Continuing Litigation of Non-Viable Case to Avoid § 285 Motion Favors Award of Attorney Fees

Following plaintiff's voluntary dismissal, the court granted defendant's motion for attorney fees under 35 U.S.C. § 285 because plaintiff's litigation positions and tactics were exceptional. "⁠[Plaintiff's] behavior is consistent with the filing of patent infringement actions to force settlements with no intention of testing the merits of the claims. Its lawsuit against [defendant] was one of 20 lawsuits filed the same day concerning the [same] Patent. Most of the cases promptly settled for between $3000 to $15,000. . . . [B]efore a ruling on [defendant's] § 101 motion, [plaintiff] offered to walk away provided that [defendant] would forego its right to seek fees. . . . [Defendant] countered it would agree to a dismissal, but would not waive its right to seek fees under § 285. [Plaintiff] refused that offer, which suggests exposure to an 'exceptionality' finding was on its mind. . . . This shows the driving factor in its decision not to dismiss the case was its exposure to attorney’s fees, not the underlying merits of its position. . . . Simply put, refusing [defendant's] offer made no sense if [plaintiff] believed it had a meritorious case and that a § 285 motion would have been frivolous."

Opal Run LLC v. C&A Marketing, Inc., 2-16-cv-00024 (TXED November 30, 2017, Order) (Payne, MJ)