Under Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014), an “exceptional” case is “simply one that stands out from others with respect to the substantive strength of a party's litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Id. at 554; see also Intell. Ventures I LLC v. Trend Micro Inc., 944 F.3d 1380, 1384 (Fed. Cir. 2019) (§ 285 “require[s] a finding of an exceptional case—not a finding of an exceptional portion of a case”). 

In Nike, Inc. v. Lululemon USA Inc., No. 1:23-cv-00771-AS (S.D.N.Y. Oct. 6, 2026), the court characterized the case as “a classic battle of the experts and evidence premised on tests and visual inspections” was not exceptional and did not stand out. 

Continuing to persue one patent after an adverse claim construction and asserting another patent despite known prior art was not unreasonable. Even after the adverse claim construction, there were factual disputes that survived summary judgment. And the prior art's significance was contested and the jury did not find the patent to be invalid (although the court later granted judgment as a matter of law that the patented claims were invalid as obvious). 

"Even though Nike ultimately lost, its claims were strong enough to get all the way to trial and obtain a partial jury verdict in its favor."