Unsuccessful Equitable Estoppel Position Does Not Make Case Exceptional

Following summary judgment of equitable estoppel, the court denied defendant's motion for attorney fees under 35 U.S.C. § 285 because plaintiff's litigation positions were not unreasonable. "While [plaintiff's] reliance on [Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014)] may have been misplaced, its position that the conduct described in this instance does not qualify as misleading was not objectively unreasonable. While several Federal Circuit cases have addressed the issue, there is no clear holding on when silence, without affirmative misrepresentations, can be sufficiently misleading as to provide a basis for equitable estoppel. In reaching its decision, the Court had to analyze several Federal Circuit decisions on the question and analogize the facts at issue to these cases. Reasonable minds could have differed on the outcome."

Akeso Health Sciences, LLC v. Designs for Health, Inc., 2-16-cv-07749 (CACD June 22, 2018, Order) (Otero, USDJ)