“The Recorder” Has Done A Survey Of Trends.
According to a recent survey by “The Recorder,” federal district judges have granted 38% of fee requests since the U.S. Supreme Court announced the patent “exceptional” fee-shifting test in Octane Fitness, LLC v. Icon Health and Fitness, Inc., 134 S. Ct. 1749 (2014). S.D.N.Y. is most fee claimant friendly, while E.D. Tex. is the most stingy. N.D. Cal. takes a middle road approach, granting about a third of the requests. However, one N.D. Cal. district judge ordered the Alzheimer’s Institute of America to pay $7.9 million to two large pharmaceutical companies under egregious circumstances.
Post-Octane Fitness, the average reported award was $1.72 million with $700,000 being the median award.
Interestingly enough, NPEs or “patent trolls” are not hit as frequently as one might think, with most of the awards being made in favor of small individual investors. District judges are focusing not on “patent troll” status, but on the strength of the infringement actions or litigation misconduct activities. However, Acacia Research Group was somewhat of an exception, given that four of its subsidiaries have been hit with four adverse fee awards totaling $1.8 million. (But Acacia did successfully defend against four other fee requests.)