On Remand, Section 285 Attorney Fees Awarded in Octane Fitness

Following remand, the court granted defendant's renewed motion for attorney fees under 35 U.S.C. § 285 and found that plaintiff's claims were exceptionally weak. "In comparing this case to the many patent cases over which this Court has presided during the past 22 years as a federal judge, [plaintiff's] litigation position stands out as a particularly and unusually weak case on the merits. The arguments advanced by [plaintiff] bore no relation to what the [patent-in-suit] disclosed and covered. The claim language, specification, prosecution history, inventor testimony, and [plaintiff's] own expert testimony posed major obstacles to [plaintiff's] success on the merits. [Plaintiff] must have known that the odds of winning this lawsuit were very slim. . . . [A]lthough [defendant], in its original motion for attorney’s fees, did not establish by clear and convincing evidence that [plaintiff's] claims were objectively baseless, it has shown by a preponderance of the evidence that [plaintiff's] litigation position was exceptionally weak."

Icon Health & Fitness, Inc. v. Octane Fitness, LLC et al, 0-09-cv-00319 (MND July 1, 2015, Order) (Montgomery, J.)

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Rule 11 Does Not Prohibit Section 285 Attorney Fees Award Against Represented Party

Following dismissal of plaintiff's actions for Rule 11 violations, the court granted defendants' motion for attorney fees under 35 U.S.C. § 285 and rejected plaintiff's argument that Rule 11 prohibited an award of fees against a represented party. "Plaintiff contends that [awarding fees] would undermine Rule 11(c)(5)(A), which provides that fees should not be assessed against a represented party for a violation of Rule 11(b)(2). . . . Plaintiff was unable to cite any cases supporting its proposition. One of the factors to consider in deciding whether a case is exceptional is 'objective unreasonableness (both in the factual and legal components of the case).' An objectively unreasonable legal argument is therefore an appropriate consideration in declaring a case exceptional, even if the party is represented."

Vehicle Operation Technologies LLC v. Ford Motor Company, 1-13-cv-00539 (DED July 1, 2015, Order) (Andrews, J.)