Category Archives: Attorneys Fees

Federal Circuit Affirms Inequitable Conduct for Withholding Evidence and Failing to Correct Representations to PTO

Author: Kristi L. McIntyre
Editor: Lauren J. Dreyer

In Ohio Willow Wood v. Alps South, Nos. 2015-1132, -1133 (Fed. Cir. Feb. 19, 2016), the Federal Circuit affirmed a finding of inequitable conduct.

OWW asserted infringement against Alps South, who sought reexamination of the claims. Appealing a rejection from the reexamination, OWW argued before the Board that certain testimony the examiner relied upon in making his rejection was uncorroborated. The Board agreed, reversing the examiner’s rejection and explaining that the examiner erred in crediting uncorroborated testimony, and the claims were confirmed.

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Treble Attorneys’ Fees Recoverable for Defending Against Fraudulently-Obtained Patent

Author: Kevin D. Rodkey
Editor: Lauren J. Dreyer

In Transweb, LLC v. 3M Innovative Properties Co., No. 14-1646 (Fed. Cir. Feb. 10, 2016), the Federal Circuit affirmed the district court’s finding that 3M was liable for a Walker Process antitrust violation because it had fraudulently obtained its patent through inequitable conduct and sought to enforce the patent. The court concluded that treble attorneys’ fees can serve as the basis for antitrust damages.

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Factors Other Than Attorney Performance Will Not Enhance Attorney Fee Award

Authors: Yieyie Yang, Ph.D.
Editors: Kevin D. Rodkey

In Lumen View Technology LLC v., Inc., Nos. 2015-1275, -1325 (Fed. Cir. Jan. 22, 2016), the Federal Circuit affirmed the district court’s finding that Lumen View’s case was exceptional and awarding attorneys’ fees, but vacated the district court’s enhancement of the fees awarded under 35 U.S.C. § 285.

The Court rejected the district court’s determination to increase the fee award based on an expedited schedule because it fell within the disfavored “results obtained” rationale. The Court also explained that the district court’s use of enhanced attorneys’ fees to deter future conduct was incorrect because “deterrence may be a consideration when determining whether to award attorney fees,” but “it is not an appropriate consideration in determining the amount of a reasonable attorney fee.” Explaining that factors outside the realm of attorney performance are not accepted to justify an enhancement, the Court vacated the district court’s fee award enhancement that was based on an expedited schedule and deterrence of future conduct. The Court then remanded for further consideration of the attorneys’ fee award.

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