Needless to say, a finding of exceptionality under 35 U.S.C. § 285 can have crippling consequences. Just ask Rembrandt Technologies, LP, which recently was slapped with an order to pay the prevailing defendants in a consolidated infringement action roughly $46 million in attorney fees and nearly $5 million in costs.
On April 7, 2016, Judge Barbara M. G. Lynn of the Northern District of Texas denied defendant Maxmind, Inc.’s Motion for Exceptional Case Determination and Attorneys’ Fees and Costs. In doing so, the court found that “Plaintiff’s litigation position was not frivolous or objectively unreasonable” because the “substantive law of Section 101 patent-eligibility has evolved since Plaintiff initiated this lawsuit.”
A district court in Delaware granted defendant Jack Henry & Associates’ motion for attorneys’ fees and ordered plaintiff Joao Bock Transaction Systems to pay $1 million in attorney’s fees under 35 U.S.C. § 285. The order came following the Federal Circuit’s affirmance of the district court’s order invalidating plaintiff’s online-transaction security patent as claiming only an abstract idea. In awarding the fees to Defendant, Judge Robinson stated that “[t]aking into account that patent cases are complex and patent litigation is an expensive proposition, nevertheless, the court will award attorney fees of $1,000,000 to account for the fact that plaintiff's ever changing litigation strategies (including its claim construction positions) created a tortuous path to resolution.”