Two Empirical Studies of Awards of Attorneys' Fees Post-Octane Fitness

Two student notes present some descriptive statistics on U.S. district court awards of attorneys' fees to the prevailing patent owner following the Supreme Court's decision last year in Octane Fitness.

1.  Hannah Jiam has posted a note on ssrn titled Fee-Shifting and Octane: An Empirical Approach Toward Understanding 'Exceptional' (forthcoming, Berkeley Technology Law Journal).  Here is a link to the paper, and here is the abstract:

This note examines the legal landscape for fee-shifting in exceptional cases following the Supreme Court's ruling in Octane Fitness, LLC v. ICON Health & Fitness, Inc. This note considers emerging trends post-Octane Fitness based on an empirical analysis of attorneys' fees granted under § 285 post-Octane Fitness and discusses district determinations of "exceptional."

The empirical portion of the paper (pp. 15-22) states that the author used "LexisNexis and Westlaw to consolidate all cases from April 29, 2014 to March 1, 2015 involving a 35 U.S.C. § 285 motion. The cases retrieved were checked against a list on the blog Patently-O.com that consolidated several fee-shifting motions post-Octane" (p.16 n.84).   Citing research by Professor Colleen Chien, Ms. Jiam states that "[i]n 2011, approximately twenty awards were granted out of eighty-six cases, while in 2002, approximately ten awards were granted out of fifty cases."  By contrast, "[a]fter Octane Fitness the proportion of fee awards granted under § 285 has more than doubled” to 26 out of 59 (although the actual fees awarded in the twelve cases that have reached that issue since Octane Fitness have tended to be modest, mostly ranging from $200,000 to $300,000).  The author also provides a breakdown of fee motion decisions by federal district court and by month, and a table of motions brought against NPEs.  Note, however, that "there is still not enough data to make any statistically significant determinations" (p.18).

For previous discussion on this blog of papers taking measure of the impact of Octane Fitness, see here.  I should note also that Ms. Jiam published a blog post about her paper on the Patently-O Blog in May. 

2.   In addition, Darin Jones has published a note titled A Shifting Landscape for Shifting Fees:  Attorney-Fee Awards in Patent Suits After Octane and Highmark, 90 Wash. L. Rev. 505 (2015).  Here is the abstract:

Section 285 of the Patent Act authorizes courts to award attorney fees to the prevailing party in patent litigation in “exceptional cases.” Until recently, interpretation of § 285 had been governed by a highly restrictive formulation set forth by the United States Court of Appeals for the Federal Circuit. In April 2014, the United States Supreme Court released a pair of decisions—Octane Fitness v. ICON Health & Fitness, and Highmark Inc. v. Allcare Health Management System, Inc.—that rejected the Federal Circuit’s interpretation of § 285 and reinvigorated the potential for fee shifting in patent suits. This Note argues that the Supreme Court’s decisions in Octane and Highmark broaden the potential for parties in patent litigation—particularly defendants—to seek and receive awards of attorney fees. This Note presents a survey and analysis of the district court opinions deciding attorney-fee motions under § 285 announced in the eight months following Octane and Highmark. The results of that survey indicate that defendants are now significantly more likely to receive attorney-fee awards than they were previously. This Note ultimately argues that defendants in patent suits should consider these new fee dynamics as a key element of their litigation strategy from the outset of patent defense cases. Doing so may enable them to take advantage of the newly expanded opportunity for fee shifting. To that end, this Note suggests that defendants should actively strive to inform district court judges about their broad authority to award fees. Additionally, this Note recommends that litigants avoid analogizing to prior successful cases when arguing for fees. Instead, this Note proposes that parties should follow the example set by the Supreme Court and focus on the plain meaning of the statute using common sense arguments.

The empirical portion of the paper (pp. 523-28) states that the author set out to collect every decision interpreting section 285 from April 29 through December 31, 2014 (55 cases).  Of these, 26 resulted in a fee award.  Defendants brought 42 of the motions (20 successfully) and plaintiffs 13 (6 successfully), for an overall success rate of 47%.  The author also lists the number of motions filed, by which party, and the success rate of each, by the leading districts in which such motions have been filed.  Like Ms. Jiam's paper (which presents her data in table 3, pp. 41-61), Mr. Jones's paper lists all of the relevant cases the author has found during the period of time studied (p.524 n.141) and provides some analysis of the early case law.