The analysis from Glaser Weil noted that as of October 28 approximately 75 district court decisions had involved motions for fee awards since the Octane decision. Of these, about 18% of the motions were granted during this post-Octane period – with 50 denying, 13 granting (six by defendants and eight by plaintiffs), 10 granting in part (four by defendants and six by plaintiffs) and two still pending additional briefing.
"Interestingly, where the motion was granted or granted in part, the patent plaintiffs were the slight majority of successful movants."
The law firm noted it did not analyse pre-Octane statistics. “But 18% does not seem to indicate an overwhelming trend to awarding fees,” it said. “Interestingly, where the motion was granted or granted in part, the patent plaintiffs were the slight majority of successful movants. So, these numbers also do not seem to indicate an overwhelming shift within the grant rate towards defendants.”
Of the 13 decisions awarding fees, only three came on a post-Octane remand or reconsideration. In Kilopass Tech v Sidense, the district court awarded fees to the defendant after having previously denied the parties’ cross motions for fees. In Integrated Technology v Rudolph Technologies, after its previous finding of wilfulness was vacated on appeal, the district court still found grounds to award fees on remand under Octane to the plaintiff. In Medtrica Solutions v Cygnus Medical, the district court awarded fees to the plaintiff upon reconsideration after previously denying the motion. Two cases are pending additional briefing.
Glaser Weil noted this means Octane did not “unleash a flood of motions for reconsideration” and the indication is that pending fee motions were not affected.
"As much as Octane would make it easier for successful defendants, it also lowered the standard for successful plaintiffs, including NPEs, to get their fees awarded."
Noting the effect on NPEs, Glaser Weil said it is possible that some NPEs may have shelved “dubious” cases that they might have filed otherwise, noting the recent drop in litigation. “But the numbers do not overtly indicate a particular statistical disadvantage to patent plaintiffs, such as NPEs,” it said. “In fact, not surprisingly, the superficial indications are that the lowered standard can affect both sides of litigation. As much as Octane would make it easier for successful defendants, it also lowered the standard for successful plaintiffs, including NPEs, to get their fees awarded.”