By Dennis Crouch
Stragent, LLC v. Intel Corp., 11-cv-0421 (E.D. Texas). JudgeDykOpinion
Federal Circuit Appellate Judge Timothy Dyk has been sitting by designation as the trial judge in this patent infringement lawsuit over video compression technology. (U.S. Patent No. 7,302,102). A jury found Stragent’s two asserted patent claims both invalid and not infringed. And, apparently, Strategent chose not to appeal that determination.
The final issue left for Judge Dyk to decide then was attorney fees and the court has now denied Intel’s motion for fees.
The ordinary rule in American law is that each side pays its own attorney fees. For a successful defendant such as Intel here, the outcome of the lawsuit is likely still a seven-figure payout to its defense team (paid by the winning defendant). As an exception to the usual rule, the Patent Act provides that a district court judge may award attorney fees to the prevailing party in “exceptional cases.” Recently in Octane Fitness, the Supreme Court rejected the Federal Circuit’s prior strict standard and high-bar for exceptional case awards and instead put the determination within the discretion of district court judges.
Under Octane Fitness,
[An exceptional case] is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated . . . considering the totality of the circumstances . . . [and excising the court’s] equitable discretion.
Octane Fitness, LLC v. Icon Health & Fitness, Inc., 134 S. Ct. 1749 (2014). Despite the seeming wide decision making discretion, the Supreme Court also recognized that exceptional case awards should be “rare” and “uncommon.”
Although having a losing party is a prerequisite to an exceptional case finding, Judge Dyk here found that “the mere fact that the losing party made a losing argument is not [otherwise] a relevant consideration.” Rather, according to the opinion here focus should be on whether the arguments were “frivolous or made in bad faith.” That said, Octane does not expressly require bad faith or frivolous arguments, and that decision makes clear that exceptional case awards may be available at times when the losing parties actions are not sufficiently bad to warrant Rule 11 sanctions. A second point with regard to Rule 11 sanctions is that those sanctions tend to be focused on individualized frivolous or bad faith arguments made by parties while §285 fees are awarded with reference to the case “as a whole” and in considering “a totality of the circumstances . . . includ[ing] the conduct of the winning party.”
In considering the case at hand, Judge Dyk noted that Intel’s motion for fees “is primarily based on the fact that Stragent made losing arguments.” Although Judge Dyk agreed that Stragent’s case was “certainly a weak one,” he also noted that Intel failed to even move for summary judgment:
Stragent’s argument was certainly a weak one, but despite the alleged implausibility of Stragent’s position, Intel never sought summary judgment of non-infringement on the basis of the limitation at issue. This suggests that Intel did not always view Stragent’s infringement position as frivolous. There is little injustice in forcing Intel to bear its own attorney’s fees for defending a claim it did not challenge on summary judgment. Disposing of a frivolous claim on summary judgment would avoid a trial and have the effect of saving both parties a substantial portion of their litigation costs.
Motion for fees denied. Intel is unlikely to overturn this on appeal.
= = = = =
An interesting tidbit from the Intel’s briefs: “Intel spent approximately $9 million in legal costs.” Wow! How on earth do you spend $9 million defending a three-patent case asking only for a reasonable royalty. (By trial, the case had been narrowed to only be challenging two claims found in one of the patents.) I would really love to see the accounting for that $9 million. Of course the docket does list 17 attorneys on Intel’s side. . .
Claim 1: A video compression method comprising: compressing a segment of an input signal using an initial quality setting; calculating a data rate for an output signal that would result from adding the compressed segment to the output signal; and in response to the calculated data rate exceeding a target rate, recompressing the segment using an automatically-selected quality setting that produces a lower data rate than the calculated data rate when the recompressed segment is added to the output signal.
The other claims are similar. That seems rather abstract. How did this pass muster under 101? I am missing something here, right?
GD, applying mathematics to useful applications is patentable. Diehr.
Applying compression to video signals, in and out, certain presents no 101 problem.
> An interesting tidbit from the Intel’s briefs: “Intel spent approximately
> $9 million in legal costs.” Wow! How on earth do you spend $9 million
> defending a three-patent case asking only for a reasonable royalty
It never ceases to amaze me the level of naivete expressed by academics when it comes to patent litigation. A “reasonable royalty” does not mean that the plaintiff sought a royalty that was in any way “reasonable,” it’s simply a label for the relief sought. Your article fails to mention the amount this “reasonable” royalty was. Spending $9 million defending a patent case is not excessive when the “reasonable royalty” is hundreds of millions of dollars with a double-digit going forward royalty demand. I’ve been in cases where similar amounts were sought, and at those levels, you spare no expense. I’ve invalidated patents where I had to reconstruct third party Digital Equipment Corporation system prior art from 20 year old backup tapes that I subpoenaed from a third party, and had to hire investigators to get compatible and contemporaneous hardware from that time period, and find people who could authenticate it. A costly endeavor, but ultimately successful in a billion dollar case, but something people like Dennis would say is “excessive.” You would never do this in a case seeking what is a truly ‘reasonable’ royalty, but in the world of patent assertion entities (who have no other business and no concern with taking consistent positions across assertion and defense), rarely do you see a royalty request that is in any way ‘reasonable.’
But I agree with the other comment contributors, the reasoning of the decision is bizarre and results-oriented. Most people in the patent litigation bar are giving very little credence to early decisions like this because judges and lawyers are still too accustomed to the old days when attorney fee recoveries were reserved only for the most frivolous of cases. It will take several years before we see decisions that reflect the reality of the Octane Fitness standard and start following the patterns you see with copyright decisions (where fee awards are not common, but far more frequent than you’d ever see in patent cases).
Just an additional note that the infringement damages statute, Section 284, does NOT just award a “reasonable royalty.” It awards damages “adequate to compensate for the infringement but in no event LESS THAN a reasonable royalty,” plus interest and costs. In other words “reasonable royalty” is NOT a cap, it is merely a mandatory minimum! With a lot of rope for a jury to swing up on.
Dennis: I would really love to see the accounting for that $9 million. Of course the docket does list 17 attorneys on Intel’s side. . .
Patent trials can get really expensive, really quickly. It’s a lot like putting together a theatre production except that the investors stand to lose a lot more than their investment. For that reason, there are layers and layers of axx-covering involved. You hire the best trial attorneys and experts (the actors) within your budget, and the rest of the crew (the associates and the paralegals) work day and night to make those people look as awesome as possible.
No doubt (especially in hindsight) it would be possible to achieve the same result with fewer people (“get rid of those understudies and Bruce can do make-up and costumes by himself, can’t he?”) and fewer costs (“let’s ditch the fireworks scene … too little bang for the buck”). It’s just riskier. But if you can afford to mitigate the risk, why wouldn’t you? Especially where the penalty for failure can be enormous.
The better question to ask is: how much money did these Texas attorneys make asserting this j nk? Because pretty much anybody with a broad patent and nothing to lose except some time can be a major pr*ck if that’s how to choose to live their lives. That’s pretty darn easy.
This decision has some level of absurdity to it.
1. Originally sued for infringement under 3 patents, a mere two claims even got so far as trial. What the heck happened? Why is Intel stuck with the costs associated with two patents that couldn’t even get to trial?
2. The patent owner then didn’t just lose, but really lost: invalidity and non-infringement on the TWO remaining claims. How many cases proceed to trial in the ED of Texas where the claims are both invalid and not infringed. Seems pretty rare.
3. Stragent didn’t sue Intel in a targetted litigaiton. It sued lots of people: link to dockets.justia.com.
I’m all for keeping the American rule. But then, let’s do the same thing on the other side for willful infringement: unless it’s exceptional, no treble and no attorney’s fees. Otherwise, patent owners like Stragent have an incentive to exploit exorbidant litigation costs and risk of treble damage to extract nuisance suits without much risk themselves.
Congratulations patent system, you needlessly cost the system.
// I’m getting more cynical.
Intel can and should appeal and if the Fed Circuit backs Dyk up then take it to the Supreme Court for another Fed Circuit smackdown.
Originally sued for infringement under 3 patents, a mere two claims even got so far as trial. What the heck happened? Why is Intel stuck with the costs associated with two patents that couldn’t even get to trial?
Because Intel spent a lot of money defending itself against a bunch of s c u m ba gs in the banana republic of East Texas. And Intel played nicely which apparently makes them less deserving of an award of attorney fees. Of course none of that makes sense but, hey, the worst thing ever would be for the patent world’s biggest crybabies to pay a little penalty for asserting complete j nk of the lowest order.
Oh yes because everything that has anything to do with a patent or patent application that is of the smelly arts is an outrage.
Right Milly? Your math is broken. Milly’s Math needs to be readjusted.
Milly, how do you think you brain/mind isn’t math? You are math.
is not.
how do you think you brain/mind isn’t math?
How do you think you leg/arm isn’t planet?
Fun game.
Uh huh, fun game except your own logic says you are math.
Milly says that everything that computes is math. Milly computes. Therefore, Milly is Math. And Milly’s Math needs some new equations.
Please try to stay focused if you decide to respond.
your own logic says you are math
Hmm. I know that my own logic said it was time for me to eat a yummy sandwich. I must have missed this “you are math” business but maybe I’ve got my stereo turned up too loud.
As expected. When Milly’s Math loses, expect massive smoke machine action. Just such a cute answer Milly.
“Intel can and should appeal and if the Fed Circuit backs Dyk up then take it to the Supreme Court for another Fed Circuit smackdown.”
Uh the USSC just got done stating it was up to his discretion. And this is definitely not an abuse of discretion.
definitely not an abuse of discretion.
Seems like an abuse of discretion to me when the Judge declares that (allegedly) “professional” conduct by the winning party “weighs against” a finding of attorney fees in a “certainly weak” case (and that “case” is just the tiny fraction of claims that ended up in trial)?
Note: §285 fees are awarded with reference to the case “as a whole” and in considering “a totality of the circumstances . . . includ[ing] the conduct of the winning party.”
The winning party here was “professional” and didn’t waste Dyk’s time with endless filing of motions for sanctions (something it certainly could have done). How did Dyk reward the winner’s conduct here? He didn’t. Instead, he punished the winning party for that conduct. It’s nonsense.
So Dyk was the trial judge and said it didn’t seem extraordinary to him. Please give a real reason other than all patents not of the smelly arts are ev1l.
Come on Milly try to stay focused here. We know that your math is weak, but try Milly’s Math to come up with at least one reason other than they are ev1l.
RQ / HD
YA / AI
The acronym RQ / HD has been explained many times: Red Queen / Humpty Dumpty.
Care to explain YA / AI…?
“The acronym RQ / HD has been explained many times: Red Queen / Humpty Dumpty.”
And we should all pay attention to anon’s psychopathisms because he says so!
Cute – but way besides the point there 6.
But you already knew that, didn’cha?
😉
Gl getting cert on that.
Agreed, MM. Although on appeal I might frame the issues a wee bit differently than you have suggested. Your line ” s c u m ba gs in the banana republic of East Texas” certainly catches the eye, but other than that it has little to recommend it for an opening line on an appeal brief.
The issue I see is that there is no possible legal or logical connection between the decision not to file a motion for SJ and determining whether a case meets the statutory criterion of “exceptional.” The judge has no right to deny statutory damages based on his personal opinion of how the D should have run its case. To conclude that b/c D did not seek SJ means D did not view the case as frivolous, is as bizarre as anything that has come out of EDTX. Fracking fluids must be getting into the water down there.
Defendants have the right to design their own defense strategy however they see fit. If it doesn’t include a motion for SJ, then that is none of the judge’s business because forgoing SJ is not, so far as I read the statute, anticipated by Congress as a waiver of the right to seek attorneys’ fees. Dyk’s position is absolutely ludicrous. Dyk is just annoyed he had to sit on a jury trial. It’s beneath him.
If the D recognized from the get-go what a bogus case it was and made the tactical decision to forgo SJ and take it to a jury so they could spank the P with heaps of legal fees, then good on them. They made the right call, IMO. Seems to me that’s why the statue was written — to spank these kinds of litigious idgits.
Given that only the outcome can determine whether or not a case is exceptional, this one certainly was. What the judge should have done was take evidence on the amount of fees and decide what a reasonable fee award would be in view of the complexity of the issues raised in the complaint, not in view of the D’s defense strategy. At that point perhaps it would be within the purview of the judge’s discretion to limit the fees on the grounds that the case could have been resolved at SJ. But for Dyk to deny the motion for fees altogether seems to me a very valid issue for appeal.
Dyk was just being lazy and punted the most important part of the case from a precedential POV. Hardly the first time.
Babel Boy: “The judge has no right to deny statutory damages based on his personal opinion of how the D should have run its case.”
Huh?
The issue was whether the case was exceptional. Not even filing a SJ motion indicates there were material issues of fact disputed.
Such cannot be a exceptional case.
The point Ned is that a determination of “exceptional case” does not rest on whether or not the Defense choose the legal tactic of attempting a SJ motion.
It is perfectly plausible that an exceptional case exists regardless of whether or not the Defense decided to make such a filing.
Ned, ya’ missed my drift.
What I was trying to say was that the decision not to request SJ does not say squat about how a party views the merits of a case. I know of no statute, no federal or state rule of procedure, and no common law requirement [other than Dyk’s] that says: If you think there are material issues in dispute, then you have to file a motion for SJ.
Not only is there no free-king requirement to file for SJ, no presumptions can be drawn by a court as to why a party did not seek SJ. Dyk’s opinion to the contrary is as helpful as pigeon pooop on the pump-handle in developing this aspect of the AIA.
I’m willing to wager my last week’s salary (pre-tax) against yours that Dyk will be reversed if the issue is appealed.
Babel, from the big picture point of view, let’s take contract damages for a moment. There is a doctrine that the non breaching party has a duty to act to minimize his damages if at all possible. A breach does not give the injured party carte blanche to maximize damages with the expectation that he will be fully compensated for all voluntary damages he incurs.
An exceptional case has to mean that, absent litigation misconduct, that there is something definitely wrong either with validity or with infringement. Such cases should be resolved in summary judgment if at all possible in order to minimize the wasting of both the judicial resources and attorneys fees for all parties. Otherwise, the party having an all but slamdunk case can pour it on with the expectation that they can be compensated for all the expenditures they are making that are really unnecessary. They are probably doing it to punish the plaintiff for being the case in the first place, the teach them a lesson that they will never forget, and to also teach others suing this particular company that if you sue me you will be in for a world of hurt regardless of the merits of the case.
Nicely stated Babel.
If only people would express their opinions and “policy” table pounding as well as this, conversations could avoid the CRP-run away-CRP again cycle.
ThnkYew
BB: To conclude that b/c D did not seek SJ means D did not view the case as frivolous, is as bizarre as anything that has come out of EDTX.
No doubt.
And what makes Dyk’s opinion doubly ludicrous is that he further punishes the defendants for “minimizing disputes over collateral issues throughout the case.” In other words, the defendant here was damned if it did, and damned if it didn’t. Intel could surely have kicked up a haystorm of “collateral issues” throughout the case, seeking sanctions for all kinds of frivolous assertions made by Stragent. But it didn’t. According to Dyk, that kind of behavior “weight against” finding the case exceptional. And lest we forget: this was a “certainly weak” case in Dyk’s opinion even after the plaintiff dropped many of its undoubtedly frivolous claims that were initially asserted only so a jury could find the remaining j nk both invalid and not infringed!
Dyk writes: Intel argues that Stragent delayed in disclosing certain positions and in abandoning certain other claims and positions, and that this constituted litigation misconduct. It did not.
That’s the analysis we get. Do we need to look at the “certainly weak” claims which made it to trial and compare them to the j nk that was asserted initially? Why was that other j nk asserted at all? Was that other j nk also asserted against Intel’s customers? Some money was surely spent convincing Stragent to drop those claims which were asserted for one reason: to force Intel (and its customers who were directly sued) to spend money dealing with them.
Intel should appeal this mess because Dyk basically just drove a truck through the statute.
Intel did not even file a SJ motion.
Dyk pointed to that too. But, that line of reasoning strikes me as odd too. I get that the he’s trying to make this point: if Intel thought the case was so frivolous, Intel should have at least filed for SJ.
Let’s assume something: Intel HAD filed for SJ. What then? Filing summary judgment would have entitled it to attorneys’ fees, but not filing it deprives it? Would the outcome of SJ mattered?
I should look, did the plaintiff file for SJ? If not, the plaintiff pursued a litigation that it new was so bad that it didn’t bother to file for SJ?
And Dyk’s reasoning came out that it could have avoided trial costs if it had. So is the judge saying it would have granted SJ? But even if you wanted to make the assumption, can I assume it would have been within his discretion to give fees back all the way to SJ?
Listen, the patent is presumed valid. Intel did not have a basis for a SJ motion of non infringement.
I don’t see any basis whatsever this could be deemed an exceptional case.
Sure you do, Ned.
It may not be a legally valid basis, but that has never stopped this person before.
Let me give you a hint: RQ / HD.
If the invalidity was so damned apparent, why did it cost $9 million dollars to prove it???
Good question (specifically, I do not pass judgment on the merits of any possible answer).
And such a question should be had by Intel with its counsel.
Would LOVE to see that answer.
“How many cases proceed to trial in the ED of Texas where the claims are both invalid and not infringed. Seems pretty rare.”
mmm –
I saw an EDTX trial with a strong infringement argument, where the jury found the patents both invalid and not infringed. My understanding from talking to the lawyers is that their post-trial discussions with the jury revealed some confusion in that they believed an invalid patent could not, by definition, be infringed.
I wonder how much the $9 million expenditure contributed to Judge Dyk’s finding statement that “Intel did not always view Stragent’s infringement position as frivolous.”
Not sure if that played into the decision at all (but it is an interesting point).
See the decision itself:
“At this point, Intel has only asked the court to determine Stragent’s liability for fees; it states that, if fees are awarded, it will later file a specific request detailing the amount of its fees. Am. Mot. for Atty’s Fees 3; see Fed. R. Civ. P. 54(d)(2)(C) (“The court may decide issues of liability for fees before receiving submissions on the value of services.”).“
I wonder how much the $9 million expenditure contributed to Judge Dyk’s finding statement that “Intel did not always view Stragent’s infringement position as frivolous.”
Assuming that it did contribute to Judge Dyk’s finding, what on earth is the take-away message from that? “Don’t spend too much money defending yourself or you’ll be blocked from obtaining any award of attorney fees”? That makes zero sense.
More weirdness in Dyk’s opinion:
Intel also contends that Stragent’s position on the validity of the asserted claims was frivolous. In hindsight, Stragent’s validity argument was certainly not a winning position….
Pretty sure that was the defendant’s position all along. It was only “hindsight” to the plaintiff.
counsel for both sides were cooperative in reaching stipulations and minimizing disputes over collateral issues throughout the case. …Such professionalism is to be commended, and it weighs against a finding that an award of attorney’s fees is warranted
Got that? Playing nice against a plaintiff wielding a j nk patent and avoiding unnecessary disputes weighs AGAINST awarding attorney’s fees to the defendant. What the he l l ?!?!
Only Stragent’s infringement allegations under claims 12 and 16 of the ’072 patent proceeded to trial.
Say, Judge Dyk, can you remind everyone what happened to the claims that were originally asserted but were deemed by this hyper aggressive s c u m b a g plaintiff to be unworthy of taking to trial? Were they also merely “weak” and “allegedly frivolous” or were they quite a bit worse than that? I’m guessing it cost some money to convince the plaintiff to withdraw those claims from the case.
boo hoo hoo … somebody take your lunch money?
somebody take your lunch money?
Nope. Just pointing out some oddities in Judge Dyk’s opinion. If I was Intel, I’d ignore Dennis’ prediction and take some of this on appeal.
In particular, the idea that defendant’s who “play nice” with plaintiffs who’s cases are “certainly weak” (if not frivolous) should be punished for “playing nice” is absurd.
The oddity is your spin, but. um, “thanks for playing”
Just pointing out some oddities in Judge Dyk’s opinion.
I don’t think ‘oddity’ means what you think it means. You didn’t identify anything “strange or unusual” about Dyk’s opinion. You just identified things you disagreed with and/or used Dyk’s statements of fact as a platform to your (daily, twice-daily?, thrice-daily?) rant.
Why let facts get in the way of spin?
You didn’t identify anything “strange or unusual” about Dyk’s opinion.
That’s your opinion, Slo Mo.
Try explaining to everyone why defendant’s should be punished for “playing nice” with plaintiffs asserting “certainly weak” cases.
Try explaining to everyone why defendant’s should be punished for “playing nice”
Easy … plaintiffs were rewarded for playing nice as well. God … can you come up with a harder task than that?
with plaintiffs asserting “certainly weak” cases
You should explore the difference between weak and frivolous — perhaps you might learn something. Scratch that, I think “learning” is something outside your capabilities.
Maybe if you keyed on the part in the decision in which the law is discussed, you might not be in such ‘utter disbelief.’
To wit:
“Third, the mere fact that the losing party made a losing argument is not a relevant consideration; rather, the focus must be on arguments that were frivolous or made in bad faith. See id. at 1753 (fee awards are not to be used “‘as a penalty for failure to win a patent infringement suit’” (quoting Park-In-Theatres, 190 F.2d at 142)). To impose fees on a party simply for making losing arguments would be the same in effect as fully adopting the English Rule, whereby the losing party always pays the winner’s fees.”
Case 6:11-cv-00421-TBD-JDL Document 364 Filed 08/06/14 P 6-7 of 11
B-b-b-but that’s “just absurd”
/eye roll
Maybe if you keyed on the part in the decision in which the law is discussed, you might not be in such ‘utter disbelief.’
Or I could “key in” on the parts of the decision that I did, in fact, “key in” on because those were the parts which I found most troubling. And I could clearly indicate those specific parts so everyone can see exactly what I’m referring to.
See how that works, Billy? Try it sometime.
Pretty sure that Octane Fitness is the controlling law here, not Park-in-Theatres. Nothing in Octane Fitness suggests that attorney fees can be awarded only for “frivolous” and “bad faith” claims. Do you recall what Octane Fitness was about?
“were the parts which I found most troubling”
So decrees the Red Queen / Humpty Dumpty as the law is parsed and critical parts thrown away (to ease Malcolm’s “troublings”)
Yes, Milly, I see how you work. Here’s hint: that is not how the law works.
how the law works.
You’re pretty much the last person on earth to be lecturing people on “how the law works,” Billy.
Let me know if you need me to explain to everyone why that is the case.
“lecturing…”
Nice non sequitur, from the guy who does not think that intellectual honesty is required because this is a mere blog….
Your, um, “explanations” lack all credibility. Let me know if you need me to explain that to you why that is the case.
med-click vap1d response from the short script.
Oh how very Malcolm of you.
Got that? Playing nice against a plaintiff wielding a j nk patent and avoiding unnecessary disputes weighs AGAINST awarding attorney’s fees to the defendant. What the he l l ?!?!
Read the section you quoted again:
As this court remarked more than once, counsel for both sides were cooperative in reaching stipulations and minimizing disputes over collateral issues throughout the case. …Such professionalism is to be commended, and it weighs against a finding that an award of attorney’s fees is warranted (emphasis added)
It had nothing to do with punishing the winning defendant for “playing nice.” The point was that the losing plaintiff was cooperative, and that argues against an award of attorney’s fees. Read the paragraph above it, where the judge points out that the plaintiff did not engage in litigation misconduct or bad faith discovery.
The defendant “never sought discovery sanctions … or even a court ruling limiting the scope of discovery.” Pretty hard to turn around at the end of the case and argue that the plaintiff engaged in such bad faith discovery that an award of attorney’s fees was warranted. And indeed the judge didn’t buy it.
James,
Malcolm won’t let facts get in the way of what he considers to be a good rant.
JD: It had nothing to do with punishing the winning defendant for “playing nice.” The point was that the losing plaintiff was cooperative
Except that’s not “the point” that Judge Dyk made. He didn’t single out the plaintiff’s behavior. He pointed out that both sides were “professional” and that this fact weighed against an award of attorney fees. Note: it didn’t leave the scale unchanged or tilt the scale in favor of awarding fees to the winning party. In Dyk’s mind, it tilted the scale away from awarding attorney’s fees to the winner. Why?
There are other statutes and rules for dealing with bad, unprofessional behavior by attorneys. That’s not what Octane Fitness was about.
This was not a “close case” by any stretch of the imagination and that’s not even taking into account the patents and claims that were initially asserted by these “professional” j nk patent wielding s cu m bags.
Dyk’s opinion seems to suggest that if you expect to be awarded atttorney’s fees when you win a “certainly weak” patent case that the “professional” plaintiffs insisted on pressing forward with (after dropping all the frivolous j nk they first threw at you), then you are better off filing motions for sanctions (wherever such motions are not themselves sanctionable) instead of “playing nice.” Otherwise Dyk will question your veracity and punish you.
The built-in assumption Dyk is operating under is that those “professionals” in the banana republic who make extraordinary amounts of money asserting this j nk deserve to continue making that living. Because, hey, they agreed to drop those incredibly cr ppy claims they first threw at you … after you spent tons of money dealing with that incredible cr p. Nice racket.
Much more of this and maybe we’ll see Dyk taking one of those “Rader vacations” from the bench.
“ Why?”
Asked and answered – by several people now Malcolm.
Pay attention dude.
Asked and answered
Nobody’s answered the question, Billy.
Keep digging.
Pull your fingers out of your ears, open your eyes and pay attention Malcolm.
JD The defendant “never sought discovery sanctions
Perhaps the defendant was trying to be “professional” and not raise unnecessary disputes in the expectation that when it won this “certainly weak” case it would recover some of its attorney fees.
Instead, the defendant was punished.
punished….
Because he did not get exceptional fees when he did not deserve them, he is “punished”
Now that is a weak argument.
ecause he did not get exceptional fees when he did not deserve them, he is “punished”
Now that is a weak argument.
Indeed, Billy. Unfortunately for you, that’s your argument, not mine.
I don’t expect you to be able to understand that, of course, given your long-recognized difficulties with the English language.
the losing plaintiff was cooperative, and that argues against an award of attorney’s fees.
Pressing a “certainly weak” case — with the claims both invalid and non-infringed — all the way through trial is “cooperative”?
Only in the bizarro world of our broken patent system.
Try reading the entire case Malcolm, not just the parts you parse that make you feel warm and fuzzy. Include the parts directly on point that defeat your rant.
Have a nice day.
Given the track record of patents dragged back to PTAB for IPR’s and such, that would seem to be the venue of choice for the accused infringer, instead of District Court litigation.
Will these big attorneys fees bills continue in the future, now that accused infringers can run to the PTO for another look at the patent and try to kill it?
The big fees are now going to the attorneys that are doing the IPRs in our registration system.