Plaintiff's motion to dismiss its own claims with prejudice, and defendant's counterclaims without prejudice, was granted but the court gave defendant leave to move for attorneys' fees under 35 U.S.C. § 285 which could result in a post-dismissal determination of unenforceability. "In [Leviton Mfg Co. v. Shanghai Meihao Elec., Inc., 613 F. Supp. 2d 670 (D. Md. 2009)] . . . the Federal Circuit’s holding did nothing to unsettle the district court’s initial steps of dismissing the patent claims with prejudice and granting the defendant leave to move for fees. . . . Inequitable conduct is one possible theory at issue in the overall § 285 fees context. If it is established, unenforceability 'follows automatically' as a matter of law."
Gordon-Darby Systems, Inc. v. Applus Technologies, Inc., 1-10-cv-01863 (ILND December 23, 2010, Order) (Zagel, J.)