A recent Corporate Counsel story, “In Patent Case, Fitness Co. Wants $2.8M in Attorney Fees,” reports that Octane Fitness, the small Minnesota-based company that transformed the law governing the awarding of attorney fees in patent litigation, has asked a federal judge in the U.S. District Court for the District of Minnesota to award it more than $2.8 million in attorney fees and expenses.
The fee request comes more than a year after the U.S. Supreme Court decided that the U.S. Court of Appeals for the Federal Circuit’s interpretation of the standard for awarding attorney fees was too inflexible and rigid. District courts have more leeway in deciding whether the prevailing party should be awarded attorney fees, the high court said.
Octane’s $2.8 million fee request is not insignificant, but other companies have been granted higher fee awards since last year’s Supreme Court decision, which now is commonly referred to as Octane. Sidense Corp., for example, was awarded more than $5.5 million in fees earlier this year after a district judge in California found that a patent infringement suit brought by Kilopass Technology Inc. was “objectively baseless” and “exceptionally meritless.”
The amount Octane requested is less than what has been demanded in many other cases because Octane was represented by a Midwest firm, where fees are about 40 percent lower than on the coasts, according to Octane attorney Rudy Telscher of Harness Dickey in St. Louis.
The judge has given ICON a week to respond to Octane’s fee request. She is expected to issue her final ruling on the fee award soon.
The impact of Octane already has been significant in the world of patent law. Between 2005 and 2011, no fee awards were affirmed based on the weak merits of a case. But in the year since Octane, there have been more than 30 such awards.
Still, some attorneys says the law doesn’t go far enough, and some judges remain reluctant to award fees. The Eastern District of Texas, a favored venue for nonpracticing entity litigation, has not yet granted any attorney fees to prevailing defendants.