Andrew M. McCoy
Faegre Baker Daniels LLP
300 North Meridian Street, Suite 2700
Indianapolis, IN 46204
Section 285 of the Patent Act allows a prevailing party to recover attorneys’ fees in “exceptional” cases. . In Octane Fitness, LLC v. Icon Health & Fitness, Inc.,  and Highmark Inc. v. Allcare Health Management Systems, Inc.,  the Supreme Court relaxed the requirements for proving an “exceptional” case in three significant ways: (1) now a party who files a section 285 motion need only prove that a case is “exceptional” by a preponderance of the evidence;  (2) the movant no longer has to prove bad faith and objective baselessness,  but instead must prove that, under the “totality of the circumstances,”  the case “stands out from others,” considering numerous factors, such as “frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need . . . to advance considerations of compensation and deterrence;”  and (3) the appellate standard of review under section 285 is now a deferential abuse-of-discretion standard. .
Intellectual property litigators must be aware of these changes and also how various district courts are applying them. This article analyzes the dozens of cases that have applied Octane Fitness and Highmark, with a particular focus on district court opinions,  and identifies helpful trends and insights for patent litigators.
Lori M. Craig
J.D. Candidate, 2014, Indiana University Robert H. McKinney School of Law
B.A. 1997, Indiana University – Bloomington, Bloomington, Indiana.
“’For Christ’s sake, let me die in peace!’ he said.
. . .
‘You know perfectly well you can do nothing to help me, so leave me alone.’
‘We can ease your suffering,’ said the doctor.
‘You can’t even do that; leave me alone.’
. . .
He drew in a breath, broke off in the middle of it, stretched himself out, and died.” .
John P. Higgins, attorney
Indiana Supreme Court Disciplinary Commission
The Rules of Professional Conduct provide the baseline standards by which all lawyers must conduct themselves, both in their professional and (sometimes) personal lives. Violations of the Rules of Professional Conduct may serve as a basis for professional discipline, ranging anywhere from a private admonishment to permanent disbarment.
Dean and Paul E. Beam Professor of Law
Indiana University Robert H. McKinney School of Law
Lawrence W. Inlow Hall, Room 227H
530 W. New York Street
Indianapolis, IN 46202-3225
Faculty Profile Webpage
Thanks to the editors of the Indiana Law Review for inviting my comments. I applaud your efforts to expand the journal’s scope and reach.
This post marks a personal anniversary of sorts. I have been dean of our school for a year, and it would be impossible to describe the experience in a short essay. But as a renowned philosopher once said, “We do not learn from experience . . . we learn from reflecting on experience.” . So indulge me some brief reflections.
by Michele Lorbieski Anderson
Frost Brown Todd
201 North Illinois Street, Suite 1900
Indianapolis, IN 46244-0961
Attorney Profile Webpage
All of the social media sites and applications available today share one thing in common: the users provide the content. As such, social media can be a good source of electronically stored information (“ESI”) about those users, most commonly in the form of pictures, statements, or videos. The phrase “you can’t trust everything that you see on the internet” hints at the most obvious barriers to the admission of evidence from social media, which are authentication and hearsay.
September 23, 2014 Symposium (Click Here for additional information)
LIABILITY, RIGHTS AND REMEDIES IN TOXIC TORTS:
Local, National and International Responses in the Age of Globalization
This Conference will address local, national and international responses to Toxic Torts via robust presentations and discussions. The first panel, Toxic Torts Liability features four prominent speakers in the field. They will examine the latest development in torts law in the United States and abroad. The second panel, Environmental Justice Responses to Toxic Torts will focus on the various forms of responses from scholars and community organizations in addressing the impact of toxic torts. The third panel, Human Rights Responses to Toxic Torts will broaden the conference with discussion on various projects organized at various levels to address the international human rights dimension.