Asserting ​Borderline Frivolous Infringement Claim Barred by Res Judicata Justifies Attorney Fees Award

Following dismissal for res judicata, the court granted defendant's motion for attorney fees under 35 U.S.C. § 285 because plaintiff's litigation positions were exceptionally weak. "Plaintiff’s only argument that his infringement claim was not barred by res judicata was based on the theory that he could not have raised the claim in [its prior action] 'because Defendant was unaware of the patents-in-suit, and Defendant was incapable of knowingly inducing infringement without such knowledge.' This Court noted that because of the uncertain state of the law, Plaintiff had 'at least a colorable basis to allege the knowledge element of a claim for induced infringement based on the filing of the complaint.' Moreover, the record negated Plaintiff’s argument that Defendant was not aware of the patents-in-suit prior to [the prior action]. Therefore, the Court concludes that the weakness of Plaintiff’s litigation position, which borders on frivolous, demonstrates that this is an exceptional case."

Lyda v. CBS Interactive, Inc., 4-16-cv-06592 (CAND January 24, 2018, Order) (White, USDJ)