Do you need assistance or expert testimony as to the reasonableness of an attorney fee request?

          In 1994, the Supreme Court established principles for a discretionary award of attorney fees under the Copyright Act.  Non-exclusive factors to be considered are “frivolousness, motivation, objective unreasonableness” and the need in particular circumstances to advance considerations of compensation and deterrence.  Plaintiffs and defendants are treated the same. But attorney fee awards are not automatic. Fogarty v. Fantasy, Inc., 510 U.S. 517, 527, 533, 534 n. 19 (1994). 

          Ten years later, the Supreme Court defined an “exceptional case” under the Patent Act, relying on Fogarty, as one that “simply stands out from others with respect to the substantive strength of the party’s litigating position, considering both the governing law and the facts of the case, or the unreasonable manner in which the case was litigated.  An “exceptional case” for an award of attorney fees is one that stands out from the others, namely, “not uncommon” or “not run of the mill.”  Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S.Ct. 1749, 1756 (2014).  This was a lower standard for an award of attorney fees than had previously been applied under Section 285 of the Patent Act. 

          In 2018, the Eleventh Circuit applied Octane Fitness to cases brought under the Lanham Act, Tobinick v. Novella, 884 F.3d 1110, 1117-18 (11th Cir. 2018) thus making the landscape uniform across the three major categories of intellectual property law, patents, trademarks and copyrights.

         Have you successfully submitted fee applications that pass the standard of reasonableness suitable for a discretionary judicial award or would consultation with experienced co-counsel be beneficial to you and your client?

         A more significant question: Have you successfully challenged opposing counsel's fee application as excessive or not properly documented, or would consultation with experienced co-counsel be beneficial to you and your client?

Contact us for guidance on this evolving issue.  No charge and no obligation for initial consultation.