Unsupported Claim Construction Argument Warrants Partial Award of Attorneys’ Fees

The court granted in part defendant's motion for attorneys’ fees under 35 U.S.C. § 285 for a claim that was subject to a stipulated dismissal following claim construction. "[Plaintiff] relies on the complexity of the issue, as evidenced by the court’s request for supplemental briefing, as evidence that its position was not objectively baseless. This argument mischaracterizes the source of the court’s greatest difficulties and request for clarification, which arose not from the complexity of the issues themselves, but from [plaintiff's] shifting claim construction positions and failure to offer plausible argument in support of those positions. . . . Even now, [plaintiff] offers no plausible argument in favor of the one-molecule theory of claim construction. . . . No later than [plaintiff's response to defendant's opening claim construction brief], however, it should have been obvious to [plaintiff] not only that it was relying on the one-molecule theory of claim construction, but also that its success on the merits of [that] Claim was dependent on this construction."

Pure Fishing Inc. v. Normark Corporation, 3-10-cv-02140 (SCD January 21, 2014, Order) (Currie, J.)