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Posts Tagged ‘Octane Fitness’

Baseless Fishing Lure Claims Merit Fee Award

October 19th, 2015 Alexander No comments

Fishing gear maker Normark said it deserves attorneys’ fees in patent litigation brought by rival Pure Fishing, telling a Federal Circuit panel Pure Fishing knew it had baseless claims before filing infringement suits over fishing lines and lures.

Pure Fishing originally brought the case against Normark, a subsidiary of Rapala Inc., in 2010, alleging violations of two patents.

Now, the two sides are fighting over attorneys’ fees in the wake of the U.S. Supreme Court’s Octane Fitness decision after a district court invalidated one of Pure Fishing’s patents and Pure Fishing dropped the claims on the other. Normark was awarded fees on the dropped claims, but not on those for the invalidated fishing line patent.

Normark attorney of Dorsey & Whitney LLP argued that Pure Fishing should have to pay for attorneys’ fees on claims for both patents. “They knew from the beginning they had no claim for validity,” he stated.

Normark argued that Pure knew its claims on both patents were unreasonable and that U.S. District Judge Cameron McGowan Currie abused her discretion in denying the motion for attorneys’ fees on the fishing line patent.

According to Pure, Judge Currie had on initial review found that Pure Fishing had a reasonable basis for bringing the case, but that basis only became unreasonable after a 2011 Markman hearing introduced the word “average” to describe the composition of polymers in the lures and made it impossible for the Normark products to infringe. “The first time through, the court said that was a reasonable argument. The second time through, not so much,” Pure said.

After that hearing, Pure Fishing decided to voluntarily dismiss the case, a move that was later used against it in fee litigation.

“And yet, because Pure Fishing did the right thing, the voluntary dismissal, the court ruled that Normark was entitled to fees,” Pure said.

For more information, see Law360.

Categories: Intellectual Property


Patent Suit Filings Continue On Record Pace

July 26th, 2015 Alexander No comments

More than 3,100 new patent cases have been filed in federal court so far this year, a record-breaking number that could put patent filings in 2015 at an all-time high.

Legal analytics firm Lex Machina reported the first six months of 2015 were the busiest first-half-year period ever for patent litigation.  If filings continue at this rate, they would surpass the 6,000 mark by years end and top the 2013 record total.

Owen Byrd, Lex Machina’s general counsel, asserts that while the Patent Trial and Appeal Board has grown in importance since it opened for business in 2012, the numbers show that the district court remains the go-to venue in patent disputes.

“Federal courts continue to be critical forums for resolving patent disputes,” he said.

The potentially record-breaking numbers are a reversal from 2014, when filings dropped 40 percent in September compared to the year before. Experts at the time speculated that more plaintiffs might be opting not to file suit in the wake of the U.S. Supreme Court’s ruling in Alice, which held that abstract ideas implemented using a computer are not eligible for a patent.

Michael Sacksteder of Fenwick & West LLP also pointed to the Octane Fitness ruling as one that may have concerned patent owners, since that case made it easier for lower courts to require the losing party in patent cases to pay their opponents’ fees.

“I think we’re still seeing a lot of patents found invalid under Alice and seeing more fee awards than before,” he said. “But these entities that own these patents own these assets, and if they’re not doing anything with them, they’re definitely not getting anything out of them.”

Further, only 15 companies accounted for just more than 40 percent of all the cases filed in June and led by patent holding company Oberalis LLC, which filed 50 lawsuits, while taking on big name retailers like Toys ‘R’ Us, Macy’s Inc. and Petco Animal Supplies Inc.

The overall industry boom comes as lawmakers continue to debate legislation that proponents say will curb abusive patent litigation and reign in what some have called an abuse of the patent system.

For more information, see Law360.

Categories: Uncategorized


Bad Lawyering Is Not Misconduct

June 30th, 2015 Alexander No comments

The Federal Circuit recently vacated a ruling that Cincinnati Sub-Zero Products Inc. was not entitled to attorneys’ fees after it defeated allegations that it infringed a patent for temperature-controlled blankets.

A three-judge panel reversed a portion of U.S. District Judge William Skretny’s denial of Sub-Zero’s motion for attorneys’ fees from Gaymar Industries Inc. that was based on purported misconduct by Sub-Zero. The Federal Circuit stated that a lower court incorrectly determined that sloppy lawyer work qualified as litigation misconduct that barred the award.  Specifically, the Federal Circuit concluded that the instances of Sub-Zero’s supposed litigation misconduct were merely poorly presented arguments.

The lower court had ruled that although Gaymar’s suit asserted a patent that the U.S. Patent and Trademark Office ultimately found to be invalid, it was not objectively baseless. The lower court then cited Sub-Zero’s own litigation misconduct as a basis for concluding that the case wasn’t so exceptional as to warrant fees under the framework established by the U.S. Supreme Court’s April 2014 Octane Fitness ruling.

“The examples cited by the district court — whether considered in isolation or in the aggregate — amount to sloppy argument, at worst,” the Federal Circuit said. “While such sloppiness on the part of litigants is unfortunately all too common, it does not amount to misrepresentation or misconduct.”

“In view of the serious consequences of a finding of misconduct, it is important that the district court be particularly careful not to characterize bad lawyering as misconduct,” they added.

The Federal Circuit said the examples cited by the lower court “without question … could be properly characterized as overstatements,” but they never rose to the level of misrepresentation or litigation misconduct.

Because none of the examples constituted litigation misconduct, the Federal Circuit said, the case needs to be remanded for reconsideration of Sub-Zero’s fee request under Octane Fitness. In April 2014, the U.S. Supreme Court issued its decision in Octane Fitness LLC v. ICON Health & Fitness, which made it easier for courts to order losing parties in patent suits to pay the prevailing party’s attorneys’ fees.

For more information, see Law360.