and that either the substantive weakness of the losing party's litigating position (including both facts and law) or the unreasonable manner in which the case was litigated, can be enough to warrant an award of fees. The Court specifically rejected the Federal Circuit's rule demanding both subjective bad faith and clear and convincing evidence that fees are proper.
The ruling is a clear victory for the fight against patent trolls (although that concept, which was heavily featured in the briefing, went unmentioned in the Court's ruling). And given the close resemblance between the attorney fee provisions of the patent statute and of the Lanham Act, I expect the decision will also be a useful weapon in the fight against trademark bullying. The upcoming appeal of an attorney fee award against Jenzabar for its relentless pursuit of a documentary film-maker for its unflattering portrayal of Jenzabar's founders may show the value of Octane Fitness in the trademark context.