A Federal Circuit panel drew attention last week during oral argument in a patent dispute brought by Epic Tech LLC. (Epic Tech LLC is unrelated to Epic Games, the video game developer.) During the hearing, one judge reportedly described the asserted patent as “very bad” and remarked that, had they been the district court judge, they “100% would have granted the attorney’s fees” after the defendant prevailed. Although comments made during oral argument do not necessarily predict how the court will rule, they highlight an issue that continues to shape patent litigation: when should an unsuccessful infringement suit be considered “exceptional” enough to justify shifting attorney’s fees?
Under 35 U.S.C. § 285, courts may award attorney’s fees in exceptional patent cases. Since the Supreme Court’s decision in Octane Fitness, district courts have broad discretion to determine whether a case stands out because of the weakness of a party’s legal position or the manner in which the case was litigated. Even so, fee awards remain the exception rather than the rule.
The oral argument in the Epic Tech appeal serves as a reminder that patent owners should carefully evaluate the strength of their patents before initiating litigation. This is particularly true in software-related industries, where questions surrounding patent eligibility, prior art, and claim scope can quickly become central to a case. Defendants also have access to increasingly sophisticated patent analytics and AI-assisted search tools that can expose weaknesses in an asserted patent long before trial.
The Federal Circuit has not yet issued its decision, and the panel’s questions alone should not be viewed as a forecast of the outcome. Nevertheless, the discussion underscores the growing expectation that patent owners conduct a thorough assessment of both infringement and validity before filing suit. Regardless of how the appeal is resolved, the case is another reminder that the quality of a patent—and the reasonableness of the decision to assert it—can have significant consequences beyond the merits of the infringement claim itself.
