An Exceptional Loss

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An Exceptional Loss


In a recent panel decision, MarcTec, LLC v. Johnson & Johnson and Cordis Corp., the Federal Circuit once again affirmed a decision hitting an exceptional plaintiff with an exceptional attorneys’ fees award.

In MarcTec, the lower court found that the Plaintiff engaged in litigation misconduct, raising “baseless” and “frivolous” allegations of infringement and acting in “bad faith” in bringing and maintaining the litigation. In particular, the court criticized MarcTec for offering “junk science” to advance its claims, and for mischaracterizing both relevant claim construction law and the court’s ultimate claim constructions. The Federal Circuit affirmed, noting that the evidence was sufficient to show that the plaintiff (1) acted in bad faith in filing a baseless infringement action and continuing to pursue it despite no evidence of infringement, and (2) engaged in vexatious and unjustified litigation conduct (including offering expert testimony that was “untested and untestable,” and ignoring language in the patent specification and prosecution history that directly contradicted its arguments at claim construction) .       

The pursuit of the chase, once it becomes clear in claim construction that that dog won’t hunt, exposes plaintiffs to just such fee awards as these. Reining in abusive patent litigation tactics and techniques is an admirable step by the Federal Circuit.

Posted by Stacy Stitham

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