Monday, November 10, 2014

“Assembly-Line” Litigation Tactic Supports Attorneys’ Fee Award

Following summary judgment of noninfringement, the court granted in part defendant's motion for attorneys’ fees under 35 U.S.C. § 285 because of its unreasonable litigation conduct. "[Plaintiff] essentially prosecuted this case in assembly-line fashion. It served a boilerplate complaint on dozens of defendants. [Plaintiff] has never attempted to demonstrate that it performed a presuit investigation of the [accused] App. It 'carelessly' served discovery requests that had nothing to do with the [accused] App. [Plaintiff] also relied on claim construction briefings filed against other defendants with dissimilar products than in this case, which did not focus on the most pertinent issues in this case, or respond to [defendant's] proposed constructions. . . . Most importantly, [plaintiff] did not expend the resources necessary to support its positions on infringement. [Plaintiff] repeatedly relied on attorney argument where facts were required. . . . Of the dozens of cases [plaintiff] or its predecessor has filed, only this case has reached a decision on the merits. From the litigation conduct in this case, it appears that [plaintiff] is actually not willing to invest the resources to prove up its infringement case. Deterring similar behavior — filing a patent infringement suit but being unwilling to expend the resources necessary to support the infringement claims — is an appropriate consideration in awarding fees."

IPVX Patent Holdings, Inc. v. Voxernet LLC, 5-13-cv-01708 (CAND November 6, 2014, Order) (Lloyd, M.J.)

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