Precision Links, Inc. v. USA Products Group Inc. et al
Filing
99
ORDER granting 93 Motion for Attorney Fees. Defendants shall submit a fee petition within (14) days. Signed by District Judge Martin Reidinger on 7/13/2011. (Pro se litigant served by US Mail.) (tmg)
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL CASE NO. 3:08cv576
PRECISION LINKS INCORPORATED, )
)
Plaintiff,
)
)
vs.
)
)
USA PRODUCTS GROUP, INC. and
)
HOME DEPOT U.S.A., INC.,
)
)
Defendants.
)
_________________________________
)_
ORDER
THIS MATTER is before the Court on the Defendants' Motion for
Costs and Attorneys’ Fees [Doc. 93].
I.
PROCEDURAL BACKGROUND
This is an action for patent infringement involving U.S. Patent No.
5,673,464 (“the ‘464 Patent”). The invention disclosed in the ‘464 Patent
relates to a “Cargo Securement System and Tie Down Strap,” which is
essentially a tie-down strap used to restrain cargo during transport.
Plaintiff Precision Links Incorporated is the owner of the patent-in-suit and
the manufacturer of the adjustable tie-down strap that is claimed to be
covered by the Patent. [Doc. 1 at ¶8]. Defendant USA Products Group,
Inc. (“USA Products”) is alleged to import the CARGO BOSS cargo strap
(“the accused strap”). [Doc. 1 at ¶15]. USA Products is alleged to have
sold the accused strap to Defendant Home Depot USA, Inc. (“Home
Depot”), which is alleged to have sold the accused strap in several of its
stores. [Doc. 1 at ¶15].
The Plaintiff initiated this action against the Defendants on December
15, 2008, asserting a claim for infringement of the ‘464 Patent (Count One)
and a claim for unfair and deceptive trade practices under N.C. Gen. Stat.
§ 75-1.1, et seq. (“Count Two”). [Doc. 1]. The Plaintiff alleged literal
infringement of Claims 1, 2, and 4 by a single Accused Strap and of Claims
1, 2, 3, 4, 6, 7, and 8 by use of two of the Accused Straps together. [Doc. 1
at ¶¶ 17, 18]. Claims 1, 6, and 8 are independent claims. Claims 2, 3, 4,
and 7 are dependent claims of Claims 1, 6, and 8.
On February 27, 2009, the Defendants moved to dismiss Count Two
for failing to state a claim upon which relief could be granted. [Doc. 14].
On March 25, 2009, the Court granted the Defendants’ motion and ordered
an answer to be filed by April 8, 2009. [Doc. 18]. The Defendants filed
their Answer as instructed, denying liability and asserting counterclaims for
declaratory judgments of non-infringement and invalidity. [Doc. 20].
2
Thereafter, the Court entered a Pretrial Order and Case Management Plan
[Doc. 24], setting certain scheduling deadlines and establishing a claim
construction schedule. [Doc. 24].
On May 19, 2009, the Plaintiff filed a motion for a preliminary
injunction [Doc. 25], but this motion was stricken due to its failure to comply
with the type requirement and page limitation set forth in the Pretrial Order
and Case Management Plan. [Doc. 37]. The Plaintiff subsequently re-filed
its motion in conformity with the type requirement and page limitation on
June 16, 2009. [Doc. 38]. The Court denied the Plaintiff’s request for
preliminary injunctive relief on September 22, 2009. [Doc. 46].1
On May 28, 2009, the Defendants moved for entry of default against
the Plaintiff on the Defendants’ counterclaims. [Doc. 32]. Finding the
Plaintiff’s failure to answer the counterclaims “to be more of a technical
oversight than a failure ‘to plead or otherwise defend’ the action,” [Doc. 41
at 4], the Court denied the Defendants’ motion on July 2, 2009. [Id. at 5].
In December 2009, the parties moved for construction of the claims.
[Docs. 52, 55]. On June 10, 2010, the Court held a claim construction
1
Following the entry of this Order, the Defendants moved for summary judgment
based on the preliminary claim construction that the Court performed in denying
Plaintiff’s request for injunctive relief. [Doc. 48]. The Defendants’ motion was denied
without prejudice as premature. [Doc. 51].
3
hearing. On June 17, 2010, the Court issued its Claim Construction Order
construing the terms of the ‘464 Patent. [Doc. 71]. In light of the Court’s
claim construction ruling, the Defendants renewed their motion for
summary judgment on June 30, 2010. [Doc. 72]. Citing the parties’
settlement negotiations, the Plaintiff filed a consent motion for an extension
of time to respond to the summary judgment motion [Doc. 77], which was
granted. On July 23, 2010, the Plaintiff filed a response to the summary
judgment motion, noting its agreement with the Defendants “that the claim
construction entered by the Court clearly excludes the accused straps from
coverage by” the ‘464 Patent. [Doc. 78 at 1]. The Court therefore entered
summary judgment in favor of the Defendants on August 3, 2010. [Doc.
80].
On August 10, 2010, the Defendants, with the consent of the Plaintiff,
filed a motion for an extension of time to file a motion for costs and
attorneys’ fees. [Doc. 81]. On August 11, 2010, the Court allowed a
limited extension, giving the Defendants until sixty days after entry of
Judgment to file their motion. In the event that a notice of appeal was filed,
the Court instructed the Defendants to seek an additional extension of this
deadline. [Doc. 82].
4
The Plaintiff filed a Notice of Appeal to the Federal Circuit on
September 7, 2010, 35 days after entry of judgment. [Doc. 83].
On September 30, 2010, the Defendants filed another consent
motion for an extension of time in which to file their motion for fees and
costs. [Doc. 87]. On October 1, 2010, the Court granted the Defendants’
motion and extended the deadline for filing such motion to sixty days after
resolution of the Federal Circuit appeal. [Doc. 88].
The Defendants moved to dismiss the Plaintiff’s appeal in the Federal
Circuit on the grounds of untimeliness. In response to this motion, the
Plaintiff filed a “motion for miscellaneous relief” in this Court, asking the
Court to characterize Plaintiff’s July 23, 2010 summary judgment response
as a notice of appeal. Alternatively, the Plaintiff moved the Court to amend
its August 11, 2010 Order to explicitly extend the time for filing an appeal or
to treat the Plaintiff’s Notice of Appeal as a motion for extension of time in
which to file a notice of appeal. [Doc. 89].
On December 8, 2010, the Federal Circuit dismissed the Plaintiff’s
appeal as untimely. Precision Links Inc. v. USA Prods. Group, Inc., No.
2010-1538, 2010 WL 5080939 (Fed. Cir. Dec. 8, 2010). Thereafter, this
5
Court denied the Plaintiff’s motion for miscellaneous relief as moot. [Doc.
92].
On February 7, 2011, the Defendants filed the present motion for an
award of fees and costs, arguing that this case is “exceptional” within the
meaning of 35 U.S.C. § 285. [Doc. 93]. The Plaintiff filed a response
opposing the Defendants’ motion on February 25, 2011. [Doc. 97]. The
Defendants filed a reply on March 7, 2011. [Doc. 98].
Having been fully briefed, this matter is now ripe for disposition.
II.
DISCUSSION
A district court has the authority to award attorneys’ fees to a
prevailing party in a patent case upon determining that the case is
“exceptional.” 35 U.S.C. § 285. A finding that a case is exceptional is
warranted “when there has been some material inappropriate conduct
related to the matter in litigation, such as willful infringement, fraud or
inequitable conduct in procuring the patent, misconduct during litigation,
vexatious or unjustified litigation, conduct that violates Fed. R. Civ. P. 11,
or like infractions.” Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393
F.3d 1378, 1381 (Fed. Cir. 2005). “Absent misconduct in conduct of the
6
litigation or in securing the patent,” a finding that a case is exceptional is
appropriate only where the prevailing party can show by clear and
convincing evidence that “both (1) the litigation is brought in subjective bad
faith, and (2) the litigation is objectively baseless.” Id. Under this standard,
“the plaintiff’s case must have no objective foundation, and the plaintiff
must actually know this.” iLOR, LLC v. Google, Inc., 631 F.3d 1372, 1377
(Fed. Cir. 2011). The “objectively baseless” standard under section 285 is
identical to the “objective recklessness” standard used to determine
enhanced damages and attorneys’ fees for willful infringement under In re
Seagate Technology, LLC, 497 F.3d 1360 (Fed. Cir. 2007) (en banc).
iLOR, 631 F.3d at 1377. “Thus, ‘objective baselessness’ depends not on
the state of mind of the party against whom fees are sought, but instead on
an objective assessment of the merits of the challenged claims and
defenses.” Old Reliable Wholesale, Inc. v. Cornell Corp., 635 F.3d 539,
544 (Fed. Cir. 2011) (citations and internal quotation marks omitted).
Unless a claim “is ‘so unreasonable that no reasonable litigant could
believe it would succeed,’ it cannot be deemed objectively baseless for
purposes of awarding attorney fees under section 285.” Id. (quoting iLOR,
631 F.3d at 1377).
7
In the present case, the Defendants argue that this Court should find
this case to be exceptional because Plaintiff’s claim interpretation and
infringement theory were objectively baseless, and because this litigation
was brought and pursued in subjective bad faith. Additionally, the
Defendants argue that Plaintiff’s litigation misconduct justifies the
imposition of an attorneys’ fee award. [Doc. 96]. The Plaintiff counters that
its proposed claim construction was supported by a plausible reading of the
intrinsic evidence. It further denies the existence of any bad faith in
bringing the litigation, arguing that it had conducted an appropriate pre-suit
investigation and obtained an opinion of counsel as to infringement prior to
filing suit. Finally, the Plaintiff denies engaging in any litigation misconduct,
arguing that much of the expense claimed by the Defendants is attributable
to their unreasonable impatience and to the combative nature of their
litigation strategy. [Doc. 97].
Central to the issue of infringement in this case was the construction
of the phrase “dimensioned for the passage therethrough,” a phrase which
appears in each of the independent claims (Claims 1, 6, and 8) to describe
the openings of the claimed strap. In Claim 1, for example, the openings
are described as “being dimensioned for the passage therethrough of a
8
main body portion of a second identical tie down strap for the redirection of
the second identical tie down strap when the elastic main body portion
defining said opening is elongated.” ‘464 Patent, Col. 6, line 64 to Col. 7,
line 4. Plaintiff maintained throughout this litigation that the phrase
“dimensioned for the passage therethrough” as used in Claim 1 means that
each of the openings are large enough to allow the main body portion of
another strap to pass through them, even if some deformation of the first
strap must occur as the main body portion of the second strap passes
through. [See Doc. 56 at 10-11]. The Court rejected this proposed
construction, both in denying the Plaintiff’s motion for preliminary injunction
and in its final Claim Construction Order. [See Docs. 46 at 17, 71 at 1819]. In rejecting the Plaintiff’s proposed construction, the Court reasoned
that the plain language of Claim 1 did not support the Plaintiff’s contention
that the opening in the first strap could be “dimensioned” by the very act of
passing the second strap through the opening:
The commonly accepted meaning of the term
“dimensioned” is “form[ed] to the required
dimensions.” Merriam-Webster Online Dictionary,
http://www.merriam-webster.com/dictionary/dimensi
oned (last visited June 10, 2010). Thus, the claim
describes a series of openings that are “form[ed] to
the dimensions required” for the passing through of a
second strap. The claim further describes each of the
9
openings in the main body portion of the tie down
strap as “being dimensioned. . . when the elastic main
body portion defining said opening is elongated.” ‘464
Patent, Col. 6, line 66 to Col. 7, line 4 (emphasis
added). The plain meaning of this claim language
suggests that the first strap must achieve the
dimensions required for the passage therethrough of
the main body of a second strap by the act of
elongation.
The plain language of Claim 1 does not support the
Plaintiff’s contention that passage of the second strap
may be accomplished by deformation of the strap
opening during the passage itself. The claim provides
that each opening is “dimensioned for the passage
therethrough” of the main body portion of a second
strap. Notably, the claim does not recite that the
opening is dimensioned by the passage therethrough
of a second strap. Indeed, if the strap opening was
not properly dimensioned prior to the second strap
passing through, such that deformation of the strap
opening was required to allow the second strap to
pass through, then the opening was not properly
“dimensioned” by the elongation of the strap and
therefore would not be encompassed by the plain
language of this claim.
[Doc. 71 at 14-15].
The Court went on to analyze the intrinsic evidence and determined
that dimensioning of the strap by elongation was “the only construction
supported by the plain language of the claim and the intrinsic evidence of
record.” [Id. at 18] (emphasis added). In so concluding, the Court
specifically found that the Plaintiff’s proposed construction of the
10
“dimensioned” element of Claim 1 lacked any support in the specification or
prosecution history:
Under the Plaintiff’s proposed construction of the
“dimensioned” element, some ‘minor deformation’ of
the strap’s opening would be permitted as the main
body portion of the second strap passes through the
opening, but any “substantial deformation” would not
. . . . This proposed construction finds no support
in any of the intrinsic evidence. No reference is
made in the claim language to any deformation of the
strap, whether “minor” or “substantial.” Moreover,
there is nothing in the specification which would
support the Plaintiff’s reading of this claim
language. . . .
*
*
*
The Plaintiff contends that Claim 1 merely requires
that “the openings are large enough to allow the
second strap through without excessively loading the
first strap” and the “recommended stretching
tolerance of the [first] strap is not exceeded.” [Doc.
56 at 10]. This construction, however, is not
supported by any intrinsic evidence. Nothing in
the specification refers to “excessively loading” the
strap or the “recommended stretching tolerance” of
such strap. Nor does the prosecution history cited
by the Plaintiff support this proposed
construction. In the passage cited by the Plaintiff
[Doc. 53-2 at 57], the Applicant urged for the
allowance of Claim 1 by expressly arguing that the
elongateability of the claimed strap permits it to be
dimensioned for the passage therethrough of another
strap. Nothing in this section of the prosecution
history refers to “excessive loading” or a
“recommended stretching tolerance” as to the reason
for the claimed “dimensioned” limitation.
11
[Id. at 16, 17-18] (emphasis added).
The Court is mindful that “[c]laim interpretation is not always an exact
science, and it is not unusual for parties to offer competing definitions of
even the simplest claim language.” Q-Pharma, Inc. v. Andrew Jergens
Co., 360 F.3d 1295, 1301 (Fed. Cir. 2004). In determining whether a
party’s claim interpretation constitutes evidence of bad faith, the issue is
not whether such interpretation was correct, “but only whether it was
frivolous.” Id. A claim interpretation is not frivolous where it “follow[s] the
standard canons of claim construction and [is] reasonably supported by the
intrinsic record.” Id. Here, the Plaintiff’s claim interpretation found no
support either in the plain language of the claims or the intrinsic record of
the patent at issue and was therefore frivolous.
The Plaintiff’s bad faith is further evidenced by the inadequacy of the
investigation undertaken prior to filing this lawsuit. The Plaintiff sought the
opinion of patent counsel to evaluate the prospect of a patent infringement
suit against the Defendants, and Plaintiff received such an opinion in the
form of a letter dated November 26, 2008.2 In this letter, patent counsel
2
In support of its opposition to the Defendants’ motion, the Plaintiff has submitted
this letter to the Court [Doc. 97-1] and has waived any attorney-client privilege that
attached to this communication. [See Doc. 97 at 7].
12
concludes that “there is a strong case for direct infringement of claim 1.”
[Doc. 97-1 at 4]. He states that he reached this opinion “by analyzing the
claims much as a court considering the question would do, determining
what the meaning of each word is in the context of the specification and
whether any special considerations may have altered the common
meaning of any key words” and then “compar[ing] the claims to the
accused device to determine if each limitation could be fairly said to be
met.” [Id.].
A chart attached to the opinion letter purports to “provide[ ] the details
of that analysis.” [Id.]. This chart identifies the limitations of Claim 1,
counsel’s interpretation of each of these limitations, and an opinion as to
whether each limitation is present in the accused product. [Id. at 6].
Significantly, however, the chart contains no explanation of counsel’s claim
construction and his application of the claim limitations to the accused
product. There are no citations to the specification or prosecution history,
and no analysis is provided to explain why counsel construed the patent
terms the way in which he did. Thus, while counsel construed the
“dimensioned” limitation to mean that “[t]he holes are large enough to allow
the main body portion of another strap to pass through them,” he offered no
13
analysis or citations to intrinsic evidence to support this construction. [Id.].
Further, counsel concluded that this limitation is present in the infringing
device [id.], but he did not explain how or why he reached this conclusion.
While recognizing that it is “somewhat difficult to get [the accused strap] to
pass through the hole” [id.], he offers no analysis of how, despite this
difficulty, this claim language can be read to support a finding of
infringement.
Of course, “[t]he fact that an infringement opinion may not have
mentioned every detail of the patented or the accused design does not
necessarily render the opinion wrong or unreliable.” Brooks Furniture, 393
F.3d at 1384. Counsel’s opinion, however, fails to adhere to the standard
canons of claim construction and is so lacking in any fundamental analysis
or evidentiary support that the Plaintiff’s reliance upon this opinion as a
basis for alleging infringement of Claim 1 was simply unreasonable and
reflects a lack of good faith. Indeed, this opinion letter is so utterly lacking
that the Court concludes that no reasonable litigant could believe that an
infringement claim could succeed based on this opinion. See Old Reliable,
635 F.3d at 544.
14
Counsel’s opinion further demonstrates that Plaintiff lacked a good
faith basis for bringing an infringement action based on Claims 6 and 8.
Patent counsel did not offer any analysis of these claims, as he did not
believe that either claim was directly infringed by the accused product. [Id.
at 4 (“We have not fully analyzed claims 6 and 8, because those claims
require multiple straps, and the straps appear to be sold only in single units
-- which allows a single strap to be immediately ruled out for infringement
purposes.”)]. Nevertheless, counsel opined that these claims “might form
the basis for a claim for contributory infringement or for infringement by
inducement,” and thus recommended that these claims be pled as well.
[Id.] (emphasis added).
Consistent with this recommendation, Plaintiff specifically alleged
infringement of these claims. [See Complaint, Doc. 1 at ¶¶18, 22, 27-28].
Despite counsel’s unsupported speculation that “we can make a good
argument for contributory infringement or inducement of [Claims 6 and 8],
because the [accused] straps are specifically and explicitly designed to be
used together” [Doc. 97-1 at 6], the Plaintiff has never identified any acts by
the Defendants which would constitute contributory infringement or
15
infringement by inducement, nor has the Plaintiff identified any third party
who engaged in infringing conduct at the behest of the Defendants.
Again, counsel’s opinion is so lacking in any fundamental analysis or
evidentiary support that the Plaintiff’s reliance on this opinion in asserting
infringement of Claims 6 and 8 was unreasonable and reflects a lack of
good faith. Counsel’s opinion is in fact so deficient in this regard that the
Court concludes that no reasonable litigant would rely upon it. See Old
Reliable, 635 F.3d at 544.
The case presents a scenario markedly different from that presented
to the Federal Circuit in Brooks Furniture, 393 F.3d 1378. In that case,
while noting that counsel’s analysis appeared to be “reasonable,
comprehensive, and competent,” the district court found counsel’s ultimate
conclusions regarding infringement to be unreasonable, and therefore, the
district court found that the patentee demonstrated bad faith in relying on
such opinions in asserting a claim of infringement. Id. at 1383.
The Federal Circuit reversed, concluding that the patentee’s reliance
on counsel’s opinion did not constitute clear and convincing evidence of
bad faith:
The district court described the attorney's opinion as
appearing to be “reasonable, comprehensive and
16
competent.” Such an opinion cannot be transformed
into the opposite extreme of unreliability and
incompetence, simply because the court reached a
different conclusion on the merits of infringement.
Bringing an infringement action does not become
unreasonable in terms of [35 U.S.C. § 285] if the
infringem ent can reasonably be disputed.
Infringement is often difficult to determine, and a
patentee's ultimately incorrect view of how a court will
find does not of itself establish bad faith. The several
opinions of counsel and other expert opinions
obtained by [the patentee] are not charged with
having been obtained for specious “cosmetic”
purposes, and their analysis of the designs is not
unreasonable.
Id. at 1384.
Unlike the opinion at issue in Brooks Furniture, the infringement
opinion obtained by the Plaintiff in the instant case cannot be said to be
“reasonable, comprehensive, and competent.” Counsel’s opinion does not
reflect a detailed review of the proper procedure to follow in determining
infringement, nor does it contain any explanation or analysis to support the
application of this procedure in comparing the accused products to the
patented claims. The unreasonableness of counsel’s opinion, and of
Plaintiff’s reliance on that opinion, stems not from the quality of the
conclusion reached but rather from the complete lack of analysis
underlying that conclusion.
17
In sum, the Court finds that counsel’s opinion is completely devoid of
analysis and fails to provide an objective basis for bringing suit for
infringement of the ‘464 Patent. Rather than demonstrate the Plaintiff’s
subjective good faith, the opinion of counsel instead demonstrates that the
Plaintiff’s pre-filing investigation was wholly inadequate, that the Plaintiff
lacked any intrinsic evidence to support its claim of infringement of Claim 1,
and that the Plaintiff lacked any reasonable basis to accuse the Defendants
of infringing Claims 6 and 8.
The Defendants have shown by clear and convincing evidence that
the Plaintiff instituted this action based on a wholly inadequate and
unreasonable pre-filing opinion of counsel, and persisted in relying upon a
construction of the claim terms that was both contrary to the plain meaning
of those terms and entirely devoid of support in the intrinsic record. For
these reasons, the Court concludes that the Plaintiff’s infringement claim
was objectively baseless and subjectively lacking in good faith.
While these findings alone would be sufficient to deem this case
exceptional, the Court further finds several instances of Plaintiff’s conduct
in this litigation were so vexatious and unjustified so as to warrant the
imposition of fees in this case. See Brooks Furniture, 393 F.3d at 1381
18
(noting case can be exceptional where there has been “vexatious or
unjustified litigation . . . or like infractions”). “Where a party engages in
litigation misconduct, fees can be awarded pursuant to section 285 even
absent clear and convincing evidence that an asserted claim or defense is
objectively baseless.” Old Reliable, 635 F.3d at 549.
First, the Plaintiff persisted in a frivolous theory that the accused
straps were “manufactured of a cheap and inferior material” and that they
“pose[d] a substantially increase risk of malfunction and injury,” such that
the “selling of the accused straps as the substantial equivalent of the
Plaintiff’s genuine straps” caused the Plaintiff injury. [Doc. 1 at ¶37]. The
Plaintiff first asserted this theory by alleging a claim for unfair and
deceptive trade practices under North Carolina law. The Defendants
moved to dismiss this claim for failure to state a claim. The Plaintiff did not
respond to the Defendants’ motion within the time required. Instead, eight
days after its response was due, the Plaintiff moved for an extension of
time to respond; however, in doing so, the Plaintiff failed to offer any
explanation for its failure to seek such relief prior to the time the response
was due. The Court denied the Plaintiff’s request for an extension and
19
granted the Defendant’s motion to dismiss, concluding that the Plaintiff’s
allegations of actual injury were“speculative.” [Doc. 18 at 7].
Despite the dismissal of the unfair and deceptive trade practices
claim, the Plaintiff continued to assert the same speculative allegations in
seeking preliminary injunctive relief on its infringement claim. [See Doc. 38
at 4 (alleging that continued sale of the accused strap was likely to cause
irreparable harm to goodwill “by suggesting that the patented design, and
not the Accused Strap’s inferior rubber, is responsible for failures that are
actually caused by these cheap, inferior materials”). In support of its
request for injunctive relief, the Plaintiff submitted the Declaration of Mark
Whitaker, the inventor of the patented strap. [Doc. 38-2]. In his
Declaration, Whitaker opined that the accused strap “appears to be made
of an inferior grade of rubber that is not resistant to weathering and
cracking due to exposure,” and that as a result, “the Accused Strap is
substantially more likely to break during overstretching than one of” the
Plaintiff’s straps. [Id. at ¶¶8, 9]. Whittaker opined that because of the
inferior grade of rubber used to manufacture the accused strap, “the
danger of catastrophic breaking and unexpected recoil, as well as
associated consumer injury or death, is substantially heightened” [Id. at
20
¶9], and that because of the visual similarities between the Plaintiff’s strap
and the accused product, “there is a substantial likelihood that a consumer
injured by one of the Accused Straps would mistakenly believe that [the
Plaintiff] is the manufacturer of the Accused Straps and force [the Plaintiff]
to defend itself in a product liability lawsuit.” [Id. at ¶10]. The Court
excluded these opinions, noting that Whitaker failed to provide any factual
basis or foundation for his assertions. [Doc. 46 at 8-9]. The Court further
found that Whittaker’s opinion regarding the potential for catastrophic
failure of the accused strap was “merely speculation about what might
occur in the future if the Accused Strap fails and if a consumer is injured.”
[Id. at 9]. Noting Plaintiff’s five-month delay in seeking injunctive relief, and
the “remote, speculative” nature of Plaintiff’s claims of injury to its goodwill,
the Court went on to conclude that Plaintiff had failed to demonstrate a
likelihood of irreparable harm and denied the request for a preliminary
injunction. [Id. at 22, 23].
Furthermore, Plaintiff unnecessarily extended this litigation by filing
an untimely notice of appeal with the Federal Circuit and, when it became
evident that the Defendants sought to dismiss the appeal due to its
untimeliness, by filing a motion in this Court in an effort to salvage the
21
untimely appeal. Plaintiff’s motion asked the Court to recharacterize its
summary judgment response brief as a notice of appeal or to otherwise
treat its filing of a Notice of Appeal as a motion to extend the time for filing
an appeal. In seeking this extraordinary relief, Plaintiff cited no basis in the
Federal Rules of Civil Procedure. The Defendants were forced to respond
to this motion, in addition to seeking dismissal of the appeal within the
Federal Circuit. Plaintiff’s actions therefore caused the Defendants to incur
needless litigation expense and unnecessarily prolonged the proceedings
before this Court. These acts of litigation misconduct further justify the
Court’s finding that this case is exceptional.
For the foregoing reasons, the Court finds and concludes that this
case is “exceptional” within the meaning of 35 U.S.C. § 285. Accordingly,
the Court will grant the Defendants’ motion for an award of attorneys’ fees
and costs 3 incurred in defending this litigation.
3
The Plaintiff argues that the Defendants should be denied their costs because
they failed to file a bill of costs in a timely manner. [Doc. 97 at 13]. This argument is
without merit. The Court’s October 1, 2010 Order modified both the timing and
procedure for seeking costs by permitting the Defendants to seek such costs by motion
and by extending the deadline for filing such motion until sixty days after resolution of
the Federal Circuit appeal. [Doc. 88]. The Defendants’ motion for costs was therefore
both timely and procedurally proper.
22
ORDER
IT IS, THEREFORE, ORDERED that the Defendants' Motion for
Costs and Attorneys’ Fees [Doc. 93] is GRANTED.
IT IS FURTHER ORDERED that the Defendants shall submit a
properly supported fee petition within fourteen (14) days of entry of this
Order. The Plaintiff may file a response to the Defendants’ fee petition
within fourteen (14) days of the filing of the petition. The Defendants may
file a reply to the Plaintiff’s response within seven (7) days after the filing of
the response.
IT IS SO ORDERED.
Signed: July 13, 2011
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