Christine Armellino

Five years ago today, the Supreme Court issued its decision in Octane Fitness LLC v. ICON Health & Fitness, Inc., empowering district courts to award attorneys’ fees in those patent case that “stand out from others.”  Last year, we crunched the numbers and explored several notable trends that have emerged post-Octane Fitness. For that article, we looked at nearly 420 decisions spanning nearly four years. In the last 14 months, district courts have been asked to declare patent cases exceptional another 165 times. Below, this article revisits the statistics and takes a deeper look at the line between zealous advocacy and litigation misconduct that can serve as the basis of an exceptional case determination.