Plaintiff’s Assertion of Baseless Direct Infringement Claim Warrants Attorney Fees Award

The court granted defendant's motion for attorney fees under 35 U.S.C. § 285 following plaintiff's post-Markman voluntary dismissal because plaintiff's direct infringement claim was baseless. "Notably, in the Complaint, plaintiff alleged that the [patent-in-suit] was 'directed to a portable computer having an integral case.' At the same time, plaintiff alleged that defendant had infringed his patent by selling or manufacturing only portable computer cases. In other words, although plaintiff’s patent was directed toward a computer and an integral case, defendant only manufactured cases. . . . In light of plaintiff’s own construction of the [patent] from the outset of this case, and the known fact that defendant did not manufacture or sell a product that was covered by that construction, the Court is at a loss to explain why plaintiff chose to initiate and then continue litigating his direct patent infringement claim. . . . [T]o the extent plaintiff’s knowledge of defendant’s manufacturing or sale habits was shaky, those habits were made abundantly clear in defendant’s Counterclaim — filed less than four months after the initiation of this case, and nearly a year before plaintiff moved to dismiss the direct patent infringement claim."

Bovino v. Levenger Company, 1-14-cv-00122 (COD April 21, 2016, Order) (Moore, J.)