Frivolous Claim Construction Argument Justifies Award of Attorneys’ Fees Even If Nondispositive

Following summary judgment on defendant's patent counterclaims, the court granted plaintiff's motion for attorneys’ fees under 35 U.S.C. § 285. "[T]he 'totality of the circumstances' dictates that [defendant] acted in an 'exceptional' manner throughout this litigation. In one instance, [defendant] even ignored an express warning from the Court not to take certain action — otherwise sanctions would follow — and [defendant] nevertheless proceeded. . . . [Defendant] also deserves to be sanctioned for proposing a construction of [a term] that the Court later held 'render[ed] meaningless the amendments [defendant] added after the [PTO] rejected the original versions of the claim language.'. . . . [Defendant] argues that its proposed construction cannot form the basis for an award of attorneys’ fees. However, a finding of frivolity does not depend on whether the issue ultimately disposed of the case or motion. Rather, frivolity can exist in isolation. Parties cannot litigate a case by presenting multiple alternative arguments, some of which lack merit, then later take shelter under the meritorious ones when facing a motion for attorneys’ fees."

TNS Media Research, LLC, et al v. TRA Global, Inc., 1-11-cv-04039 (NYSD November 4, 2014, Order) (Scheindlin, J.)