In Oplus Technologies, Ltd. v. Vizio, [2014-1297] (April 10, 2015), the Federal Circuit vacated and remanded the district court’s decision not to award attorneys’ and expert witness fees under 35 U.S.C. §285 and 28 U.S.C. §1927.  The Federal noted that since the district court issued its opinion, the Supreme Court’s Octane decision lowered Circuit  “considerably” the standard for awarding fees, and thus the it was appropriate to vacate and remand this case in order for the district court to reconsider the propriety of awarding fees.

The Federal Circuit found that the district court opinion details an egregious pattern of misconduct, and that even Oplus’s counsel agreed that the misconduct was quite severe.   The Federal Circuit said that although an award of fees is within the discretion of the district court, nothing in the opinion or in the record substantiates the court’s decision not to award fees. Given that the district court found counsel’s behavior “inappropriate,” “unprofessional,” “vexatious,” and “harassing,” it is difficult to imagine how defendant had not incurred additional expenses defending against such filings.