Post-Alice Defense of Patent-In-Suit Does Not Justify Award of Attorney Fees

Following judgment on the pleadings of unpatentable subject matter, the court denied defendants' motion for attorney fees under 35 U.S.C. § 285, because plaintiff's litigation positions were not baseless. "According to [defendants], after [Alice Corporation Pty. Ltd. v. CLS Bank International, 134 S. Ct. 2347 (2014)] Plaintiff should have known that its litigation position was weak and that continued litigation was unreasonable because Plaintiff’s patent, like the patents in Alice, relied on generic computer implementation to make its ineligible concepts patent eligible. . . . In response to [defendants'] motion for judgment on the pleadings, Plaintiff explained why its patent was not directed to an abstract idea, as well as why its patent, even if it were directed to an abstract idea, nonetheless contained an inventive concept. Although Plaintiff’s arguments were ultimately rejected, the Court does not agree that this is sufficient grounds for finding this case 'exceptional.'. . . The Court also declines to find, as [defendant] appears to advocate, that patent holders whose patents may be similar to the patent in Alice should have to decide between voluntarily dismissing their suits or being assessed attorneys’ fees pursuant to section 285."

RecogniCorp, LLC v. Nintendo Co, Ltd., et al, 2-12-cv-01873 (WAWD July 18, 2016, Order) (Jones, J.)