$5.3 Million Fee Award Not Excessive In Light of Plaintiff’s Financial Condition

The court awarded defendant more than $5.3 million in attorneys' fees under 35 U.S.C. § 285 and rejected plaintiff's argument that an award could bankrupt plaintiff. "[Plaintiff], which instituted this action with an eye toward 'tak[ing] [defendant] out,' now argues, without even a wisp of irony, that the risk of bankruptcy entitles it to a reduced fee liability. . . . [Plaintiff's CEO] contends only that a fee award in excess of $4 million 'may lead customers to terminate contracts with [plaintiff].' He does not contend that it would, or even could, result in bankruptcy as [plaintiff's] opposition brief asserts. Taken together, these facts are too speculative to merit a diminution in fees. Furthermore, capping a litigant's § 285 liability at the value that it can comfortably pay comes close to effacing the statute's distinct purpose as a deterrent to frivolous litigation."

Kilopass Technology, Inc. v. Sidense Corporation, 3-10-cv-02066 (CAND March 11, 2015, Order) (Illston, J.)