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Sue L. Robinson: Fees Motion Incorrect Vehicle for Analyzing Enforceability

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On Friday, District Judge Sue L. Robinson resolved an atypical motion for attorney fees. By its motion, a prevailing defendant sought reimbursement on the ground that plaintiff alleged inequitable conduct rendered the subsequent litigation frivolous. The catch? The Court never actually ruled on the unenforceability issue:

“Given the fact that plaintiff’s claims of infringement asserted against defendants have been dismissed with prejudice, defendants are asking me to make a substantive determination as to the validity of a patent, under the guise of a motion for attorney fees, when a court would not otherwise have jurisdiction to do so. I decline to undertake such an analysis.”

Novo Nordisk A/S v. Sanofi-Aventis, C.A. No. 05-645-SLR (D. Del. Sept. 26, 2008) (Robinson, J.).

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