The court granted plaintiffs' motion for attorneys' fees under 35 U.S.C. § 285, finding the case to be exceptional based on defendants' continued pursuit of an inequitable conduct defense even after Federal Circuit jurisprudence rendered such claim objectively baseless. "[Defendants'] inequitable conduct claim was objectively baseless after the Federal Circuit's ruling in [Therasense Inc. v. Becton, Dickinson and Co. (Fed. Cir. May 25, 2011)], and [they] could not have reasonably believed that its claim would succeed. . . . [Prosecution counsel's] actions here are most akin to acts of nondisclosure, and [defendant] has made absolutely no showing of 'but-for' materiality. While [defendant] attempts to recharacterize [counsel's] inaction with foreign litigation material as a scheme of affirmative action, the court does not find such an interpretation reasonable. . . . The record in this case, in addition to being devoid of evidence of inequitable conduct . . . is also filled with examples of related wasted resources. [Defendant] not only persisted in its baseless inequitable conduct claim through trial, but it also attempted to amend the claim three days into trial. . . . Most incredibly, [defendant] attempted to include new allegations against one of Pfizer's trial counsel for the duration of this suit . . . a concern expressed specifically by the Federal Circuit in Therasense. This conduct demonstrates that the interests of justice necessitate an award of attorney fees to [plaintiffs]."
Pfizer Inc., et. al. v. Teva Pharmaceuticals USA, Inc., et. al., 2-10-cv-00128 (VAED October 17, 2011, Order) (Smith, J.)