“Unsettled and Rapidly Evolving” Patent Eligibility Landscape Weighs Against Award of Attorney Fees

Following summary judgment of invalidity for lack of patentable subject matter the court denied plaintiff's motion for attorney fees under 35 U.S.C. § 285 because defendant's litigation positions were not baseless. "[T]he patent issued after the Supreme Court’s decision in Alice. The patent is presumed valid, 'and this presumption exists at every stage of the litigation.' Defendant also notes that it did not initiate the litigation. In Defendant’s view, it merely defended 'a presumptively valid patent and preserve[d] its counterclaims in an action it did not initiate in a forum it did not choose.' In addition, Defendant correctly points out that post-Alice, the landscape of patent ineligibility under 35 U.S.C. § 101 is unsettled and rapidly evolving. Defendant argues that while it was aware Alice 'would create difficultly[,]' it defended the patent in good faith. On this record, the Court declines to find that the substantive weakness of Defendant’s position was so objectively apparent as to render the case exceptional."

Clarilogic, Inc. v. FormFree Holdings Corporation et al, 3-15-cv-00041 (CASD April 27, 2016, Order) (Sabraw, J.)