Highmark/Octane Recent Decisions Did Not Require Remand.
In our “In the News” post of September 8, 2014, we explored a recent Federal Circuit decision—Highmark, Inc. v. Allcare Health Mgt. System, Inc.–remanding a fee recovery for reconsideration after SCOTUS’ 2014 Highmark/Octane decisions.
However, Homeland Housewares, LLC v. Hastie2Market, LLC, No. 2013-1537 (Fed. Cir. Sept. 8, 2014) (nonprecedential) demonstrates that not all fee recoveries under 35 U.S.C. § 285 will be remanded under Highmark/Octane. In this one, plaintiff sued defendant maker of the Magic Bullet product (a food blender with plastic cup attachments) for infringement, with the defense obtaining summary judgment based on plaintiff’s repeated failure to provide admissible evidence of infringement. The district judge awarded the defense $253,777 in fees based on the failure to provide admissible evidence, but did not award fee work for unsuccessful invalidity motion efforts.
The Federal Circuit affirmed, finding the fee recovery complied with Highmark/Octane and was no abuse of discretion given the failure to produce admissible evidence of infringement/given the district court’s apportionment of fees.