Nonfinal Invalidity Findings by PTO Cannot Provide Basis for Attorneys’ Fee Award

The court denied defendants' motion for attorneys' fees under 35 U.S.C. § 285 following summary judgment of invalidity and found that the PTO's finding of anticipation could not serve as the basis for a Section 285 award. "[A]s to the invalidity findings by the PTO, although the Court found them persuasive in reaching its own independent conclusion as to invalidity, those conclusions were not the final word on validity from the PTO and cannot provide a basis for finding this case exceptional under section 285."

Implicit Networks, Inc. v. F5 Networks, Inc., 3-10-cv-03365 (CAND May 8, 2013, Order) (Illston, J.).