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Judge Stark Considers Exceptional Case Motions

Chief Judge Stark recently denied a motion for attorney’s fees under § 285. As listed by the Court, Defendants’ factual basis for seeking fees included that Plaintiff “was ‘on notice’ as to doubts about its ‘standing to sue’ early in the litigation, but made no attempt to demonstrate that it possessed ‘all substantial rights’ in the asserted patents . . . continued litigating after the Court dismissed Plaintiff’s Complaint for lack of standing . . . [and] caused Defendants to incur over three million dollars in ‘attorneys’ fees and costs.’” Clouding IP, LLC v. EMC Corp., et al., C.A. No. 13-1455-LPS, Memo. Or. at 2 (D. Del. Sept. 30, 2015). Judge Stark found that the Plaintiff had presented a good faith reading of the patent purchase documents and that “Plaintiff had a good faith, though ultimately incorrect, belief that it had standing to suethroughout the litigation. In particular, the Court agrees with Plaintiff’s statement that ‘[i]t is illogical to believe that [Plaintiff] would incur the significant tie and expenses associated with patent litigation all the while believing that it lacked standing, especially because a party can challenge standing until the last moments of a case.” Id. at 4. His Honor concluded, “[a]s long as the test for awarding attorney fees turns on whether the case is ‘exceptional,’ the Court is obligated to consider the instant case in comparison to the full panoply of patent cases with which it has been involved, and needs to assess if the instant case is in some meaningful sense ‘uncommon,’ ‘rare,’ or ‘not ordinary.’ Having undertaken this analysis, the Court concludes that nothing about the instant case stands out as ‘exceptional’ in any respect.” Id. at 5. In another decision issued on the same day, Judge Stark granted § 285 fees based on His Honor’s finding that the case “stands out from others” and is exceptions. See Nova Chemicals Corp., et al. v. The Dow Chemical Co., C.A. No. 13-1601-LPS, Memo. Op. (D. Del. Sept. 30, 2015)

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