by Dennis Crouch
DISH Network is seeking en banc review of a Federal Circuit panel decision that vacated a $3.9 million attorney fee award to the victorious defendant in Realtime Adaptive Streaming L.L.C. v. Sling TV, L.L.C., 113 F.4th 1348 (Fed. Cir. 2024). The petition challenges the panel's approach to reviewing district court fee determinations under 35 U.S.C. § 285, arguing that it contradicts Supreme Court precedent of both Octane Fitness and Highmark, which provided district courts with substantial autonomy in determining whether to award attorney fees.
The case stems from Realtime's assertion of patents related to digital data compression against DISH. After protracted litigation including inter partes review proceedings and multiple stays, the District of Colorado ultimately found Realtime's asserted claims from U.S. Patent No. 8,867,610 patent ineligible under 35 U.S.C. § 101. The district court judge, R. Brooke Jackson, then deemed the case "exceptional" under § 285 and awarded DISH $3.9 million in attorney fees.
- Petition for En Banc Rehearing
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Dennis Crouch, Red Flags Waved Off: Federal Circuit Rejects Overzealous Fee Award against Patentee, PATENTLY-O (Aug. 25, 2024).
After talking through the en banc petition, this post spends some time focusing in on another recent fee award - this one a $9 million award against Dartmouth College and its exclusive licensee ChromaDex.
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