Digest LEE v. MIKE’S NOVELTIES, INC., No. 2014-1453 (Fed. Cir. June 23, 2015) (non-precedential). On appeal from C.D. Cal. Before Dyk, Moore, and Wallach. Per Curiam.

Procedural Posture: Plaintiff appealed a decision denying its request for attorney’s fees pursuant to 35 U.S.C. § 285. The Federal Circuit had previously ruled as a matter of law that the infringement had not been willful and remanded for the district court to determine whether defendant’s misconduct warranted attorney’s fees. The district court held that it would not award fees. CAFC affirmed the denial of attorney’s fees to plaintiff.

  • Attorney’s Fees: The district court denied attorney’s fees after considering the “totality of the circumstances” under the Octane standard. There was no basis for concluding that the defendants maintained a weak litigation position or advanced meritless claims, as “the evidence was close,” and the litigation misconduct was “modest.” The Federal Circuit affirmed the denial of the attorney award reaffirming the new Octane standard and the standard of deferential review under Highmark.