Evidence That Defendant Practiced A Majority Of The Steps Of The Claimed Method
The court granted defendant's motion for attorneys' fees under 35 U.S.C. § 285 following summary judgment of noninfringement where plaintiff maintained an objectively baseless lawsuit against defendant. "[Plaintiff] rejected reasonable assurances from [defendant], in the form of two affidavits from [defendant's] CFO . . . as well as in its responses to requests for admissions, averring that [defendant] had not used in-cab scanning and did not intend to implement in-cab scanning. Instead of objectively viewing the record and voluntarily dismissing its infringement claim, [plaintiff] unreasonably and vexatiously sought additional reassurances from [defendant] and persisted in prosecuting a claim that lacked a realistic chance of success. . . . The Court also notes that throughout the litigation, [plaintiff] has placed great emphasis on the fact that [defendant] practiced some, or even a majority, of the steps of the claimed method, as if that were sufficient, without more, to sue [defendant] for infringement. This is not horseshoes, however, and suing [defendant] because it practiced most of the steps of the claimed method is not good enough."
In re: Bill of Lading Transmission and Processing System Patent Litigation, 1-09-md-02050 (OHSD March 6, 2012, Order) (Beckwith, J.)