Following her decision last summer granting Butamax’s motion for summary judgment of non-infringement and invalidity of certain patent claims in its ongoing litigation with Gevo, Judge Robinson recently considered Butamax’s request for a Section 285 exceptional case determination and award of attorneys fees. Applying the guidance set out in Octane Fitness, Judge Robinson found that this was not an exceptional case. Gevo, Inc. v. Butamax Advanced Biofuels LLC, et al., C.A. No. 13-576-SLR, Memo. at 2-4 (D. Del. Aug. 26, 2014).
Butamax characterized the claims resolved by summary judgment as a “scenario where a plaintiff is offered the opportunity to investigate and verify facts before filing an infringement action, and instead refuses that offer and immediately files a baseless suit, and loses on summary judgment.” Id. at 3. Judge Robinson explained, however, that the “parties at bar are involved in a race to develop a commercial isobutanol recovery process, a complex and unpredictable technology” and that “Gevo’s scepticism of Butamax’s representations regarding non-infringement and its research and commercialization plans” was therefore justifiable. Id. Accordingly, “Gevo’s conduct in the case at bar was not unreasonable, nor is there evidence of ‘subjective bad faith.’” Id. at 4.