No Attorneys’ Fee Award Despite Vexatious Litigation Strategy and Misconduct

Following summary judgment of noninfringement and invalidity, the court denied defendant's motion for attorneys’ fees under 35 U.S.C. § 285 even though plaintiff and its counsel engaged in vexatious litigation amounting to misconduct. "From the beginning of this case, [plaintiff] flouted the standards of appropriate conduct and professional behavior. . . . At the scheduling conference, [plaintiff] began implementing its abusive discovery strategy: avoid its own litigation and discovery obligations while forcing its opponent to provide as much information as possible. . . . [Plaintiff] certainly abused and twisted its statements of law to the Court. . . . Although [plaintiff's] behavior has been inappropriate, unprofessional, and vexatious, an award of attorney fees must take the particular misconduct into account. This case has been fraught with delays and avoidance tactics to some degree on both sides. . . . At no point did the parties seek discovery sanctions under Fed. R. Civ. Proc. 37. . . . Given that the litigation followed an expected course of motions practice, and that discovery sanctions were available to [defendant], there is no gross injustice in failing to award of attorney fees in this case."

Oplus Technologies, Ltd. v. Sears Holdings Corporation, et al., 2-12-cv-05707 (CACD February 3, 2014, Order) (Pfaelzer, J.)