In the seminal case establishing a lower standard for attorney fees in “exceptional” patent cases—Octane Fitness LLC v. Icon Health & Fitness Inc.—the district court awarded Octane nearly $1.7 million in attorney fees and costs. On remand from the Federal Circuit, Octane moved to recover nearly $2.8 million in fees and costs in the protracted litigation that eventually led the Supreme Court’s opinion lowering the bar for prevailing parties to recover attorney fees in patent litigations that “stand out” for weak litigation positions or unreasonable litigation conduct. 

At Icon’s urging, the district court subtracted costs for fees relating to a patent that Octane dropped, expert witness fees over a certain limit, and undocumented computerized legal research costs. But the court rejected Icon’s argument that Octane had “overstaffed this case with partner-level attorneys that were performing tasks [such as document review that are] typically performed by lower billing-rate associates.” Finding that the partners had charged rates commensurate with associate billing rates, the district court concluded that the “case was . . . aggressively litigated by Icon, and Octane properly employed skilled and experienced attorneys to defend itself against Icon’s claims.”   

The court also subtracted costs for the appellate and remand proceedings relating to the Section 285 issue, finding that those proceedings were not “exceptional” because “Icon relied on longstanding precedent to argue the case was not exception under the Brooks Furniture standard” and “the Supreme Court broke new ground on the subject by rejecting Brooks Furniture and announcing a new and more flexible standard for determining whether a case is exceptional under [Section] 285.” The court, however, did award fees for Icon’s appeal of the district court’s claim construction order and summary judgment ruling, finding those issues to be “independently exceptional.” Specifically, the court found that “Icon repeated the same exceptionally weak infringement arguments [on appeal] that had been squarely rejected by [the district] court.”

In sum, the district court awarded Octane $1.6 million in fees and $144,697 in costs. 

Icon Health & Fitness Inc. v. Octane Fitness LLC, No. 09-319 (D. Minn. Sept. 1, 2015).