Defendant’s Litigation Misconduct Precludes Determination of Exceptional Case

The magistrate judge recommended denying defendant's motion to reconsider an earlier order denying defendant's motion for attorneys’ fees under 35 U.S.C. §285. "In granting [defendant's] motion to submit . . . supplemental authority, I asked the parties to address whether [Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S.Ct. 1749 (2014)] and [Highmark, Inc. v. Allcare Health Management System, Inc., 134 S.Ct. 1744 (2014)], 'preclude consideration of [defendant's] litigation conduct (or misconduct) in determining whether attorneys’ fees should be awarded." . . . While [defendant] admits that the court 'is free to consider . . . the conduct of both parties' in determining whether this is an 'exceptional case', it argues that the court should 'primarily focus its inquiry on an objective assessment of the substantive merits of [plaintiff's] position, and . . . that consideration should be given the most weight'. I disagree. . . . One of the 'traditional principles of equity' is that 'he who comes into equity must come with clean hands'. 'This maxim necessarily gives wide range to the equity court’s use of discretion in refusing to aid the unclean litigant.' '"[U]nclean hands" really just means that . . . the plaintiff’s fault, like the defendant’s, may be relevant to the question of what if any remedy the plaintiff is entitled to.' . . . Given [defendant's] own litigation misconduct, it does not have 'clean hands' sufficient to render this an 'exceptional case'."

Gaymar Industries, Inc. v. Cincinnati Sub-Zero Products, Inc. et al, 1-08-cv-00299 (NYWD July 3, 2014, Order) (McCarthy, M.J.)