Fee Request Remanded To See If Any Change In Result.
In Gaymar Industries, Inc. v. Cincinnati Sub-Zero Products, Inc., No. 2014-1174 (Fed. Cir. June 25, 2015), a district court (based on a magistrate judge’s recommendations) denied “exceptional case” attorney’s fees under 35 U.S.C. § 285 to defendant prevailing in a patent infringement case. The bases were two-fold: (1) plaintiff did not take any objectively baseless positions in the litigation, and (2) defense counsel had engaged in litigation misconduct such that the matter could not be deemed “exceptional” in nature.
The Federal Circuit affirmed basis number 1, but reversed basis number 2 and remanded to make sure that the number 2 reasoning did not taint the entire fee denial order.
With respect to basis number 2, the appeals court found that there had been no misrepresentations by defense counsel, only overstatements or sloppy arguments that in the end showed no inconsistency in positions. The court found that bad lawyering is not the equivalent of misconduct for purposes of awarding section 285 fees under the Octane analytical framework.