Plaintiff’s Decision To Sue Customers Instead of Suppliers Does Not Warrant Attorney Fee Award

Following remand, the court again denied defendant's motion for attorney fees under 35 U.S.C. § 285 because plaintiff's litigation tactics were not exceptional. "[Defendant] emphasizes that [plaintiff] filed 70 infringement actions across the country against customers who use the accused live chat technology on their websites-rather than the suppliers making and selling the technology in a ploy to get the suppliers to intervene and pay for settlement licenses. [Defendant] further asserts that [plaintiff's] lack of diligence in discovery and deficient infringement contentions demonstrate a lack of intent to ever pursue this case on the merits. . . . While [defendant] criticizes [plaintiff] for bringing suit against customers who use the live chat technology, rather than the suppliers who make and sell the technology, I cannot find this case exceptional simply because Plaintiff did something that is expressly allowed and contemplated by the Patent Act."

Pragmatus Telecom LLC v. Newegg Inc., 1-12-cv-01533 (DED February 18, 2016, Order) (Andrews, J.)