Wednesday, January 31, 2018

Litigation Conduct Evincing Lack of Respect for Patent Rights and Litigation Process Supports Attorney Fees Award

Following a jury verdict of willful infringement, the court granted plaintiff's motion for attorney fees under 35 U.S.C. § 285 because defendant's litigation conduct and positions were exceptional. "Regarding attorneys fees . . . Defendant simply argues that, 'reasonable or not,' it didn’t have an 'intent to deceive.' But this is not the test for evaluating . . . Section 285. Whether or not Defendant had an intent to deceive is a separate question from whether Defendant acted recklessly -- or worse -- in disregarding another’s patent rights under Section 284. . . . Defendant almost would have been better served if it hadn’t filed an opposition. Like its failure to produce experts at trial, Defendant’s Opposition evinces a lack of respect for Plaintiff’s patent rights and the litigation process. . . . Defendant maintained invalidity defenses through the course of litigation, only to completely fail to present any evidence to support those defenses at trial. Indeed, despite failing to include proposed jury instructions on invalidity and providing no evidence of obviousness, Defendant opposed Plaintiff’s Rule 50 Motion on Defendant’s invalidity defense. Moreover, as stated, the jury found that Defendant’s infringement was willful. . . . Here, based both on Defendant’s conduct during litigation and the jury’s unchallenged finding of willful infringement, the Court finds fees are appropriate."

Genes Industry, Inc. v. Custom Blinds and Components, Inc., 8-15-cv-00476 (CACD January 29, 2018, Order) (Guilford, USDJ)

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