Fee Justified Because Case Was Exceptional, And No “Granular” Analysis Required By District Judge.
In Chicago Board Options Exchange, Inc. v. International Securities Exchange LLC, Case No. 07 C 623 (N.D. Ill. Docket No. 778 Mar. 31, 2016), U.S. District Judge Joan H. Lefkow awarded CBOE all of its requested $6,069,266.81 in attorney’s fees after it defensed a patent infringement claim by ISE. The district judge previously found the case was “exceptional” under the patent fee-shifting statute. ISE argued that the fee request should be slashed by 80% in order to not provide a windfall to CBOE for certain activities, but District Judge Lefkow rejected this contention. The problem here was that ISE continued to pursue the patent infringement case even after a seriously adverse appellate ruling by the Federal Circuit. Rather than fold up its tent, ISE caused CBOE to run up more fees. The district judge did not have to use a granular approach, but look at the “totality of the circumstances”—an approach that justified fees when the facts showed continued prosecution of the infringement claim was exceptionally bad judgment.