Octane is Out

The opinion is here, unanimous except Justice Scalia didn’t join three footnotes where the court relied upon legislative history and subsequent interpretations.  As predicted, it’s a totality of the circumstances test.  My post below pretty much nailed it, and, happily, they quoted Chief Judge Rader’s concurring opinion saying that the text mattered… hopefully the court will do the same thing with 101!  Ha.


The key passage:

District courts may determine whether a case is “exceptional” in the case-by-case exercise of their discretion,considering the totality of the circumstances. As in the comparable context of the Copyright Act, “‘[t]here is no precise rule or formula for making these determinations,’but instead equitable discretion should be exercised ‘in light of the considerations we have identified.’” Fogerty v. Fantasy, Inc., 510 U. S. 517, 534 (1994).

The related case, Highmark, held that review is for abuse of discretion, not de novo.  None of this is surprising.

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

8 thoughts on “Octane is Out

  1. 2

    David, do you think Congress will now attempt to remove discretion from the District Court given this Supreme Court decision? I think not, because I think that most members of Congress respect the Supreme Court.

    1. 2.1

      I dunno. I was told by a Hill staffer some time ago that they felt pressure to do something about “trolls.” So, even though 285 was one thing now fixed (remember my op ed with Chief saying 285 was flexible enough to do the job! Ha!), I wonder if they still want to do something. I would think that the new approach under 285 solves that problem.

      But from what I hear and see, they also think these pleading rules need to be implemented. I can’t see how that helps a whole lot — making people plead stuff will just turn pleadings in to long pleadings, or worse, rounds of long pleadings — and not cut to the chase.

      So, my answer to your question is: they’ll leave this alone but mess with some other stuff!

      1. 2.1.1

        (remember my op ed with Chief saying 285 was flexible enough to do the job! Ha!)

        I remember it – along with the advise to pay attention to the words used by Congress…


              Yup. I would love to compare CLS Bank’s opinion to Octane in terms of how much attention is paid to the statute. Chief’s concurrence, or whatever it is called, in CLS Bank really paid attention to the statute; Judge Lourie’s concurrence (or whatever) did not. Will be fun to see…

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