Last Minute Amendment of Infringement Contentions Supports § 285 Fee Award

Following summary judgment of invalidity, the court granted defendant's motion for attorney fees under 35 U.S.C. § 285 because plaintiff's litigation tactics weighed in favor of a fee award. "[Plaintiff] has never provided an explanation of its failure to allege infringement of the additional [seven] products prior to the last minute before the close of fact discovery. . . . Although [plaintiff] did serve its amended contentions just before the close of fact discovery, its assertion that the amendments were made 'as soon as reasonably possible based on the information available' does not hold up under scrutiny. . . . [Plaintiff's] amended contentions were principally 'based on publicly available information.' Additionally, five months was more than a reasonable time to amend the contentions to include information [plaintiff] itself characterized as the 'limited documentation produced to date.' The circumstances strongly support the inference that [plaintiff's] assertion of infringement by seven additional vehicles two hours before the close of fact discovery was illegitimately motivated."

Vehicle Interface Technologies, LLC v. Jaguar Land Rover North America, LLC, 1-12-cv-01285 (DED December 28, 2015, Order) (Andrews, J.)