{"id":2816,"date":"2020-07-01T17:23:50","date_gmt":"2020-07-01T22:23:50","guid":{"rendered":"https:\/\/patents.harnessip.com\/?p=2816"},"modified":"2020-07-04T09:10:44","modified_gmt":"2020-07-04T14:10:44","slug":"past-history-is-as-relevant-as-current-conduct-in-attorneys-fee-award","status":"publish","type":"post","link":"https:\/\/patents.harnessip.com\/?p=2816","title":{"rendered":"Past History is as Relevant as Current Conduct in Attorneys’ Fee Award"},"content":{"rendered":"\n

In Electronic Communication Technologies, LLC v. SHOPPERSCHOICE.COM, LLC<\/a>, [2019-2087] (July 1, 2020) the Federal Circuit vacated and remanded the district court’s denial of an award of defendant’s attorneys’ fees.<\/p>\n\n\n\n

After its motion for judgment on the pleadings that the asserted claim of U.S. Patent No. 9,373,261 was not patent eligible, defendant filed a motion for an award of its attorneys fees. In \u201cconsidering the totality of the circumstances,\u201d the District Court determined the case was not exceptional, citing the Lanham Act, 15 U.S.C. \u00a7 1117), and denied the motion.<\/p>\n\n\n\n

The Federal Circuit agreed with defendant that the district court abused its discretion in weighing relevant factors, and by applying the incorrect attorney fee statute. The Federal Circuit held that the District Court clearly erred by failing to address ECT\u2019s manner of litigation and the broader context of ECT\u2019s lawsuit against ShoppersChoice. The Federal Circuit pointed out that there was evidence that ECT sent standardized demand letters and filed repeat patent infringement actions to obtain low-value \u201clicense fees\u201d and forcing settlements, and that ECT, under its former name Eclipse, filed lawsuits against at least 150 defendants, alleging infringement of claims in the \u2019261 patent and in other patents in the \u2019261 patent\u2019s family. ECT\u2019s demand for a low-value settlement\u2014ranging from $15,000 to $30,000\u2014and subsequent steps\u2014such as failure to proceed in litigation past claim construction hearings\u2014indicates the use of litigation to achieve a quick settlement with no intention of testing the strength of the patent or its allegations of infringement. The Federal Circuit also pointed to a prior California district court decision awarding attorneys fees against ECT, for its in terrorem enforcement tactics, and the fact that the principals of ECT where also associated with \u201cone of the most prolific\u201d non-practicing entity plaintiffs in the United States.<\/p>\n\n\n\n

The Federal Circuit complained that there was no mention of the manner in which ECT litigated the case or its broader litigation conduct<\/em>, saying “[s]Such conduct is a relevant consideration.” While a district court need not reveal its assessment of every consideration of \u00a7 285 motions, it must actually assess the totality of the circumstances, and by not addressing the adequate evidence of an abusive pattern of ECT\u2019s litigation, the District Court failed to conduct an adequate inquiry and so abused its discretion. The Federal Circuit instructed that a pattern of litigation abuses characterized by the repeated filing of patent infringement actions for the sole purpose of forcing settlements, with no intention of testing the merits of one\u2019s claims, is relevant to a district court\u2019s exceptional case determination under \u00a7 285.<\/p>\n\n\n\n

The Federal Circuit also said that the district court failed to sufficiently address the objective weakness of Claim 11.<\/p>\n\n\n\n

The Federal Circuit vacated and remanded the case for the district court to consider, in a manner consistent with its opinion, ECT\u2019s manner of litigation and the objective unreasonableness of ECT\u2019s infringement claims, and further reference the correct attorneys’ fees provision (35 U.S.C. \u00a7 285), rather than the parallel statute for trademark cases (15 U.S.C. \u00a7 1117).<\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

In Electronic Communication Technologies, LLC v. SHOPPERSCHOICE.COM, LLC, [2019-2087] (July 1, 2020) the Federal Circuit vacated and remanded the district court’s denial of an award of defendant’s attorneys’ fees. After its motion for judgment on the pleadings that the asserted … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[44],"tags":[],"class_list":["post-2816","post","type-post","status-publish","format-standard","hentry","category-attorneys-fees"],"post_mailing_queue_ids":[],"_links":{"self":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/2816","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=2816"}],"version-history":[{"count":1,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/2816\/revisions"}],"predecessor-version":[{"id":2817,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/2816\/revisions\/2817"}],"wp:attachment":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=2816"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=2816"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=2816"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}