Digest of Checkpoint Sys., Inc. v. All-Tag Sec. S.A., No. 2012-1085 (Fed. Cir. Sept. 4, 2014) (non-precedential). On appeal from E.D. Pa. Before Newman, Lourie, and Schall.

Procedural Posture: Patent holder appealed a decision awarding attorney fees for an “exceptional” case under 35 U.S.C. §285. CAFC reversed. The Supreme Court set aside precedent under §285 and granted accused infringer’s petition for a writ of certiorari, and remanded the case to CAFC for further consideration of the attorney fee decision. CAFC vacated and remanded.

  • Exceptional Case/Attorney Fees: The Supreme Court, in its Highmark and Octane Fitness decisions, rejected §285 precedent that required both a showing of subjective bad faith and objective baselessness for finding a case exceptional, and lowered the burden of proof for such a finding. The Court found that “an ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigation position . . . or the unreasonable manner in which the case was litigated.” Whether a case is exceptional is to be determined in view of the totality of the circumstances, and entitlement need not be shown by clear and convincing evidence. Section 285 determinations are to be reviewed on appeal for abuse of discretion.