The Supreme Court recently relaxed the standard for attorney's fees under Section 285 in Octane Fitness, LLC v. Icon Health & Fitness, Inc., 134 S. Ct. 1749 (2014), and Judge Timothy Dyk — sitting by designation in the Eastern District of Texas — held that even under the relaxed standards of Octane Fitness, Intel was not entitled to recover its attorney’s fees.
Describing Intel's motion as one “primarily based on the fact that Stragent made losing arguments,” Judge Dyk clarified that Stragent’s arguments “were losing arguments, but they were not frivolous.” Of particular concern to Judge Dyk was Intel’s inaction in failing to move for summary judgment of noninfringement on the basis of the claim limitation at issue. Because Intel’s motion for fees was based partly on its criticism of Stragent’s "implausible" theory of infringement, Judge Dyk doubted Intel always believed Stragent’s theory was frivolous when it never moved for summary judgment. Judge Dyk also questioned Intel’s complaints of bad faith discovery when it, “never sought discovery sanctions against Stragent or even a court ruling limiting the scope of discovery.”
Quoting Octane Fitness, Judge Dyk concluded that the case was not exceptional and noted, “this case is not one that ‘stands out from others with respect to the substantive strength of [Stragent’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, 134 S. Ct. at 1756.”
Stragent, LLC v. Intel Corp., No. 6:11cv00421 (E.D. Tex. August 6, 2014,. Order) (Dyk, T.B.).