Mankes v. Vivid Seats was decided on April 22, 2016 on appeal from the Eastern District of North Carolina. There, the district court granted judgment on the pleadings for the defendants, finding no direct infringement. The district court then denied Vivid Seats request for attorney fees, finding the case not exceptional. At the time of the complaint (2014), and for the life of the suit, the law of divided infringement was in flux, as the Supreme Court and the Federal Circuit went back and forth in the Akamai saga. Plaintiff Mankes appealed the finding of no infringement, and defendant Vivid Seats appealed the denial of attorney fees.
Applying the divided-infringement standard of Akamai IV, the Federal Circuit vacated the judgment of no infringement and remanded. The district court’s ruling was based on an earlier, narrower, standard (the ruling predated the en banc Federal Circuit’s Akamai IV decision). The Federal Circuit then affirmed the denial of attorney fees.
Section 285 permits a court, in an “exceptional” case, to “award reasonable attorney fees to the prevailing party.” Because the Federal Circuit vacated and remanded the judgment on the pleadings, Vivid Seats was no longer the prevailing party, and could not get attorney fees.
The Federal Circuit continued, holding that “independently of whether legal standards undergo further changes or whether Mr. Mankes eventually loses,” “the district court committed no error in rejecting an exceptional-case contention even under the law before Akamai IV.” The case was not exceptional because the district court could view Mankes as “having reasonably, openly, and in good faith pressed arguments for plausibly result-altering changes in governing legal standards that were demonstrably under active judicial reconsideration … at the time.” During the district court proceedings, the law on divided infringement was uncertain (with both the Federal Circuit and Supreme Court weighing in), and Mankes’s litigation conduct (his good-faith arguments) reflected that shifting legal landscape. Thus the case was not exceptional, and did not warrant attorney fees.
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