In a recent Memorandum Order, Judge Richard G. Andrews denied without prejudice defendants’ motion to declare the action an exceptional case pursuant to 35 U.S.C. § 285. Sprint Communications Company L.P. v. Comcast Cable Communications, LLC, C.A. No. 12-1013-RGA (D. Del. Aug. 18, 2016). The jury had initially found that defendants infringed certain of plaintiff’s patents, and awarded plaintiff $27.6 million in damages. Id. at 1. Judge Andrews subsequently granted defendants’ motion for judgment as a matter of law and, in the alternative, granted defendants’ motion for a new trial on infringement. Id. at 1-2. Plaintiff appealed, and the appeal is pending.
Judge Andrews denied the motion without prejudice for several reasons:
One, a Federal Circuit decision on the appeal is likely to make the resolution of this motion easier. It is entirely possible that the Federal Circuit could reverse the judgment in this case, thereby mooting the fees motion. It is possible that the Federal Circuit could affirm, and indicate perhaps indirectly through what it writes – that this is a close case. It is also possible that the Federal Circuit could issue a Rule 36 affirmance. A Rule 36 affirmance would be unlikely to be, of much assistance. Overall, deciding the issue in light of the decision on appeal is likely to make the decision easier and better.
Id. at 3. Judge Andrews also noted that he was “very doubtful of the merits of [the] motion.” Id. Judge Andrews explained that his “holistic and contemporaneous evaluation of the litigation was that the argument and conduct of both sides was within the mainstream for these sorts of cases.” Id. at 4.