COPPER INNOVATIONS GROUP, LLC v. NINTENDO CO., LTD et al

Filing 149

MEMORANDUM ORDER denying 137 Defendants Nintendo Co., Ltd. and Nintendo of American Inc.'s motion for Attorney fees and Non-taxable Costs. Signed by Judge David S. Cercone on 4/17/13. (mwm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
COPPER INNOVATIONS GROUP,
LLC,
Plaintiff,
v.
NINTENDO CO., LTD., NINTENDO
OF AMERICA INC., SONY
CORPORATION, SONY COMPUTER
ENTERTAINMENT, INC., and SONY
COMPUTER ENTERTAINMENT
AMERICA, INC.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

2:07cv1752
Electronic Filing

MEMORANDUM ORDER
AND NOW, this 17th day of April, 2013, upon due consideration of defendants Nintendo
Co., Ltd. and Nintendo of American Inc.'s motion for Attorney fees and Non-taxable Costs and
the parties' submissions in conjunction therewith, IT IS ORDERED that [137] the motion be, and
the same hereby is, denied.
As noted by plaintiff: "Copper presented an amended infringement contention that was
based on the Court's claim construction and the evidence. The Court struck that theory, as
untimely brought, eight months later, and on the same basis struck the summary judgment
response." It then granted defendant's summary judgment based on the motion as presented.
In presenting this theory, plaintiff was entitled to test the boundaries of Local Patent Rule
3.7 and in doing so plaintiff did not venture into a course of conduct warranting sanctions under
either 35 U.S.C. § 285 or 28 U.S.C. § 1927. Leeway properly is permitted for colorable
advancement of new and/or expansive applications of the law regardless of whether such
attempts are successful in the first instance. Furthermore, the fact that plaintiff chose to

judiciously limit the issues presented on appeal does not change the nature of plaintiff's approach
in litigating its claims to conclusion in this court or otherwise warrant the extraordinary relief
requested.

s/ David Stewart Cercone
David Stewart Cercone
United States District Judge

cc:

Raymond P. Niro, Esquire
Patrick F. Solon, Esquire
Timothy J. Haller, Esquire
Douglas M. Hall, Esquire
Gene A. Tabachnick, Esquire
Kirstein R. Rydstrom, Esquire
Robert W. Faris, Esquire
Anna B. Folger, Esquire
(Via CM/ECF Electronic Mail)

2