Neurovision/NuVasive Trademark Infringement Action.
U.S. District Judge Dale Fischer (C.D. Cal.) recently denied Neutrovision Medical Products’ request for attorney’s fees against NuVasive, Inc. under the trademark “exceptional” circumstance Lanham Act fee-shifting statute. Neutrovision won a $300 million verdict infringement verdict, but District Judge Fischer believed NuVasive had potentially meritorious defenses and would not have been surprised had the verdict gone the other way.
Blackberry/Mformation Patent Infringement Action.
Earlier this week, the Federal Circuit denied Blackberry, Ltd.’s bid to obtain an award of attorney’s fees against Mformation Software Technologies under the “exceptional” circumstance fee-shifting section of the Patent Act (section 285). Blackberry had obtained a $147 million verdict, but it was overturned by the district judge and then the Federal Circuit found no infringement in an earlier appeal. Mformation argued it was within its rights to appeal, with the Federal Circuit apparently agreeing.
Both these decisions certainly show that a lower court’s view of a case, even if different from the jury as far as ultimate result, does influence many fee petition requests where wide discretion is conferred by the lower court with respect to fee entitlement.