Wednesday, June 7, 2017

Attorney Fees Award Not Limited to Expenses Caused by Litigation Misconduct Where Plaintiff’s Objectively Weak Positions Permeated the Entire Case​

Following remand, the court awarded defendants over $700,000 in attorney fees under 35 U.S.C. § 285 and rejected plaintiff's argument that fees should be limited to those incurred because of its litigation misconduct. "Plaintiff’s suggestion that any fees awarded in this case must 'only compensate for the extra legal expense caused by the litigation misconduct' is unpersuasive. . . . This Court found that the case was exceptional because Plaintiff’s efforts to manufacture venue, the use of a privileged email, and because of the overall weakness of the merits of Plaintiff’s positions taken at the [PTO]. It was not only Plaintiff’s conduct throughout the litigation, but also the objective weakness of Plaintiff’s proposed constructions before the [PTAB]. . . . Plaintiff’s misconduct permeated throughout the entirety of this matter. From the start of this litigation until the motion for attorney’s fees, Plaintiff’s conduct has stood out from the usual case. Accordingly, Defendants are entitled to their full fee as calculated by the lodestar method."

Large Audience Display Systems, LLC v. Tennman Productions, LLC, et al, 2-11-cv-03398 (CACD June 2, 2017, Order) (Real, USDJ)

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