Bad Faith Assertion of Invalidity Defense Solely to Extend ITC Preclusion Order Justifies Award of Attorney Fees

The court granted in part plaintiff's requested fees under 35 U.S.C. § 285 because defendant maintained its invalidity defense solely to extend the time of an ITC preclusion order. "⁠[T]he ITC exclusion bar relating to Claims 8 and 19 remains in effect, even though the independent claims upon which these dependent claims rest are invalid. . . . Because the Court finds that [defendant's] actions regarding the issue of obviousness on Claims 8 and 19 were not made in good faith, but as an attempt to extend the time of the ITC preclusion order on these two claims directed against [plaintiff], the Court finds this portion of the case to be sufficiently exceptional to warrant awarding [plaintiff] one half of the attorneys' fees incurred during the week of the trial (to reflect [plaintiff's] attorney time spent on the issue of invalidity of [defendant's] patent), and all fees of [plaintiff's expert], relevant to the issue of invalidity of claims 8 and 19 of [defendant's] patent. Although there could perhaps be justification for awarding [plaintiff's] expenses as far back as the CAFC decision, the Court limits the sanctions to one half of the attorneys' fees for [two witnesses] incurred during the trial itself and all of [its expert's] fees related to the issue of invalidity. . . ."

Eko Brands, LLC v. Adrian Rivera Maynez Enterprises, Inc. et al, 2-15-cv-00522 (WAWD July 13, 2018, Order) (Donohue, MJ)