Proceeding With Litigation Following Unfavorable Claim Construction Warrants Attorneys’ Fees

The court granted in part defendants' motion for attorneys' fees under 35 U.S.C. § 285 following summary judgment of noninfringement. "[D]efendants filed the instant motion for attorneys’ fees pursuant to 35 U.S.C. § 285 or, in the alternative, 28 U.S.C. § 1927. Defendants seek to recover fees and costs accrued between the time the Court issued its Order Regarding Claim Construction . . . and the Court’s grant of summary judgment . . . [Plaintiff] persisted in litigating this case even after its own expert conceded that the processors in defendants’ chips cannot access all of the condition code storage locations. [Plaintiff's] decision to proceed, not only in the face of the Court’s claim construction, but in light of its own expert’s testimony supporting a finding of non-infringement, 'prolonged the litigation in bad faith.' Thus, this case is exceptional under 35 U.S.C. § 285. . . . [D]efendants are entitled to recover fees and costs incurred between . . . the date of [plaintiff's expert's] deposition [and] when the Court granted defendants’ motion for summary judgment."

BIAX Corporation v. NVIDIA Corporation, et. al., 1-09-cv-01257 (COD March 30, 2013, Order) (Brimmer, J.).