Apotex, Inc., et al v. UCB, Inc., et al, 0-12-cv-60706 (FLSD December 4, 2015, Order) (Middlebrooks, J.)
Tuesday, December 8, 2015
Plaintiff’s Reprehensible Conduct Justifies Recovery of Defendant’s Expert Witness Fees
The court granted in part defendant's motion for expert witness fees as sanctions under the court's inherent power because of plaintiff's reprehensible conduct. "The conduct was more reprehensible than the typical frivolous claim asserted to extract a cost of litigation settlement. . . . Instead of inventing something novel deserving of patent protection, [plaintiff] applied for a patent on its competitor's product with the intention of suing for infringement. . . . Selective information was provided to an expert in order to obtain a misleading declaration used to convince the examiner. Examples provided in the patent claimed experiments that were never conducted. . . . From beginning to end, this was a pernicious scheme to use the patent system and the judicial process for an improper purpose. It was not the first time [plaintiff] had employed such a scheme. This misconduct merits recovery of expert witness fees and expenses, at least for. . . a testifying expert, in the amount of $173,193.19. I decline to award fees for [an expert], who did not testify but was retained as a rebuttal expert on damages."