Welcome to Skilled in the Art. I’m Law.com IP reporter Scott Graham. It’s been nearly five years since the Supreme Court set a new standard for fee-shifting in “exceptional” patent cases. Octane Fitness instructs district judges to consider the totality of the circumstances when deciding exceptionality. A case before the Federal Circuit last week poses the question, what if an infringer wins most of its case at the PTAB, but the fee award was designed in part to punish litigation misconduct at trial? From the arguments—which I’ll describe below—it sounds like a close question. As always you can email me your thoughts and feedback and follow me on Twitter.
