What makes a case exceptional?
In Octane Fitness, LLC v. ICON Health & Fitness, Inc., the Supreme Court explained that a case may stand out because of the substantive strength of a party's litigating position or the unreasonable manner in which the case was litigated. The district court considers the totality of the circumstances. The test is not a rigid requirement to prove both objective baselessness and subjective bad faith.
What standard of proof applies?
Octane Fitness rejected a clear-and-convincing-evidence requirement. The ordinary preponderance standard applies. A weak claim, a loss, or an unfavorable ruling does not by itself establish that fees must be awarded.
What should I preserve?
Keep the record of positions taken, relevant correspondence, court rulings, and fees incurred. Ask counsel to identify which facts support or undermine an exceptional-case request. Budget the case without treating a possible future fee award as assured reimbursement.