Withdrawing Infringement Claims During Discovery and After Claim Construction Does Not Justify Attorneys’ Fee Award

The court denied defendant's motion for attorneys’ fees under 35 U.S.C. § 285 after plaintiff dropped three of six asserted patents before a jury trial. "[T]here is no basis to conclude that Plaintiff engaged in a 'kitchen sink' approach without a good faith basis for bringing suit. . . .One of the purposes of discovery . . . is 'to allow the plaintiff to pin down the defendant’s theories of defense, thus confining discovery and trial preparation to information that is pertinent to the theories of the case.' Plaintiff’s withdrawal of [one] patent during the course of discovery . . . was not unreasonable, and does not weigh in favor of an 'exceptional' case finding. Similarly, the Court does not regard Plaintiff’s withdrawal of its claims on [two other] patents after receipt of the Court’s claim construction order as unreasonable. A party is free to alter its litigation strategy after receiving an unfavorable claim construction."

NXP BV v. Research In Motion Ltd., et al, 6-12-cv-00498 (FLMD October 22, 2014, Order) (Kane, J.)