Thursday, July 1, 2010

Chief Judge Rader: Losing Plaintiff's Failure to Dismiss Following Claim Construction Does Not Warrant Award of Attorneys' Fees

Successful defendants' motion for attorneys' fees under Section 285 was denied, notwithstanding defendant's letter following claim construction requesting that plaintiff dismiss its infringement claims. "[Defendant] points to a letter that it sent to [plaintiff] that asked [plaintiff] to dismiss its infringement claims in light of the court's claim construction. Had [plaintiff] complied with [defendant's] demands, [defendant] argues, none of the additional work to prepare for summary judgment motions and trial would have been necessary. Ironically, [defendant's] argument itself borders on frivolous. [Defendant] points to no authority that would create a duty in a patentee to comply with an accused infringer's self-serving letter [demanding a dismissal following claim construction] denigrating its opponent's case, even though the accused infringer turns out to be correct on the merits. Such a duty would be especially inappropriate where, as here, the claim construction that purportedly rendered the patentee's case futile was actually a compromise between the two sides' proposed constructions."

Performance Pricing, Inc. v. Google Inc. et al., 2-07-cv-00432 (TXED June 29, 2010, Order) (Rader, C.J.)

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