Even Fees/Costs Spent On Lost Claims Were Recoverable.
35 U.S.C. § 285 does allow district judges discretion to award attorney’s fees and costs in a patent infringement case that is “exceptional,” which usually means a determination that the litigation was brought and/or prosecuted in bad faith. This provision was used to award a hefty fees/costs award in Checkpoint v. All-Tag Security, E.D.Pa. Case No. 01-CV-2223 (Nov. 2, 2011 attorney’s fees order).
Plaintiff lost a patent infringement action against defendants Sensormatic Electronics Corp. and All-Tag Security. U.S. District Judge Petrese B. Tucker decided the defense should be awarded a cumulative total of $6.5 million in attorney’s fees and costs under the patent “exceptional” fee-shifting provision. The district judge disallowed a litigation fee bonus owed by defendant Sensormatic to its attorneys. However, she did not exclude $1.1 million in fees and costs for claims that defendants lost, citing cases indicating that no allocation needed to be made where the fees were incurred under a statute like this shifting fees due to plaintiff’s inequitable conduct in pursuing the infringement litigation in the first place.