Recovery of Attorney Fees

Two decisions - Highmark v. Allcare and Octane Fitness v. Icon Health and Fitness - have given trial courts more discretion to award attorney fees under 35 U.S.C. § 285 and made it more difficult for reviewing courts to disturb a trial court's discretion. Lower courts are also broadening recovery opportunities.

Also discussed during this first portion of the conference will be Innovative Biometric Technology, LLC v. Toshiba (recovery under Rule 41(a)(2), 35 U.S.C. § 285, Rule 56 and 28 U.S.C. § 1927); Straight Path IP Group, Inc. v. Blackberry Ltd. (third-party Netflix recovers for bad faith subpoena enforcement under Rule 45(d)(1)); Medtrica Solutions Ltd. v. Cyagnus Medical LLC (on reconsideration, district court reversed its pre-Highmark denial of attorney fees in light of lower threshold set by Supreme Court); Lee v. Mike's Novelties, Inc. (in a post-Highmark ruling district could would not award attorney's fees despite litigation misconduct and willful infringement).