In Octane Fitness, LLC v. Icon Health & Fitness, Inc.,1 the Supreme Court overturned the Federal Circuit's existing standard for awarding attorney fees under 35 U.S.C. § 285 and announced a new standard. Providing increased discretion to district courts in conducting the analysis, the Supreme Court held that: An ''exceptional'' case is simply one that stands out from others with respect to the substantive strength of a 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. District courts may determine whether a case is ''exceptional'' in the case-by-case exercise of their discretion, considering the totality of the circumstances. 2

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Originally published in BNA's Patent, Trademark & Copyright Journal, 12/12/14

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