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Wednesday, August 5, 2015
Which Fees are Recoverable Under 35 USC § 285?
Following a decision to award § 285 attorney fees, district courts often resolve a second wave of disputes concerning the amount and type of fees recoverable. Because district courts exercise broad discretion to fashion a reasonable fee award, these disputes encompass a broad range of factors and arguments including (i) reasonableness of hourly rates, (ii) reasonableness of hours billed, (iii) sufficiency and accuracy of billing records, (iv) reasonableness of law firm staffing, (v) fees for unrelated, unnecessary or non-patent disputes, (vi) fees for disputes in which the award recipient did not prevail, (vii) fees incurred for non-lawyer services, (viii) recovery of contingency fees, and (ix) many other equitable considerations. Since 2008, district courts have addressed these issues in 117 decisions.