Failure to Dismiss Case After Unfavorable Claim Construction Rendered Case Exceptional Warranting Attorneys’ Fees

Following summary judgment, the magistrate judge recommended granting in part defendant's motion for attorneys' fees under 35 U.S.C. § 285. The magistrate judge determined that the case became exceptional when plaintiff refused to dismiss its action following the Markman hearing. "The undersigned finds that the most compelling argument against [plaintiff] is its failure to oppose [defendant's] motion for summary judgment with any expert declaration. . . . Without an expert of its own, [plaintiff] could not prevail on summary judgment. This supports [defendant's] argument that [plaintiff] prolonged the litigation in bad faith after receiving the claims construction ruling."

Spectros Corp. v. Thermo Fisher Scientific, Inc., 4-09-cv-01996 (CAND September 17, 2012, Order) (Vadas, M.J.).