OPlus vs. Vizio at the CAFC: 35 USC 285 and fees

Relevant to current discussion about "loser pays", the CAFC vacated and remanded a decision NOT to award fees.

Link: http://www.cafc.uscourts.gov/images/stories/opinions-orders/14-1297.Opinion.4-8-2015.1.PDF

Outcome: Vizio, Inc. appeals from the district court’s denial of
attorneys’ and expert witness fees
under 35 U.S.C. § 285, 28 U.S.C. § 1927, and the court’s
inherent power. We hold that
the district court abused its discretion in denying fees, and thus
vacate and remand.


As to law firms:


Here, counsel for Oplus, Niro,Haller & Niro,
drafted what it called a tailored subpoena for documents
retained by counsel for the earlier plaintiff,
which also happened to be Niro, Haller & Niro. Id.
The court concluded that it “strain[ed] credulity”
to believe that Oplus
“issued the subpoena without using any knowledge by
three attorneys [that both
worked on the earlier case and
the present case] as to the content of the discovery
sought.” Id. at 12–13. The court found that “Oplus
blatantly misinterpreted its own prior discovery requests
in an attempt to obtain the same information the Court
had previously refused to compel.” Id. at 13.



What the CAFC found problematic:


The district court found the case exceptional under 35
U.S.C. § 285 and that Oplus and its counsel were vexa-
tious litigants and engaged in litigation misconduct.
Id. at 10 – 15 . Despite its specific findings regarding Oplus’s
conduct and its ultimate finding that the case was excep-
tional, the court denied Vizio’s request for fees. Id. at 16–18.



Of relevant law:


We review all aspects of a district court’s determina-
tion under 35 U.S.C. § 285 for abuse of discretion.
Highmark Inc. v. Allcare Health Mgmt. Sys., Inc. , 134 S. Ct.
1744, 1749 (2014).

(...)

Since the district court issued its
opinion, the Supreme Court rejected this
requirement, holding that “nothing in § 285 justifies such a high stand-
ard of proof .”
Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1755, 1758 (2014).
This change in the law lowers considerably the standard for
awarding fees.