Section 285 Of Patent Act Cannot Be Used To Obtain Attorney’s Fees From Opposing Counsel

So holds the district court (C.D. Cal.) in Cap Export v. Zinus (available here). As I previously noted, courts have used Section 285 of the Patent Act—which provides that “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party”—to allow successful defendants to seek attorney’s fees against the plaintiff’s owners. In Cap Export, the prevailing party sought an award of fees against its opponent’s attorneys. The court rejected this request, noting that it could not find any authority supporting the proposition that an opposing party’s attorneys could be liable under Section 285. This is undoubtedly the correct result, especially where multiple other avenues exist to obtain fees from opposing counsel (e.g., Rule 11, 28 U.S.C. § 1927, etc.).