Federal Circuit’s Per Curiam Affirmance of Noninfringement Finding Does Not Support Award of Attorneys’ Fees

The magistrate judge recommended denying defendant's motion for attorneys' fees under 35 U.S.C. § 285 following plaintiff's unsuccessful appeal of summary judgment of noninfringement. "[Defendant] makes much of the Federal Circuit's per curiam affirmance without opinion six days after the oral argument. Without more, the Court declines to interpret the summary affirmance as a silent statement by the Federal Circuit that [plaintiff's] infringement theory was objectively baseless. . . . This is especially true where, as here, the Federal Circuit held oral argument on the appeal."

Wi-Lan Inc. v. LG Electronics, Inc., et. al., 1-10-cv-00432 (NYSD May 10, 2013, Order) (Peck, M.J.).