A great guest post by Hannah Jiam, a 3L at Berkeley Law, on Patently-O came up on my RSS feeds today, which shows some really interesting trends regarding fee shifting under Octane Fitness. Here's my main takeaways from Ms. Jiam's article:
- The Eastern District of Texas really doesn't like fee shifting. This is not surprising.
The famous rocket docket has also been reluctant to issue punitive sanctions, for example in the infamous Raylon case wherein Plaintiff's counsel avoided sanctions for proposing a claim construction that equated the patent claim term-of-art "said" as equivalent to "any". For those of you who don't know much about patent claims, "said X" is what we call a "reference to the antecedent"- basically a placeholder for a fully-described X that appeared before. Read more at MPEP 2173.05(e).
- The District of Delaware does deny some motions, but also approves the largest fee awards. For example, the $5M fee came from Bayer CropScience v. Dow AgroSciences, a $1.39M award was granted in Summit Data v. EMC, both of which alone are higher than the total amounts granted in any other court.
This is also as expected. While the number of cases on Delaware's docket is smaller than E.D. Tex., they tend to be higher-stakes cases involving large, publicly-traded corporations and their subsidiaries; as you do in Delaware.
Finally, here's a neat summary of the grand total in fees from Ms. Jiam's Appendix, sorted by amount. For more information, download her article from SSRN here: