Expert’s Flawed Methodology Supports Award of Attorney Fees Under 35 USC § 285

Following summary judgment of noninfringement and invalidity, the magistrate judge recommended partially granting defendants' motion for attorneys' fees under 35 U.S.C. § 285 because plaintiffs' litigation position on their infringement expert's methodology was objectively unreasonable. "Although this court determined [plaintiffs' expert] was qualified under the liberal interpretation of an expert under [FRE] 702 because of his previous and current experiences, its conclusions regarding his methodology were the opposite. This court determined that his entire expert report was not based on any reliable methodology, and strongly criticized his entire infringement analysis, both literal and under the doctrine of equivalents for both patents, as conclusory, without analysis of how each claim element read on or was met by the accused ride. . . . Such criticism demonstrates that [the expert's] report so lacked any reliable methodology under the Daubert analysis and [FRE] 702 that it should have been apparent to plaintiffs. Therefore, plaintiffs' reliance on [their expert's] report was objectively unreasonable."

Magnetar Technologies Corp, et al v. Six Flags Theme Park Inc., et al, 1-07-cv-00127 (DED July 21, 2015, Order) (Thynge, M.J.)