Selective Reliance On Informal Opinion of Counsel Supports Attorney Fees Award

Following a stipulated judgment, the court granted plaintiff's motion for attorney fees under 35 U.S.C. § 285 because defendants' litigation tactics were exceptional. "Defendants’ reliance on [their counsel's] purported noninfringement opinion is particularly exceptional. . . . In a note specifically omitted from Defendants’ email to Plaintiff, [counsel] stated, '⁠[a] formal opinion is required, and that involves extensive study and other efforts to provide a reliable outcome. Please call me to discuss.' It would be one thing if Defendants simply received the email from [counsel] and purported to rely on it as an opinion of counsel. But the fact that Defendants removed [counsel's] disclaimer and copy-pasted the rest of [his] statements in an email to Plaintiff is more concerning. . . . The issue is not that Defendants failed to obtain a formal opinion of counsel, it is how Defendants conducted themselves in their interactions (or lack thereof) with Plaintiff regarding their alleged non-infringement positions. . . . With Defendants’ pre-litigation conduct and their conduct during litigation, particularly at the outset of litigation, there is strong reason to believe that this case could have been resolved amicably and early if not for Defendants’ actions."

Drop Stop LLC v. Jian Qing Zhu et al, 2-16-cv-07916 (CACD January 22, 2018, Order) (Guilford, USDJ)