Appeal Need Not be Independently Exceptional to Justify § 285 Attorney Fee Award

The court partially granted defendant's motion for supplemental attorneys fees under 35 U.S.C. § 285 for fees incurred defending plaintiff's appeal. "The Court previously determined that this case was exceptional. [Plaintiff] argues that this is insufficient to award fees for the appeal . . . . [W]hile it is true that an award of appellate fees is not automatic upon an unsuccessful appeal from a § 285 award, neither must the appeal be independently exceptional to justify such an award. . . . [Plaintiff] brought a meritless case and then extended that case, and [defendant's] defense costs, via the appeal. . . . [T]he Court awards Defendant its fees on appeal, because doing so is necessary to fully compensate Defendant for the defense of a meritless case. The Court does not find that the appeal was independently exceptional. To be clear, the Court is not here applying an automatic rule in which appellate fees must be granted if an exceptional case finding is affirmed on appeal . . . ."

Action Star Enterprise, Co. Ltd. v. KaiJet Technology International, Limited, et al, 2-12-cv-08074 (CACD June 24, 2015, Order) (O'Connell, J.)