Tuesday, March 17, 2009

Award of Attorneys' Fees for Appeal of Exceptional Case Does Not Require "a Separate Showing that the Appeal Itself is Exceptional"

In granting defendant's motion for additional attorneys' fees for a second appeal, the court rejected plaintiff's argument that "[defendant] must make a separate showing that the appeal itself is exceptional [and] that attorney fees have to be separately justified for each phase of a case." "[T]his Court has already held twice [that] this is an exceptional case, there is clear and convincing evidence of inequitable conduct, and attorney fees are appropriate. It does not matter that [defendant] requests fees for time spent on appeal because an award under the Patent Act 'is not limited to fees paid for counsel’s work at trial.' "

Dippin' Dots Inc, v. Mosey, 3-96-cv-01959 (TXND March 13, 2009, Order)

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