This is the second post on the attorney-fee-case of Lumen View v. FindTheBest.com. The original post focused on the Federal Circuit’s holding that (1) the exceptional case finding was appropriate but (2) it was improper to double the awarded attorney fees for the purpose of added deterrence. In making its determination, the Federal Circuit looked to the Patent Act that authorizes only “reasonable attorney fees” to the prevailing party in an exceptional case.
In a one-sentence statement at the end of its vacatur, the Federal Circuit suggests that the district court might instead consider sanctions under Rule 11 of the Federal Rules of Civil Procedure. “Whether the court wishes to utilize Rule 11 or any other statutory framework is of course up to the district court.”
In Octane Fitness, the Supreme Court noted the partial overlap between Section 285 fees and R. 11 sanctions. Section 285 does not particularly require sanctionable conduct but does require that the recipient be the ‘prevailing party.’
Importantly for the discussion here, Rule 11 particularly authorizes sanctions designed “to deter repetition of the [sanctioned] conduct or comparable conduct by others similarly situated.” Here, the district court (supported by the Federal Circuit) has already found the complaint at least recklessly baseless and that may be enough to legally support a deterrence-based sanction. The court’s next move may be to issue an order to show-cause under R. 11(c)(3).