Intellectual Property: En Banc Ninth Circuit Agrees That Lanham Act “Exceptional” Cases For Fee Recovery Purposes Tracks Patent Analysis For Fee Recovery Articulated In Octane Fitness

 

Also Agrees That Appellate Review Of Lanham Fee Award By District Judge Is Under Abuse Of Discretion Standard.

    In an en banc, per curiam opinion, the Ninth Circuit in SunEarth, Inc. v. Sun Earth Solar Power Co., Nos. 13-17622/15-16096 (9th Cir. Oct. 24, 2016) (published), decided that attorney’s fees awardable under the Lanham Act, for purposes of determining if the case is “exceptional,” must be based on the totality of the circumstances and on an exercise of district court discretion based on the nonexclusive factors identified in Octane Fitness LLC v. KON Health & Fitness, Inc., 134 S. Ct. 1749 (2014), a patent case analyzing similar “exceptional” case language.  In doing so, the Ninth Circuit followed the same results reached by the Third, Fourth, Fifth, and Sixth Circuits, but departed from the analyses of the Second and Seventh Circuits on the Lanham Act issue.  Also, the Ninth Circuit held that a reviewing court’s review of a district court’s discretion under the Lanham Act fee provision is for abuse of discretion pursuant to Highmark, Inc. v. Allcare Health Mgt. Sys., Inc., 134 S. Ct. 1744 (2014), another patent case.