More Therasense at the CAFC

The summary for  Therasense v. Becton, Dickinson

For the foregoing reasons, the district court’s decision to reinstate its award of attorney’s fees under § 285 and to deny Becton and Nova’s motion for piecemeal fees beyond the original award amount is affirmed.

Kafka is alluded to:

Becton and Nova also argue that Abbott forced them to incur additional legal expenses on appeal and remand before paying the fees owed through trial. Citing to Mathis, Becton and Nova claim that Abbott owes fees and expenses for pursuing these additional fees, and any fees for the appeal regarding fees. 857 F.2d at 756 (awarding attorney’s fees expressly for the preparation of the fee submission). But see Jean, 496 U.S. at 163 (noting that such “fees for fee litigation should be excluded to the extent that the applicant ultimately fails to prevail in such litigation” and that such exceptions to fee litigation “theoretically can spawn a ‘Kafkaesque judicial nightmare’ of infinite litigation to recover fees for the last round of litigation over fees”) (citing Hensley, 461 U.S. at 437 (explaining that a request for attorney’s fees should not result in a second major litigation)).

Regardless, a district court may exercise broad discretion in awarding fees and setting the amounts of fees. See Kilopass, 738 F.3d at 1312; Mathis, 857 F.2d at 754. In this case, the district court specifically declined to find the appeal exceptional within the meaning of § 285 because the appeal itself was not frivolous and Becton and Nova presented no evidence of bad faith.