My RA found a non-prec case from the CAFC where the district court found a case exceptional under 285 and imposed those fees on counsel, jointly and severally with its client. (It also imposed fees on counsel under 1927.) The panel affirmed the exceptional case finding, but reversed the imposition on counsel, but in doing so, made it clear that it might be an open question:
In addition, we vacate the district court’s holding of joint and several liability by Phonometrics and its counsel for the aggregate award of fees and costs. Section 285 is a fee shifting statute that in exceptional cases may require the losing party to reimburse the prevailing party its attorney fees. Sheraton has provided us with no legal basis for entering a fee award against the losing party’s attorney under § 285. Section 1927, on the other hand, is limited to an award of fees against an attorney. Sheraton has provided us with no legal basis for holding the attorney’s client liable for fees under § 1927. Thus, Phonometrics is not liable for fees awarded under § 1927; it can only be liable for fees awarded under § 285. Counsel for Phonometrics is not liable for fees awarded under § 285; it can only be liable for excess fees awarded under § 1927.
Phonometrics, Inc. v. ITT Sheraton Corp., 64 Fed. Appx. 219 (Fed. Cir. June 12, 2003).
The panel read 285 in pari materia with 1927, reasoning that because one shifted fees onto counsel, the other could not. I’m not so sure that makes sense…. I know 285 came into being, in an earlier form, only in 1946….
I wonder if there is any legislative history?
Further, if the purpose of 285 is to “punish” bad patent suits, how often, back in 1946, was the client the one responsible for that? Interesting story to unfold….