Judge Dyk: Defendant’s Failure to Seek Summary Judgment Undermines Request for Attorneys’ Fees

Following a jury verdict of noninfringement and invalidity, the court denied defendant's motion for attorneys’ fees under 35 U.S.C. § 285. "[Defendant's] motion is primarily based on the fact that [plaintiff] made losing arguments. . . . [T]hat is not a ground for finding a case exceptional. Every case will have a loser. . . . [Plaintiff's] argument was certainly a weak one, but despite the alleged implausibility of [plaintiff's] position, [defendant] never sought summary judgment of non-infringement on the basis of the limitation at issue. This suggests that [defendant] did not always view [plaintiff's] infringement position as frivolous. There is little injustice in forcing [defendant] to bear its own attorney’s fees for defending a claim it did not challenge on summary judgment. Disposing of a frivolous claim on summary judgment would avoid a trial and have the effect of saving both parties a substantial portion of their litigation costs."

Stragent, LLC et al v. Intel Corporation, 6-11-cv-00421 (TXED August 6, 2014, Order) (Dyk, C.J.)