Post-Alice Enforcement of Computer-Assisted Patent Does Not Warrant Attorney Fees Award Under 35 U.S.C. § 285

​ Following a dismissal for lack of patentable subject matter, the court denied defendant's motion for attorney fees under 35 U.S.C. § 285 because plaintiff's litigation positions were not baseless. "Although some courts have considered the pursuit of a computer-assisted patent after [Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 134 S. Ct. 2347 (2014)] to be 'objectively baseless,' the Court finds that this suit was not frivolous. [Plaintiff] presented five potential 'innovative concepts' that might save the validity of the patents even if they were otherwise abstract under Alice. Although none of these concepts persuaded the Court that [plaintiff's] claimed inventions were patentable, the Court agrees with [plaintiff] that Alice did not require the plaintiff to give up any hope of enforcing patents previously granted by the Patent Office pursuant to its standard procedures."

O2 Media, LLC v. Narrative Science Inc., 1-15-cv-05129 (ILND January 3, 2017, Order) (Tharp, Jr., USDJ)