LITIGATION
Exceptional Cases Under § 285 Could Generate Higher Attorney Fees in Patent Litigation By LIONEL LAVENUE AND JOSEPH MYLES is entitled to reasonable attorney’s fees. Courts use the “lodestar” method to calculate a reasonable attorney’s fees award, by multiplying the number of hours reasonably spent on the litigation by a reasonable hourly rate. Both can diverge from counsel’s actual billing and requested fees, leading to a reduction in the total fee award. Avoiding reductions better compensates the client and raises the risk to the opposing party.
REASONABLE AMOUNT OF HOURS
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atent assertion entities (”PAEs”: companies that buy patents to enforce them for money) can commonly use “the cost of litigation” as leverage for settlements and licensing from businesses that make products. One tool to fight back against “the cost of litigation” by PAEs is 35 U.S.C. § 285, which allows the recovery of fees and costs, where “[t]he court in exceptional cases may
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award reasonable attorney fees to the prevailing party.” As clarified in Octane Fitness v. ICON Health & Fitness, an exceptional case is one that “stands out from others” based on the “strength of the party’s litigation position” or “the unreasonable manner in which the case was litigated.” Once a district court determines that a case is exceptional, the prevailing party
NOVEMBER 2023
To determine a reasonable number of hours, courts review billing narratives and consider whether the time spent and tasks performed were reasonable. For instance, courts refuse to award fees for duplicative work or tasks that were unnecessary to the client’s litigation. And, under Hensley v. Eckerhart, courts require counsel to exercise their “billing judgment” and omit this duplicative or unnecessary work from the fees motion. The moving party bears the burden to demonstrate it exercised billing judgment. Courts expect the movant to either write some billable time off or explain why none of the time needed to be written off. Failing to do either may cause the court to BACK TO CONTENTS
