Courts Adhering to Objective Frivolousness Despite Octane… and They Should

I did a canvas of post-Octane 285 cases a while back, and found it curious that district courts were continuing to evaluate fee shifting based, in part, on whether the arguments made by the loser had been “objectively frivolous.”  That, of course, is not required to shift fees post-Octane.

But perhaps it should be; or, to put it a different way:  courts should interpret 285 in light of Rule 11.

Here’s why.

To the extent that a gap develops between Rule 11’s requirements on lawyers — pursue arguments so long as non-frivolous, to summarize it bluntly — lawyers who represent their clients within the bounds of Rule 11 can have their clients pay fees under 285.  This will dampen lawyer zeal.

So, while perhaps statutory interpretation principles show Octane was right in rejecting the Brooks Furniture approach, determining what an exceptional case is should, nonetheless, have some mooring to Rule 11.

The Federal Circuit seems to be following the district court’s lead in applying the pre-Octane standard under the guise of Octane.  A recent case is Gaymar Indus. Inc. v. Cincinnati Sub-Zero Products, Inc., (Fed. Cir. June 25, 2015).

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.

2 thoughts on “Courts Adhering to Objective Frivolousness Despite Octane… and They Should

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    OT, but interested in your take on the main thread regarding somehow taking the words of the statute as “hyper” textual all the while the Court is implicitly (and in the recent case of Alice, explicitly) making up new words not even in the statute…

    Didn’t Randell have a phrase that fits here?

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