Inventor’s Change of Testimony at Trial Warrants Attorney Fee Award Under § 285

The court granted in part defendant's motion for attorney fees under 35 U.S.C. § 285 following a jury trial because of plaintiff's litigation misconduct after the inventor changed his testimony regarding conception at trial. "During his deposition, [the inventor] testified that he did not recognize or have any knowledge of a document and stated that he would not change his testimony at trial. However, at trial he identified the document as his conception document and stated that he was the author. [The inventor] explained that he had requested a copy of the document to look over after the deposition, at which point he recalled what it was. . . .While a change of testimony is not itself necessarily unethical or unprofessional, the failure of [plaintiff] to alert [defendant] to the change in testimony at any point in the year prior to trial is. [Plaintiff] knowingly introduced testimony that violated a witness's sworn commitment not to change his testimony at trial, understanding that [defendant] would have prepared based on misleading information. [Plaintiff] took no steps to rectify the situation despite ample time to do so. Accordingly, the testimony of [the inventor] warrants a determination of exceptional conduct."

Digital Reg of Texas, LLC v. Adobe Systems Incorporated, et al, 4-12-cv-01971 (CAND March 9, 2015, Order) (Wilken, J.)