Breaking Into Defendant’s Server to Steal Source Code Did Not Justify Attorneys’ Fees

The court denied defendants' motion for attorneys' fees under 35 U.S.C. § 285 following reexamination that cancelled the patent-in-suit because plaintiff's act of breaking into defendant’s server to acquire source code did not result in a bad faith claim of infringement. "Defendants present evidence that Plaintiff has engaged in unscrupulous business practices, but they do not meet their burden of showing by clear and convincing evidence that the present litigation was brought in subjective bad faith. . . . [T]he fact that Plaintiff broke into [defendant's] server and stole its source code does not show that the present litigation was brought in subjective bad faith. . . . Defendants do not allege that Plaintiff orchestrated the break-in to lay the groundwork for a baseless suit. In fact, Plaintiff's behavior, while despicable and possibly in violation of the Computer Fraud and Abuse Act, is consistent with that of a company that sincerely believes its intellectual property is being infringed."

Direct Route LLC v. OnOffline Inc., et. al., 2-09-cv-01509 (WAWD January 10, 2013, Order) (Pechman, J.).