No Section 285 Fee Award Against “Hyper-Litigious Non-Practicing Entity” Absent Frivolous Claims

The court denied defendant's unopposed motion for attorneys’ fees under 35 U.S.C. § 285 after the court dismissed plaintiff's infringement action for failing to obtain new counsel and rejected defendant's argument regarding plaintiff's litigation practices. "[Defendant] argues that [plaintiff] is a non-practicing entity and hyper-litigious. However, even if these contentions are accurate, the absence of any evidence in the record demonstrating that [plaintiff's] claims were frivolous precludes [defendant] from asserting that it should not have had to incur the costs of defending this litigation. If [plaintiff's] claims had merit, its status as a hyper-litigious non-practicing entity should not prevent it from bringing suit. . . . [Defendant] also argues that [plaintiff] has a history of bringing suit, draining its opponent’s financial resources, and then defaulting on its own legal fees, as has happened in this case. However, I do not find that [plaintiff] intended, from the outset, not to pay its legal fees."

Rates Technology, Inc. v. Broadvox Holding Company, LLC et al, 1-13-cv-00152 (NYSD October 7, 2014, Order) (Scheindlin, J.)