Counsel Not Liable for Attorney Fees Award Under 35 U.S.C. § 285​

Following summary judgment of noninfringement, the court granted defendant's motion for attorney fees under 35 U.S.C. § 285, but denied defendant's motion to hold plaintiffs' counsel jointly and severally liable for those fees. "[Defendant] seeks to hold Plaintiffs’ attorneys jointly and severally liable for attorneys’ fees under § 285; however, [defendant] cites no authority for its request, and both the text of the statute and applicable authority indicate the contrary. Furthermore, Plaintiffs’ attorneys brought this suit two years before the Supreme Court’s decision in [Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014)], which significantly altered the legal landscape concerning fee-shifting under § 285."

Technology Properties Limited, LLC v. Canon, Inc. et al, 4-14-cv-03640 (CAND January 26, 2017, Order) (Wilken, USDJ)

“Long-Shot” Motion for Attorney Fees Does Not Warrant Rule 11 Sanctions After Octane​

The court denied plaintiff's motion for Rule 11 sanctions for defendant's unsuccessful motion for attorney fees. "[Defendant's] section 285 motion was quite light on support. However, the court finds an award of attorneys’ fees to [plaintiff] as a sanction inappropriate for the following reasons. First, after [Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014)], long-shot section 285 motions appear to be quite common. It would be difficult to sanction [defense] counsel for following the well-trodden road of seeking to extend the law under Octane’s somewhat amorphous equitable factors. Second . . . [plaintiff's] decision to not serve a Rule 11 letter to [defendant] before trial somewhat undermines its persuasiveness as to the section 285 motion because it causes the Rule 11 motion to verge on appearing 'simply an effort to extract some measure of revenge.'. . . It is not plain that awarding [plaintiff] attorneys’ fees would more efficiently deter frivolous section 285 motions better than the attorneys’ fees that [defendant] itself incurred on briefing a fruitless section 285 motion and opposing the Rule 11 motion."

Hach Company v. In-Situ, Inc., 1-13-cv-02201 (COD November 22, 2016, Order) (Shaffer, MJ)