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19 Stan. Tech. L. Rev. 329 (2015-2016)
Octane Fitness: The Shifting of Patent Attorneys' Fees Moves into High Gear

handle is hein.journals/stantlr19 and id is 345 raw text is: OCTANE FITNESS: THE SHIFTING OF PATENT ATTORNEYS' FEES MOVES INTO HIGH GEAR Scott M. Flanz *'* CITE AS: 19 STAN. TECH. L. REV. 329 (2016) In 2014, the United States Supreme Court decided Octane Fitness. LLC v. ICON Health & Fitness, LLC, significantly altering the standard for granting attorneys'fees shifting at the close of a patent litigation. Combine with precedent announced on the same day in Highmark Inc. v. Allcare Health Management Systems, scholars have opined that under the new regime, the standard for proving entitlement to attorneys'fees in patent litigations will be considerably relaxed. Despite the widespread acceptance of the viewpoint, few empirical analyses-if any-have objectively confirmed it. This paper provides a first glimpse into whether the Supreme Court's decision in Octane changed the attorneys'fees standard in practice. By investigating the rate at which courts have granted attorneys'fees motions before and after Octane, broken down by whether the movant was a patentee or accused infringer, the technology of the patent asserted, the circuit and district where the suit was decided, and what factors were considered by each court in its opinion, this research confirms that Octane's reinterpretation of §285 has had observable effects. In particular, this study finds a statistically significant increase in the rate of attorneys'fee shifting after Octane, particularly for motions filed by accused infringers and in motions concerning electronics and software patents. The results of this study shed light on meaningful and recent changes to the patent litigation incentive structure and will be helpful in predicting future changes to the patent litigation landscape. I Mr. Flanz is an associate at Skadden, Arps, Slate, Meacher & Flom in New York. The views expressed in the article are his own and not necessarily the views of Skadden, Arps or any one or more of its clients. I Stanford Law School I I.D. 2015; Cornell University: College of Arts & Sciences Mathematics & Physics I A.B. 2012. Mr. Flanz would like to thank Professor Mark A. Lemley for his guidance and suggestions in crafting this paper from its inception to its publication. Mr. Flanz would also like to thank his parents Jacob and Nancy Flanz for their support and comments throughout the writing process. 329

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