Calypso Wireless (fka CLYW)

[Cougar6]

"The patent statute states that the court in exceptional cases, may award reasonable attorney fees to the prevailing party. As a general rule, attorneys fees may be justified by any valid basis for awarding enhanced damages. However, conduct which a court may deem “exceptional” and a basis for awarding attorneys fees may not qualify for an award of enhanced damages. Similarly, where damages are enhanced a district court may decline to award attorneys fees.

Whether attorneys fees should be awarded requires a two-step inquiry. First, the district court must decide whether there is clear and convincing evidence that the case is exceptional. Second, the court must decide whether to award attorney fees to the prevailing party.

Even exceptional cases do not always mandate an award of attorney fees in all circumstances. The United States Court of Appeals for the Federal Circuit has acknowledged that there are many factors which can impact upon a decision regarding whether an award of attorney fees is warranted in a particular case. The types of conduct that could support a showing of exceptional circumstances resulting in the award of attorneys fees include, but are not limited to, willful infringement, inequitable conduct before the Patent and Trademark Office, litigation misconduct, and vexatious or unjustified litigation or frivolous suit.

Obtaining attorneys fees in any patent litigation is rare. Furthermore, in order to obtain attorneys fees it is necessary to litigate the matter to a conclusion. Given the increased role of alternative dispute resolution in patent litigation the percentage of cases that are fully litigated to a conclusion is continuously dropping."

http://www.ipwatchdog.com/patent/advanced-patent/patent-infringement-damages/