In Dragon Intellectual Property LLC v. Dish Network LLC, – (Fed. Cir., May 20, 2024), a divided panel of the U. S. Court of Appeals for the Federal Circuit held that a prevailing defendant in an otherwise “exceptional” patent infringement case could not recover attorney fees expended in a parallel inter partes review (IPR) proceeding because the defendant’s initiation of the IPR was “voluntary.” The court ostensibly drew a bright line between Dish’s “voluntary” U.S. Patent and Trademark Office (USPTO) filing and the purportedly “involuntary” filing at issue in a 1988 Federal Circuit case. I respectfully suggest that the earlier case was wrongly decided and that there is no meaningful difference between the fact patterns in the two cases.

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