Loken-Flack, LLC et al v. Novozymes Bioag, Inc.

Filing 73

ORDER DENYING DEFENDANT'S MOTION FOR ATTORNEY FEES: Novozymes' Motion for Attorney Fees 68 is DENIED. by Chief Judge Marcia S. Krieger on 1/26/15.(msksec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 13-cv-01617-MSK-BNB
LOKEN-FLACK, LLC, a Colorado Limited Liability Company; and
LYNN LOKEN,
Plaintiffs,
v.
NOVOZYMES BIOAG, INC., a Delaware corporation,
Defendant.

______________________________________________________________________________
ORDER DENYING DEFENDANT’S MOTION FOR ATTORNEY FEES
______________________________________________________________________________
THIS MATTER comes before the Court on the Defendant’s Motion for Attorney Fees
(#68), the Plaintiffs’ Response (#71), and the Defendant’s Reply (#72).
The Plaintiffs asserted a claim for “correction of inventorship” on a patent held by the
Defendant Novozymes Bioag, Inc. (“Novozymes”). The Court granted summary judgment in
favor of Novozymes. In the instant motion, Novozymes seeks an award of attorney fees under
Section 285 of the Patent Act. The Plaintiffs oppose the Motion and request that the Court award
attorney fees in their favor for responding to Novozymes’ Motion.
Section 285 of the Patent Act provides that a court “in exceptional cases may award
reasonable attorney fees in patent litigation.” 35 U.S.C. § 285. Last year the Supreme Court held
“that 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.” Octane Fitness,
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LLC v. ICON Health & Fitness, Inc., 134 S.Ct. 1749, 1756 (2014). The determination of whether
a case is “exceptional” under § 285 is a matter of the Court’s discretion. See Highmark, Inc. v.
Allcare Health Management Systems, Inc., 134 S.Ct 1744, 1748 (2014) Among the factors the
Court can consider are “frivolousness, motivation, objective unreasonableness (both in the
factual and in the legal components of the case) and the need in particular circumstances to
advance considerations of compensation and deterrence.” See Octane Fitness, 134 S.Ct. at1756
n.6 (citing Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994)).
Here, Novozymes argues that this is an exceptional case because the Plaintiffs’ litigation
position was substantively weak under the governing law and facts of the case and the Plaintiffs
litigated the case in an unreasonable manner. In support of its first argument, Novozymes asserts
that the Plaintiffs’ litigating position was substantively weak because the Plaintiffs failed to
adequately support their contention that their alleged corroborating evidence could be legally
sufficient to support their key assertion that Mr. Loken was a co-inventor of the patent at issue.
In other words, Novozymes argues that the Plaintiffs’ claim was exceptionally weak because it
was based on nothing more than an inference that Mr. Loken was a co-inventor.
Although the Court concluded in its summary judgment order that the Plaintiffs had
failed to present adequate evidence to corroborate their claim that Mr. Loken was a co-inventor
by clear and convincing evidence, the Court is unpersuaded that that substantive weakness of the
Plaintiffs’ litigating position “stands out from others.” Here, the Plaintiffs’ relied upon
circumstantial evidence to corroborate their claim of co-inventorship. Circumstantial evidence
about the inventive process may be sufficient to corroborate a purported inventor’s testimony.
See Ethicon, Inc. v. U.S. Surgical Corp, 135 F.3d 1456, 1461 (Fed. Cir. 1998). Thus, although

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the circumstantial evidence presented by the Plaintiffs was insufficient to survive summary
judgment, it was not exceptional for the Plaintiffs to rely on such evidence to support their claim.
The Court also is unpersuaded that this is an exceptional case because the Plaintiffs
litigated the case in an unreasonable manner. Novozymes asserts that the Plaintiffs acted
unreasonably in three ways: (1) threatening sanctions against Novozymes “in an attempt to extort
an unsupportable and arbitrary $21.5M windfall”; (2) “improperly contact[ing] one of
Novozymes’ named inventions for a declaration and power of attorney favorable” to the
Plaintiffs; and (3) using the court system “to draw out Novozymes’ best arguments and obtain
factual information” in order to bolster their separate action before the U.S. Patent and
Trademark Office. After considering Novozymes’ arguments and reviewing the evidence
submitted by the parties in light of the factors identified in Octane Fitness, the Court concludes
that, although some of the Plaintiffs’ conduct does not present a model of professional and
prudent litigation, it does not rise to the level of unreasonableness necessary to support an award
of attorney fees under § 285.1
For the foregoing reasons, Novozymes’ Motion for Attorney Fees (#68) is DENIED.
Dated this 26th day of January, 2015.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge
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The Court also concludes that the Plaintiffs are not entitled to an award of their attorney fees
for opposing Nozoymes’ Motion. The Plaintiffs argue that Novozymes acted in bad faith and
should be sanctioned in order to “send a message.” The Court disagrees. The Court cannot
conclude that Novozymes’ request for attorney fees was in bad faith or sufficiently baseless to
warrant an award of attorney fees in the Plaintiffs’ favor.
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