Wednesday, April 29, 2009

Plaintiff's Offer of "Walk Away" Settlement Bars Finding of Exceptional Case Despite Later Assertion of Poorly Supported Validity Position

Defendant's motion for a finding of exceptional case and an award of attorneys' fees was denied. "Within days of receiving the Court’s priority date ruling, plaintiff offered a 'walk-away' settlement pursuant to which plaintiff would abandon his infringement claim and defendants would drop their invalidity cross-claim. . . . When defendants rejected plaintiff’s settlement offer and pursued their cross-claim of invalidity, plaintiff felt compelled to defend his patent. While the experimental use argument plaintiff raised in opposition to defendants’ motion [for summary judgment] was not well-supported, plaintiff had done what he could to avoid further litigation and expense, and it was not unreasonable for him to try to deflect a direct assault on his patent when defendants opted to continue the litigation."

Nelson v. K2 Inc., 2-07-cv-01660 (WAWD April 27, 2009, Order)

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