Opinion
CV. No. 00-1675-HA.
September 17, 2004
ORDER
Pending in this action are a motion brought by plaintiff Old Town Canoe Company ("Old Town") seeking entry of Judgment (Doc. # 207), and defendant Glenwa's Motion for Recovery of Attorneys' Fees and Expenses (Doc. # 220). Defendant Glenwa's motion for fees prompted two additional motions from plaintiff Old Town: a Motion to Strike Defendant's Request for Sanctions pursuant to Federal Rule of Civil Procedure 11 (Doc. # 228), and a Motion to Strike Defendant's Motion for Fees (Doc. # 230).
ANALYSIS
This court is authorized to award reasonable attorney fees to the prevailing party in "exceptional" patent cases. See 35 U.S.C. § 285; see also Mahurkar v. C.R. Bard, Inc., 79 F.3d 1572, 1580 (Fed. Cir. 1996); S.C. Johnson Son, Inc. v. Carter-Wallace, Inc., 781 F.2d 198, 200 (Fed. Cir. 1986). "Only after the prevailing party has established the exceptional nature of the case by clear and convincing evidence should the district court decide whether or not to make the award." Machinery Corp. of America v. Gullfiber AB, 774 F.2d 467, 471 (Fed. Cir. 1985), citing Reactive Metals Alloys Corp. v. ESM, Inc., 769 F.2d 1578, 1582 (Fed. Cir. 1985).
The determination that the case is exceptional must be supported by clear and convincing evidence, and the award of fees is made pursuant to the court's discretion. Id. "Whether or not a district court ultimately finds a case exceptional on motion for attorney fees, it is important that the court provide some indication of the reasoning underlying its decision to provide a basis for meaningful appellate review." Superior Fireplace Co. v. Majestic Products Co., 270 F.3d 1358, 1377 (Fed. Cir. 2001). Conduct that can form a basis for determining that a case is exceptional includes willful infringement, misconduct during litigation, vexatious or unjustified litigation, or other misfeasant behavior such as fraud or inequitable conduct by the patentee in procuring the patent. Id. (citations omitted).
A finding that a case is exceptional then permits the court to weigh intangible as well as tangible factors, including "`the degree of culpability of the infringer, the closeness of the question, litigation behavior, and any other factors whereby fee shifting may serve as an instrument of justice.'" Id. at 1378, quoting Nat'l Presto Indus., Inc. v. West Bend Co., 76 F.3d 1185, 1197 (Fed. Cir. 1996).
Although plaintiff Old Town initially obtained a favorable summary judgment ruling, defendant assert that it accomplished this by "willfully distorting basic principles of patent claim construction and crossing the line between fair advocacy and misrepresentation of the facts." Glenwa's Motion for Recovery of Fees at 6. Specifically, defendant accuses plaintiff of presenting false testimony about the flat surface on Glenwa's Tandem kayak being contoured, and of ignoring the insurmountable obstacle posed by the prior art represented by the Raider Double. Plaintiff also disregarded defendant's May 2001 letter and Rule 11 memorandum addressing the futility defendant perceived in plaintiff's case. The remainder of defendant's motion describes the relative merits of the parties' respective positions in this litigation, particularly as viewed after the Federal Circuit's remand. Although counsel terms plaintiff's positions as "reprehensible distortions of fact and law," Glenwa's Motion for Recovery of Fees at 13, this court concludes that the motion is unsupported by clear and convincing evidence of willful infringement, misconduct during litigation, vexatious or unjustified litigation, or other misfeasant behavior such as fraud or inequitable conduct on the part of plaintiff.
Glenwa references press releases issued by plaintiff during the life of this litigation. Nothing has been presented regarding these releases that rises to the level of misconduct or illegitimacy. None of the other litigation strategies cited by Glenwa on behalf of its fees motion strikes the court as being so uncommon as to be exceptional. Notwithstanding Glenwa's accusations that plaintiff's legal positions were frivolous, this court concludes that clear and convincing evidence to support these accusations is lacking. In so concluding, the court refers to the findings and reasoning expressed in the court's Opinion and Order issued October 4, 2001. Although later reversed in part by the Federal Circuit, this ruling and the analysis contained within nevertheless serves as adequate grounds for rejecting post-remand claims that plaintiff's positions were frivolous. Glenwa's subsequent attacks upon the evidence presented by plaintiff fail to establish that this case is exceptional enough to warrant an award of fees.
In light of this, defendant Glenwa's Motion for Recovery of Attorneys' Fees and Expenses is denied, and plaintiff's Motion to Strike Defendant's Request for Sanctions pursuant to Federal Rule of Civil Procedure 11 is granted. Plaintiff's Motion to Strike Defendant's Motion for Fees is denied as moot. With these motions resolved, the court shall proceed with entry of Judgment in this matter. Accordingly, plaintiff's Motion for Entry of Judgment is granted in part. This court will now proceed to issue a Judgment separately, after consideration of the parties' respective positions regarding the appropriate scope of the Judgment.
CONCLUSION
For the reasons provided above, defendant Glenwa's Motion for Recovery of Attorneys' Fees and Expenses (Doc. # 220) is denied and plaintiff's Motion to Strike Defendant's Request for Sanctions pursuant to Federal Rule of Civil Procedure 11 (Doc. # 228) is granted.
Plaintiff's Motion to Strike Defendant's Motion for Fees (Doc. # 230) is denied as moot. Plaintiff's Motion for Entry of Judgment (Doc. # 207) is granted in part, and this court shall issue Judgment separately after considering the parties' briefing on the matter in light of the rulings provided herein.
IT IS SO ORDERED.