Attorneys' fees in U.S. patent litigation usually fall on whoever paid them. The exception is 35 U.S.C. § 285, which lets a court award fees to the prevailing party in "exceptional cases." After Octane Fitness (2014), § 285 has become the most realistic path defendants have for recovering the cost of fighting a junk patent.
This is the procedural mechanics piece — when § 285 bites, how to motion for it, and what defendants actually recover.
The statute
35 U.S.C. § 285 in full:
The court in exceptional cases may award reasonable attorney fees to the prevailing party.
Two requirements:
- Prevailing party. The party that achieved a material change in the parties' legal relationship — typically the winner on the merits.
- Exceptional case. Per Octane Fitness, a case that "stands out from others" with respect to substantive strength or litigation conduct.
A "totality of the circumstances" test. District-court discretion. Reviewed on appeal under abuse-of-discretion (per Highmark v. Allcare).
When the courts find exceptionality
Most successful § 285 motions cite some combination of:
- Knowingly weak patent. Plaintiff brought claims they knew (or should have known) wouldn't survive § 102 or § 103 scrutiny.
- Litigation misconduct. Discovery abuse, frivolous motions, repeated venue games, false statements to the court.
- Unreasonable claim positions. Construction arguments contradicted by the patent's own specification or prosecution history.
- Pattern of abuse. Plaintiff has filed the same playbook against many other defendants and dropped at the first sign of resistance. (Browse our database by plaintiff to spot serial filers — pattern evidence for your fee-shift motion.)
- Failure to investigate before suing. Plaintiff never compared the accused product to the asserted claims pre-suit; obvious non-infringement.
What the courts have not generally found exceptional, on its own:
- An NPE plaintiff. Being a non-practicing entity isn't itself exceptional.
- A losing case. Losing isn't enough; the loss has to stand out.
- Aggressive but lawful tactics. Hard-nosed litigation doesn't shift fees absent something more.
The bar is real, even post-Octane. Most prevailing defendants who motion for § 285 fees lose those motions. The ones who win usually have a clear misconduct narrative, a pattern of bad-faith assertion, or a patent so plainly invalid that bringing it was unreasonable.
How to motion for fees
Procedurally:
- Win first. § 285 awards go to the prevailing party. Settlement usually doesn't qualify (some exceptions). Successful IPRs followed by district-court dismissal usually do.
- File timely. Most courts require a motion within 14-30 days of judgment, depending on local rules.
- Document the case. A § 285 motion succeeds when supported by evidence of the plaintiff's conduct — admissions, deposition testimony, prior cases, expert opinions on the patent's strength.
- Calculate the lodestar. Detailed billing records showing hours × hourly rates × tasks. Fees must be "reasonable" — courts cut block-billed entries, exorbitant rates, and excessive staffing.
The motion itself runs 25-50 pages with exhibits. A determined patentee will fight every entry on the lodestar. Plan for 6-12 months of supplemental briefing.
What you can recover
A successful § 285 motion typically recovers:
- Attorneys' fees. Reasonable hours × reasonable rates. The lodestar.
- Expert witness fees. Often, by extension of the same statute or under § 1927.
- Costs. Filing fees, deposition costs, e-discovery vendors. Usually recovered separately under Rule 54(d).
What you don't recover:
- In-house counsel time. Generally not recoverable.
- Internal employee time. Engineering, executives, etc. — not recoverable.
- Pre-suit costs. Usually limited to litigation-period work.
Post-Lumen View (Fed. Cir. 2016), courts can no longer enhance the lodestar simply to "deter misconduct." The fee award is meant to compensate the prevailing party, not punish the loser. The deterrent effect comes from getting back what you spent — that, by itself, can wreck a troll's economic model.
Strategic use during litigation
§ 285 isn't just a post-judgment tool. The threat of § 285 is itself a litigation lever:
- In pre-suit correspondence. Mention § 285 if the patent is plainly junk. Some plaintiffs back down to avoid the risk. (What to do when a demand letter arrives covers the broader playbook.)
- In settlement negotiations. A weakening case + a credible fee-shift motion shifts settlement leverage in the defendant's favor.
- In meet-and-confer. Putting the plaintiff's misconduct on the record builds a § 285 paper trail you'll cite later.
What it costs to motion
A § 285 motion isn't free. Realistic costs to brief and litigate the motion: $100,000-$300,000. The math only works if the underlying litigation cost was significant — typically $500,000+. For early-dismissed cases, the upside may not justify the motion cost.
This is why § 285 disproportionately benefits defendants who fought through to summary judgment or trial. (See where SJ falls in the litigation lifecycle.) Cases dismissed in 90 days don't generate fee-shift motions.
What's recovered, in practice
Recent fee awards under Octane range from low six figures to several million dollars. The 2014 Lumen View v. FindTheBest award against the holder of US Patent 8,069,073 originally set a lodestar of about $148,000 and doubled it as a deterrent (later trimmed by the Federal Circuit to lodestar only). Larger pharmaceutical and tech-company defendants have recovered awards in the $5M-$15M range against truly egregious plaintiff conduct.
What's still hard
Even a successful fee-shift award can be uncollectible. Many NPEs are shell LLCs with no assets. The statute provides for recovery against the named plaintiff; if the named plaintiff is a P.O. box, there's nothing to collect. Alter-ego theories sometimes pierce the shell — going after the parent or funder — but they're litigation in their own right.
Recent reforms have tried to make funding and assignment chains more transparent (Western District of Texas standing orders, proposed amendments to the Federal Rules). The trajectory is toward more visibility, but not yet routine recovery.
Bottom line
§ 285 isn't a guaranteed remedy. It's a high-effort, high-evidence tool that pays off occasionally and dramatically. For defendants who win clear merits cases against plaintiffs with documented bad-faith conduct, § 285 can transform the economics — turning a $3M defense expense into a $3M plaintiff bill. The credible threat of fee-shift is one of the only structural deterrents to abusive patent assertion.
Read the cases: Octane Fitness v. ICON Health, 572 U.S. 545 (2014), Highmark Inc. v. Allcare Health Management System, 572 U.S. 559 (2014).
This article is for general education and is not legal advice.