District Judge’s Findings Of Certain Conduct Showed Case Likely Was Exceptional Under Patent Fee-Shifting Statute.
In Oplus Technologies, Ltd. v. Vizio, Inc., No. 2014-1297 (Fed. Cir. Apr. 10, 2015), a district judge denied attorney’s fees and expert witness fees to defendant Vizio, Inc. in a patent infringement suit even though the federal judge found lots of improper litigation activities by plaintiff (with plaintiff “fessing” up to some of them even on appeal). Vizio appealed the fee denial to the Federal Circuit, arguing it was “exceptional” for purposes of shifting fees and expert witness expenses under 35 U.S.C. § 285.
The Federal Circuit agreed. Although the district judge suggested both sides were at fault and the defense should have moved for summary judgment sooner, the appeals court determined that the discovery abuses, unprofessionalism, and changing litigation positions by plaintiffs did result in increased expenses and frustrations, requiring a reversal and remand in favor of Vizio.