Plaintiff’s Eve of Trial Changes to Litigation Claims No Basis for Attorney Fee Award

Following a jury verdict of noninfringement and invalidity, the court denied defendant's motion for attorney fees under 35 U.S.C. § 285 because plaintiff's litigation tactics were not unreasonable. "[A]fter jury selection but before opening statements, [plaintiff] dropped [one patent-in-suit] and several claims from [another] patent. . . . [Plaintiff] dropped its willfulness allegations after the Court relied on those allegations to admit a key piece of evidence that painted [defendant] in a bad light. . . . [Plaintiff] sought to change its infringement theory prior to and during trial. . . . The Court has repeatedly voiced its displeasure with some of [plaintiff's] trial tactics. . . . But the Court concludes that they do not rise to the level of exceptional conduct for which an award of fees is warranted. Significantly, [defendant] makes no allegations of unprofessional conduct from [plaintiff's] counsel for the more than two years this case was litigated prior to trial. . . . The concerns [defendant] raises involve decisions made during the heat of trial."

RLIS, Inc. v. Cerner Corporation, 3-12-cv-00209 (TXSD September 3, 2015, Order) (Costa, J.)