Thursday, October 15, 2009

Delay in Asserting Affirmative Defense and "Piratical" Settlement Demand Bar Recovery of Attorneys' Fees by Successful Defendant

In denying defendant's motion for attorneys' fees following plaintiff's voluntary dismissal of its patent claims, the court concluded that defendant's fees and expenses were incurred due to its delay in asserting an affirmative defense and its "almost piratical" demand "that plaintiff 'dismis[s] with prejudice all pending litigation' (including other cases) and pay defendant $1,200,000, an amount that is more than double defendant’s estimate of its fees and non-taxable costs now. . . . To the extent that defendant incurred what it now deems unnecessary costs and fees in this case, the blame lies with defendant’s strategy and tactics." "Athough [35 U.S.C. § 285] indicates that an award of fees is a rare event, this has not stopped prevailing parties in this district from seeking fees as a matter of course. But as a point of logic, if every patent lawsuit is exceptional, then none of them is."

Spacesaver Corp. v. The Marvel Group, Inc. et al., 3-08-cv-00354
(WIWD October 13, 2009, Order) (Crocker, M.J.)

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