Inter partes review ("IPR") proceedings often arise in
the context of high-stakes patent infringement litigation, and
district courts frequently stay litigation pending parallel IPRs,
which may fully resolve a patent-in-suit's validity.
Accordingly, district courts are starting to recognize deeper
nuances of how IPRs impact co-pending litigation, not only with
respect to substantive validity issues, but also the way parties
have litigated their claims, including whether a losing party's
conduct in IPR can support an "exceptional case" finding
under 35 U.S.C. § 285 to support an award of attorney
fees.
In American Vehicular Sciences, LLC
v. Autoliv ASP, Inc., a magistrate judge held a prevailing
party can seek attorney fees under § 285, if it establishes
that the losing party's conduct in an IPR is
"exceptional." No. 5:16-cv-11529, Dkt. 57 (E.D. Mich.
Aug. 30, 2019). Generally, courts "award[] attorneys' fees
associated with PTO proceedings either [1] where there was
