sub-header

Patterns of Vexatious Litigation Are a Relevant Consideration in Awarding Attorney's Fees in Patent Infringement Cases

| Karl W. KowallisHans L. Mayer

ELECTRONIC COMMUNICATION TECHNOLOGIES, LLC V. SHOPPERSCHOICE.COM, LLC

Before PROST, DYK, and WALLACH. Appeal from the United States District Court for the Southern District of Florida.

Summary: The grant or denial of attorney fees requires consideration of a party’s manner and pattern of litigation when abuses are alleged.                

After the district court found Plaintiff ECT’s asserted claim invalid under 35 U.S.C. § 101, Defendant ShoppersChoice sought attorney's fees. ShoppersChoice presented evidence of ECT’s litigation pattern seeking low-value license fees and forcing settlements. The evidence also showed that ECT consistently failed to proceed in patent family litigation past claim construction and showed no intention of testing the strength of its patents on the merits. Prior to the district court's attorney fees decision, ShoppersChoice provided an opinion from another district court awarding attorney fees against ECT in a case involving the same claim. That opinion detailed plaintiff’s pattern of vexatious litigation. Nonetheless, the district court found that the case was not exceptional and denied ShoppersChoice’s motion for attorney fees. 

The Federal Circuit reversed and remanded. The Federal Circuit found that the district court clearly erred by failing to address ECT’s manner of litigation and the broader context of its lawsuit against ShoppersChoice.  The Federal Circuit also held it was error for the district court not to consider the objective unreasonableness of ECT’s infringement claim, particularly in view of the record before it which included a different district court’s opinion that no reasonable patent litigant would have believed that the asserted patent was viable.

Editor: Paul Stewart