18% of post-Octane motions for fee awards granted

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

18% of post-Octane motions for fee awards granted

Six months on from the US Supreme Court’s Octane decision, about 18% of motions for fee awards have been granted according to an analysis by Glaser Weil

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.”

more from across site and SHARED ros bottom lb

More from across our site

Attorneys explain why there are early signs that the US Supreme Court could rule in favour of ISP Cox in a copyright dispute
A swathe of UPC-related hires suggests firms are taking the forum seriously, as questions over the transitional stage begin
A win for Nintendo in China and King & Spalding hiring a prominent patent litigator were also among the top talking points
Rebecca Newman at Addleshaw Goddard, who live-reported on the seminal dispute, unpicks the trials and tribulations of the case and considers its impact
Attorneys predict how Lululemon’s trade dress and design patent suit against Costco could play out
Lawyers at Linklaters analyse some of the key UPC trends so far, and look ahead to life beyond the transition period
David Rodrigues, who previously worked at an IP boutique, said he may become more involved in transactional work at his new firm
Indian smartphone maker Lava must pay $2.3 million as a security deposit for past sales, as its dispute with Dolby over audio coding SEPs plays out
Powell Gilbert’s opening in Düsseldorf, complete with a new partner hire, continues this summer’s trend of UPC-related lateral movement
IP leaders at Brandsmiths and Bird & Bird, who were on opposing sides at the UK Supreme Court in Iconix v Dream Pairs, unpick the landmark case and its ramifications
Gift this article