Recovering Attorneys' Fees in Patent Litigation Post-Octane Fitness and Highmark

Proactive Strategies for Fee Motions Under a New Fee Awards Standard

Recording of a 90-minute premium CLE webinar with Q&A

Conducted on Tuesday, November 4, 2014

Recorded event now available

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Course Materials

This CLE course will provide guidance to patent counsel on the new standard for awarding attorney fees in patent litigation and on strategies for fee motions. The panel will review recent Supreme Court decisions impacting attorney fees and the implications of the decisions for patent counsel.


The Supreme Court made key changes to the awarding of attorneys’ fees in patent litigation. In Octane Fitness v. Icon Health & Fitness (Apr. 29, 2014), the Court rejected the rigid formula for determining when a case was exceptional and directed district courts to exercise full discretion when evaluating an exceptional case. In Highmark v. Allcare Health Management Systems (Apr. 29, 2014), the Court held appellate courts should no longer exercise de novo review of a district court’s fee award under 35 U.S.C. §285.

Prior to the Court’s rulings, it was unlikely for a defendant to receive an award of attorneys’ fees absent a finding of inequitable conduct or separately sanctionable litigation misconduct. As a result of the decisions, it will be easier for district courts to shift fees to a prevailing accused infringer if the court concludes the litigation was abusive. The decisions make it more challenging for patent trolls or non-practicing entities. Patent trolls must now factor in the potential of paying attorneys’ fees. 

With a new standard for awarding attorneys’ fees in patent litigation, counsel should adapt its strategies to improve the likelihood of success in recovering attorneys’ fees. Trademark and copyright fee shifting provisions and their application can provide guidance to patent counsel.

Listen as our authoritative panel of patent attorneys review the Octane and Highmark cases and the application of the fee shifting statute. The panel will examine the new standard for obtaining attorneys’ fees and draw on lessons from trademark and copyright law. The panel will discuss the implications of the Court's decisions, recent district court decisions applying the new standards, and offer strategies for fee motions going forward.



  1. Review of Octane and Highmark decisions and §285
  2. New standard for obtaining attorneys' fees
  3. Implications of the Supreme Court decisions and application going forward
  4. Lessons from trademark and copyright law
  5. Best practices


The panel will review these and other key issues:

  • What is the new standard set for the evaluation of attorney fees in the Supreme Court’s decisions?
  • What is the likely impact of the Octane and Highmark decisions on future patent litigation? On patent troll litigation?
  • What strategies can counsel use to increase the likelihood of success on fee motions?


Kara Fussner
Kara Fussner

Harness Dickey & Pierce

Ms. Fussner's practice focuses on intellectual property litigation in the areas of patents, trademarks, copyrights,...  |  Read More

Rudy Telscher
Rudy Telscher

Harness Dickey & Pierce

Mr. Telscher has litigated for 25 years a wide array of intellectual property disputes. His cases have included...  |  Read More

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