In Complex Cases, Section 285 Attorney Fees May be Awarded After Each Phase of Litigation

Following a consent judgment, the court granted defendants' motion for attorney fees under 35 U.S.C. § 285 in the first phase of the parties' litigation and rejected plaintiff's argument that an award of fees was premature. "Defendants’ position is more faithful to proper interpretation of Rule 54 and 35 U.S.C. § 285, and reflects the superior policy position with regard to shifting attorney’s fees in a complex, protracted patent case. . . . Phase I was a complete victory for the Defendants, and it concluded with a judgment . . . of noninfringement as to four patents. . . . [I]n complex patent litigation, determinations of prevailing party status during each 'phase' of litigation may be the only practical way to achieve the purposes inherent to making an exceptional case determination under 35 U.S.C. § 285. . . . Importantly, making a § 285 determination at the conclusion of a phase of litigation will, ideally, have the salutary effect of curbing exceptional conduct in future phases. In the absence of a rule permitting exceptional case determinations at the conclusion of a 'phase' of a case, a litigant with many patents and an exceptionally weak substantive litigating position could continually delay the conclusion of a case, thus frustrating the ability of the Court to enter a 35 U.S.C. § 285 determination and impose meaningful sanctions."

Kinglite Holdings Inc. v. Micro-Star International Co. Ltd. et al, 2-14-cv-03009 (CACD June 23, 2016, Order) (Selna, J.)