Chief Judge Gregory M. Sleet recently reaffirmed the notion that fervid advocacy on behalf of a client cannot alone justify a Section 285 fee award. As part of the Court’s post-trial findings on invalidity, the Court rejected a concomitant fee request, noting that awards of attorneys’ fees under the statute are “not intended to be an ordinary thing in patent cases.”
The Court continued that “hard-fought” litigation is distinct from vexatious or bad-faith conduct:
“Mylan’s conduct in this case does not rise to a level of bad faith or vexatious litigation that warrants an award of attorneys’ fees and costs. Indeed, the record demonstrates that throughout this litigation, both sides vigorously, and in apparent good faith, defended their respective positions.”
The line between aggressive advocacy and incivility is difficult to draw. Nonetheless, litigators must consciously fix this boundary in each case. By refusing to assign blame in a contentious, but fair, litigation process, the Court has given the litigator comfort that fee-shifting is reserved for egregious tactics, not zealous advocacy.
See also the Court’s post-trial findings on infringement here.