Plaintiff’s “Fallacious” Post-License Infringement Claim Warrants Attorney Fee Award

The court overruled plaintiff's objection to the magistrate judge's recommendation to award defendant attorneys' fees under 35 U.S.C. § 285 because plaintiff's claims were unsupported. "[Plaintiff] first objects to the Report and Recommendation on the grounds that 'only by exaggeration of an otherwise benign record could this case be deemed exceptional.' The Court flatly rejects [plaintiff's] nonpenitent view. . . . [Plaintiff's] argument that it retained the patents and therefore was justified in pursuing its case against [defendant] is a fallacious one. There was not one piece of evidence to support [plaintiff's] position that even if it retained the patents, [its licensee] could not make use of them in its commercialization efforts. The business deal made no sense otherwise. . . . Had [plaintiff] done any due diligence, it would have learned that no witness supported [plaintiff's] construction of the Agreement and this case [should] never have been filed."

Bayer CropScience AG, et al v. Dow Agrosciences LLC, 1-12-cv-00256 (DED March 13, 2015, Order) (Bumb, J.)