Following the grant of summary judgment of non-infringement, defendant sought to recover its attorney’s fees under 35 U.S.C. Section 285, 28 U.S.C. Section 1928, and the court’s inherent powers due to significant litigation misconduct by the plaintiff.  Although the district court had outlined many examples of the plaintiff’s misconduct and held the case to be exceptional under Section 285, the court ultimately denied defendant’s request for fees, stating, without further explanation, that delays occurred on both sides, motion practice occurred on according to normal litigation practice, and there is no reason to believe that more fees were incurred by defendants than would have been incurred absent the vexatious behavior.  The Federal Circuit held that, although the award of fees is within the district court’s discretion, there is nothing in the record that substantiates the court’s decision not to award fees.  Accordingly, the court vacated and remand for reconsideration of whether, and to what extent, fees are warranted.  The court further stated that, where the court finds litigation misconduct and that a case is exceptional, it must articulate the reasons for its fee decision.

Oplus Technologies, Ltd. v. Vizio, Inc., Case No. 2014-1297 (April 10, 2015); Opinion by: Moore, joined by Prost and O’Malley; Appealed From: District Court for the Central District of California, Pfaelzer, J. Read the full opinion here.

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