Attorney Fees Awarded for Plaintiff’s Continued Prosecution of Infringement Claim Despite Clear 28 U.S.C. § 1498 Defense

The court granted defendant's renewed motion for attorney fees under 35 U.S.C. § 285 after plaintiff's action was dismissed under 28 U.S.C. § 1498 because plaintiff's litigation positions were baseless. "[Plaintiff] (and [plaintiff's counsel]) knew that the Government had specifically expressed its authorization and consent to [defendant's] allegedly infringing conduct in this suit. . . . [Plaintiff] cannot seriously maintain that it had a good-faith basis for continuing to pursue its infringement claim. Not only was [plaintiff] on notice that its claims had legal problems, it knew exactly what those problems were because [defendant's] attorneys had sent several letters outlining the problems in detail. The record reflects that [plaintiff] continued to litigate the case even after it knew that it could not prevail on the merits based on strong precedential evidence. [Plaintiff's] continued pursuit of baseless claims that had no chance of success, combined with its inability to provide a good-faith basis excusing this conduct, demonstrate that this case is 'exceptional' and that awarding attorneys’ fees is appropriate."

Astornet Technologies Inc. v. BAE Systems, Inc. et al, 8-14-cv-00245 (MDD August 4, 2016, Order) (Titus, J.)