By Dennis Crouch
Oplus Technologies, Ltd. v. Sears & Vizio (C.D.Cal.2014)
In an October 2013 summary judgment decision, Judge Pfaelzer found in favor of the defendants – holding that the Oplus asserted patents were not infringed (Patent Nos. 6,239,842 and 7,271,840) and also invalid as anticipated (Patent No. 6,239,842). That final decision is pending appeal at the Federal Circuit.
Most recently, the court denied Vizio’s motion for attorney and expert witness fees “pursuant to 35 U.S.C. § 285, 28 U.S.C. § 1927, and the Court’s inherent power.” However, that denial came only as part of a decision that walks through statements by Oplus and its attorneys (the Niro firm) that “were seriously contradictory and unreasonable” and their “manner and style” that were “offensive to the Court.” Particular noted misconduct included:
- Oplus delayed the litigation by strategically amending its claims to manufacture venue.
- Oplus misused the discovery process to harass Vizio by ignoring necessary discovery, flouting its own obligations, and repeatedly attempting to obtain damages information to which it was not entitled.
- Oplus used improper litigation tactics including presenting contradictory expert evidence and infringement contentions as well as misrepresenting legal and factual support.
However, the Judge Pfaelzer also found that (despite summary judgment) that Oplus’s claims were not “objectively baseless.”
Although the misconduct was serious in Judge Pfaelzer’s view one reason for not awarding attorney fees was that Vizio’s was also guilty of delay and avoidance tactics. And, the court found that the inconsistencies in Oplus position actually helped make the Summary Judgment decision easier – probably saving attorney fees.
Ray Niro submitted a letter to Judge Pfaelzer that likely helped sway her decision not to award fees. In the letter, Ray Niro’s letter Niro apologized for “the conduct of one of our young lawyers” and that “could be understood as being arrogant to and disrespectful to the Court.” Niro indicated he has “taken remedial action” and would monitor the lawyer’s conduct throughout the next year. Niro also indicated that – although not an excuse or justification – that the mother of the lawyer who had spoken harshly to the court had been critically ill on the day of the hearing and had died four days later.
The case is interesting as an added element to the ongoing debate on awarding attorney fees. Two patent law attorney fee cases are pending before the US Supreme Court and several related bills are pending in Congress. Here, Judge Pfaelzer had no problem identifying litigation misconduct but applied her discretion to rule that attorney fees were not appropriate. In essence, Pfaelzer began with the presumption that ordinarily no attorney fees should be awarded and then found that there were not sufficient reasons to move from that starting position. At least some of the congressional proposals shift the starting-position so that the ordinary rule would be an award of attorney fees unless there are sufficient reasons to not award fees. I would guess that this is one of the cases that would flip under the proposed rules.