“35 U.S.C. § 285 provides that a court ‘in exceptional cases may award reasonable attorney fees to the prevailing party.’ In Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014), this Court held that an exceptional case is ‘one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.’ This Court further held that ‘district courts may determine whether a case is “exceptional” in the case-by-case exercise of their discretion, considering the totality of the circumstances.’ Id. Applying Octane Fitness, in this case both the district court and Federal Circuit found this was an exceptional case based in part on the number of previous unrelated litigations filed by Petitioner without any analysis of those previous cases. The question presented is: Can a court consider factors unrelated to the instant case in determining whether a particular case is exceptional, i.e., whether those outside factors are relevant to the strength of a party’s litigating position in that particular case, or the manner in which that particular case was litigated?”
