Intellectual Property: SCOTUS Looks To Attorney’s Fees Flexibility Under Octane Fitness/Highmark In Determining Standards For Treble Damages Of Awards In Exceptional Patent Cases

 

Flexibility, Not Rigid Tests, Is The Guiding Rule.

     Flexibility.  Contortionist in tuxedo jacket, top hat, and tights performing surrounded by other performing contortionists.  c1892.  Library of Congress.

     In the dual cases of Octane Fitness/Highmark, the U.S. Supreme Court adopted a very flexible “under the circumstances” test for awarding attorney’s fees under a patent-fee shifting statute for “exceptional” cases.  SCOTUS also rejected applying a clear and convincing evidentiary standard in such situations.  We can report that the reasoning of those cases has been extended to 35 U.S.C. § 284, which allows a court to increase damages up to three times of the amount found or assessed in an extraordinary patent case.  Halo Electronics, Inc. v. Pulse Electronics, Inc., No. 14-1513 (U.S. Supreme Court June 13, 2016) found that the flexibility in making determinations and the rejection of the clear and convincing standard for fee cases should also guide district judges in their award of enhanced damages under section 284.