A recent PatentlyO Blog story, “Old Reliable v. Cornell: Federal Circuit Again Rejects Award for Attorneys’ Fees” reports that for a second time this year the Federal Circuit has issued a precedential decision reversing an award of attorneys’ fees entered against a patentee (the party that possesses or had been granted a patent).     

In patent cases, 35 U.S.C. § 285 allows district judges to award attorney’s fees to a litigant in an “exceptional” case, where the fee-seeking party satisfies two “exacting” standards – sanctions may be imposed against the patentee only if both (1) the litigation was brought in subjective bad faith, and (2) the litigation is objectively baseless.

The Federal Circuit in Old Reliable Wholesale, Inc. v. Cornell Corp. (pfd) further put the clamps on fee recovery under section 285.  The “objectively baseless” requirement involves a purely objective inquiry that parallels the finding that must be made with respect to willful infringement under section 284.  This standard must be met whether the action is one for willful infringement or determined to be a meritless, non-willful infringement action, with subjective considerations of bad faith playing no role in this determination.  Using these tenets, the Federal Circuit found that the objective threshold was not satisfied, reversing an award of $183,500 in attorney fees and $13,100 in costs against a patentee whose patent was found to be invalid.

See also: “Despite Prevailing in Patent Infringement Case, Google Must Pay Own Attorney Fees”