A recent The Recorder story, “Apple, Samsung Clash Over Attorney Fees,” reports that a U.S. Supreme Court patent decision that had nothing to do with trade dress may have everything to do with whether Apple collects attorney fees from Samsung in the litigation over smartphone design.

Apple Inc. wants to recoup $16 million in attorney fees it incurred in the litigation that resulted in a $1 billion jury verdict before U.S. District Judge Lucy Koh of the Northern District of California in 2012.  Apple moved for fees under the Lanham Act, based on jury findings of the trade press dilution, rather than under the Patent Act, where the standard for recovering fees has been higher.

But the Supreme Court changed the standard in April, when it threw out the rigid test for finding a patent case “exceptional,” instructing trial judges to simply consider the totality of the circumstances.  The decision in Octane Fitness v. ICON Health & Fitness interpreted the Patent Act, but the Lanham Act uses identical language.

“Is that now the standard for Lanham Act fees in the Ninth Circuit?” Judge Koh asked Morrison & Foerster partner Rachel Krevans, representing Apple.  Krevans argued that the jury had found that Samsung Electronics Co. acted willfully, and under U.S. Court of Appeals for the Ninth Circuit case law, attorney fees “naturally flow” from willfulness, though she acknowledged there’s no hard-and-fast rule.