Attorneys' fees under § 285
Section 285 authorizes a district court to award attorneys' fees to the prevailing party in exceptional cases. Octane Fitness replaced the old Brooks Furniture standard with a flexible totality-of-the-circumstances inquiry, lowered the burden of proof to a preponderance, and committed the analysis to the discretion of the trial court. Highmark, decided the same day, made appellate review deferential.
The rule
"The court in exceptional cases may award reasonable attorney fees to the prevailing party." 35 U.S.C. § 285. An exceptional case is "simply 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." Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 554 (2014). Either weakness on the merits or unreasonable conduct will do; both together is common.
Statutory and constitutional source
Section 285 was enacted in 1952 as a successor to a 1946 fee-shifting provision. Until 2014, the Federal Circuit had read the statute through the lens of Brooks Furniture Mfg., Inc. v. Dutailier Int'l, Inc., 393 F.3d 1378 (Fed. Cir. 2005). Brooks required the patentee to show by clear and convincing evidence either (i) "material inappropriate conduct related to the matter in litigation" or (ii) that the litigation was both "brought in subjective bad faith" and "objectively baseless." Octane Fitness held the Brooks framework "overly rigid" and "unduly inflexible" and rejected each of its principal limitations. 572 U.S. at 553–58.
The American Rule against fee-shifting governs absent a statutory exception. Section 285 is one such exception. The constitutional foundation is the Patent and Copyright Clause, Article I, § 8, cl. 8: Congress's authority to regulate the patent right includes the authority to provide remedies for its abuse. See Title 35 reference.
The framework the courts apply
Octane Fitness and totality of the circumstances
Octane Fitness set the test now applied in every § 285 motion. The Court held that:
- "Exceptional" carries its ordinary meaning of "uncommon, rare, or not ordinary" and does not require sanctionable conduct or a showing of subjective bad faith plus objective baselessness. 572 U.S. at 554.
- District courts should apply a "totality of the circumstances" inquiry, considering both substantive litigating positions and the manner of litigation. 572 U.S. at 554.
- The court may consider any factor that bears on the case's exceptionality, including (non-exclusively) "frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence." 572 U.S. at 554 n.6 (drawing on Copyright Act fee-shifting cases).
Highmark and abuse-of-discretion review
Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 572 U.S. 559 (2014), companion to Octane, held that an exceptional-case determination is committed to the sound discretion of the district court and is reviewed on appeal for abuse of discretion. The earlier Federal Circuit practice of reviewing the objective-baselessness prong of Brooks de novo no longer applies. The shift is significant in practice: post-Highmark, the Federal Circuit affirms district court rulings on § 285 in the great majority of appeals.
Substantive weakness
A case may be exceptional because the losing party's litigating position is unusually weak — for example, where:
- The asserted claims are clearly invalid under the controlling decisions, particularly under § 101 after Alice Corp. v. CLS Bank Int'l, 573 U.S. 208 (2014). See Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372 (Fed. Cir. 2017).
- The patentee continues to litigate after a Markman ruling that plainly forecloses infringement. Eon-Net LP v. Flagstar Bancorp, 653 F.3d 1314 (Fed. Cir. 2011).
- The infringement theory rests on a claim construction at war with the prosecution history.
Unreasonable manner of litigation
A case may also be exceptional because of the manner in which it was litigated, even where the substantive position is not frivolous:
- Misrepresentations to the court, abusive discovery practices, or repeated noncompliance with court orders. Monolithic Power Sys., Inc. v. O2 Micro Int'l Ltd., 726 F.3d 1359 (Fed. Cir. 2013) (pre-Octane; cited post-Octane).
- Filing serial suits, shifting infringement theories late in the case, or maintaining a position contradicted by the patentee's own contemporaneous documents.
- Coverage-driven settlement campaigns that demand sums below the cost of defense and abandon cases when defendants resist.
Inequitable conduct as exceptional
A finding of inequitable conduct in patent prosecution typically supports a finding of exceptional case under § 285. Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276 (Fed. Cir. 2011) (en banc), tightened the standard for inequitable conduct itself, but where the defense succeeds, fee-shifting frequently follows. The exceptional-case finding does not require independent proof of bad faith beyond what supported the inequitable-conduct holding.
Considerations involving NPEs
The patent assertion behavior of non-practicing entities ("NPEs" or, pejoratively, "patent trolls") has been the principal factual context for § 285 awards in the lower courts. Courts have identified recurrent NPE patterns: nuisance-value settlement demands, refusal to disclose infringement contentions until late, dismissal in the face of dispositive motion practice, and suing on patents the asserter knows have been narrowed by IPR or claim construction in earlier cases. None of these patterns alone is dispositive. But where they accumulate against a particular plaintiff, they will support exceptionality. SFA Sys., LLC v. Newegg Inc., 793 F.3d 1344 (Fed. Cir. 2015) (declining to require a "pattern of vexatious litigation" as a precondition).
Burden and proof
The party seeking fees must prove exceptionality by a preponderance of the evidence. Octane Fitness, 572 U.S. at 557–58 (rejecting the Brooks clear-and-convincing standard). The court's exceptionality determination is reviewed for abuse of discretion. Highmark, 572 U.S. at 564.
The amount of fees is reviewed for abuse of discretion. The court applies the lodestar method: hours reasonably expended multiplied by reasonable hourly rates. Lumen View Tech. LLC v. Findthebest.com, Inc., 811 F.3d 479 (Fed. Cir. 2016). Some courts also award expert fees as part of the § 285 award; others limit § 285 to attorney time and require parties to seek expert costs under Rule 54(d) or other authority.
Section 285 provides for fees in favor of the "prevailing party," whether plaintiff or defendant. A defendant who succeeds on summary judgment of non-infringement, who obtains a judgment of invalidity, or who obtains a judgment after trial may move under § 285. A plaintiff that prevails on liability may also recover. The statute does not require the moving party to be wholly victorious — partial success suffices. SSL Servs., LLC v. Citrix Sys., Inc., 769 F.3d 1073 (Fed. Cir. 2014).
Interaction with related doctrines
Section 285 is conceptually independent of willfulness under § 284 and operates on the manner of litigation as much as on infringement conduct. The two often appear together: a finding of willful infringement frequently supports an exceptional-case finding, and a finding of inequitable conduct nearly always does. They are not, however, equivalent. The Supreme Court drew the parallel itself in Halo. Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. 93, 110 (2016).
Other fee authorities remain available. Federal Rule of Civil Procedure 11 sanctions, 28 U.S.C. § 1927 vexatious-litigation fees, and the court's inherent power may also support fee awards, sometimes against attorneys personally. Phigenix, Inc. v. Genentech, Inc. and other cases recognize parallel or alternative authorities. Section 285 itself is limited to fees against parties.
Section 285 interacts with § 101 dismissals (where Alice-flagged claims are pursued), claim construction (post-Markman maintenance of foreclosed positions), and IPR outcomes (continuing assertion of claims that survived only narrowly or have been amended).
Practical notes
Timing and procedure
A § 285 motion is filed under Federal Rule of Civil Procedure 54(d)(2), which sets a 14-day deadline (running from entry of judgment) absent local-rule extension. Many districts have local rules expanding that period. The motion is typically deferred until appeal completion in some districts; in others the trial court rules promptly and the appeal of the merits and the fee award proceeds together.
Building a § 285 record during the case
Defendants who anticipate a § 285 motion should:
- Send Rule 11 letters or pre-motion letters that document weaknesses in the plaintiff's positions.
- Memorialize the plaintiff's contention shifts in interrogatory responses and infringement contentions.
- Track the points at which the plaintiff received unfavorable evidence (claim construction order, deposition admissions, internal documents) and continued to press its case.
- Preserve the plaintiff's litigation conduct in the record — discovery disputes, sanction motions, and any noncompliance with court orders.
Calculating fees
Fee submissions ordinarily include detailed time records, attorney biographies supporting hourly rates, and comparable-rate evidence from local markets. Courts apply a reasonableness lens: excessive staffing, block billing, and clerical work are commonly reduced. Fees are recoverable for the entire case as litigated unreasonably or, where exceptionality is more localized, only for the unreasonable portion. Therasense, Inc. v. Becton, Dickinson & Co., 745 F.3d 513 (Fed. Cir. 2014) (causation in fee award).
Variation across districts
Patterns vary across districts. The District of Delaware and the Northern District of California grant § 285 motions at moderate rates. The Eastern District of Texas, despite its dense patent docket, has historically issued few § 285 awards, although that pattern has shifted in recent years. The Western District of Texas has begun developing its own post-trial fee jurisprudence.
Joint and several liability; counsel sanctions
Section 285 fees are imposed against parties, not their counsel. Sanctions against counsel personally proceed under Rule 11, § 1927, or inherent authority and require independent showings.
Open questions
- Recovery against counsel. The Federal Circuit has confirmed that § 285 does not authorize fees against counsel, but the practical interaction between § 285 and § 1927 (and inherent authority) continues to evolve.
- Standalone "manner of litigation" awards. Where the substantive case is colorable, fees turn on whether the manner of litigation alone is "exceptional." Courts continue to refine the threshold below which discovery abuse, contention shifting, or aggressive settlement tactics cross into exceptionality.
- Effect of subsequent PTAB outcomes. Whether and how a post-judgment IPR cancellation of the asserted claims affects a pending § 285 motion is unsettled. See IPR estoppel.
- Fees in declaratory-judgment actions. Whether the prevailing accused infringer can recover fees for litigation conduct that occurred before the formal complaint, but during pre-suit posturing, is an emerging issue.
See also
- Willfulness and enhanced damagesSection 284 enhancement, the conceptual cousin to § 285 fees.
- Inequitable conductA defense whose success ordinarily supports exceptional-case findings.
- Section 101 patentable subject matterA common substantive vulnerability that drives § 285 motions.
- Octane Fitness v. ICONThe 2014 totality-of-the-circumstances decision.
- Halo v. PulseThe companion decision under § 284, applying parallel reasoning.
- Alice v. CLS BankThe § 101 decision that has driven many post-Octane fee awards.
Last reviewed: 2026