Delaware Patent Litigation Report : Delaware Intellectual Property Lawyer & Attorney : Morris James Law Firm : Delaware Patent Litigation Report

Defendant contends it is entitled to fees under 28 U.S.C. § 1927, F.R.Civ.P. 41(d) and 35 U.S.C. § 285.  With respect to § 1927, defendant claims plaintiff multiplied proceedings by filing in California and that bad faith can be implied because plaintiff should have known no subject matter jurisdiction existed.  With respect to § 285, defendant argues the case is exceptional in that plaintiff knowingly advanced baseless arguments and switched forums to avoid a dismissal on the merits.  The court finds that § 1927 should be invoked only where an attorney has multiplied proceedings in an unreasonable and vexatious manner thereby increasing the cost of the proceedings and doing so in bad faith or by intentional misconduct.  Fees are not warranted because the court is not persuaded that plaintiff’s counsel acted in bad faith.  Similarly, the court will not require plaintiff to pay the costs of the dismissed California action because those actions concerned different products.  Finally, a case is exceptional by proving inequitable conduct before the PTO; litigation misconduct; vexatious, unjustified and otherwise bad faith litigation; a frivolous suit or willful infringement.  The court finds defendant has failed to prove by clear and convincing evidence this case is exceptional.  The court finds no bad faith in litigating the California and Delaware actions and there is no allegation of misconduct aside from the prosecution of those actions, and no record of unprofessional behavior by counsel.