PTAB Success a Relevant Consideration Under 35 U.S.C. § 285

After Octane Fitness, district courts “may determine whether a case is ‘exceptional’ in the case-by-case exercise of their discretion, considering the totality of the circumstances,” looking at substantive strength of a party’s litigating position or the unreasonable manner in which the case was litigated.

As one recent decision makes clear, not only can a successful PTAB trial aid a litigation fee dispute, but the PTAB fees themselves may be recoverable.
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