Failure to Obtain Product Sample Did Not Render Plaintiff’s Pre-Filing Investigation Inadequate

Following plaintiff's voluntary dismissal, the court denied defendant's motion for attorney fees under 35 U.S.C. § 285 because plaintiff's litigation positions were not unreasonable. "Defendant argues that [plaintiff's infringement analysis] was insufficient and that the Federal Circuit’s holding in Judin v. U.S., 110 F.3d 780, 784 (Fed. Cir. 1997) required Plaintiff to purchase a product sample prior to filing suit. . . . ⁠[O]btaining a sample of the infringing product is not a bright-line requirement to filing a patent infringement claim. . . . Plaintiff conducted an infringement analysis which included an informed comparison of the claims of the [patent-in-suit] against the publicly available information regarding the [accused product]. Under the Federal Circuit case law, this is sufficient to constitute an adequate pre-filing investigation."

Somaltus LLC v. The Noco Company, Inc., 1-17-cv-01111 (OHND March 27, 2018, Order) (Gaughan, USDJ)